Royal Trust Co. of Chi. v. Exch. Bank of Cortland

• Decision Date: 23 September 1898
• Citation: 55 Neb. 663,76 N.W. 425
• Parties: ROYAL TRUST CO. OF CHICAGO v. EXCHANGE BANK OF CORTLAND ET AL.
• Court: Nebraska Supreme Court

55 Neb. 663

76 N.W. 425

ROYAL TRUST CO. OF CHICAGO

v.EXCHANGE BANK OF CORTLAND ET AL.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1. The words, “a transcript of the proceedings,” as employed in section 586 of the Code of Civil Procedure to designate what shall be filed with a petition in error, include within their meaning duly-certified copies of the original papers and pleadings in the trial court. which it is sought to present to the attention of the appellate court. The filing of the original papers and pleadings is not contemplated, and will not fulfill the requirements of the statute. School Dist. v. Cooper, 62 N. W. 1084, 44 Neb. 714;Moore v. Waterman, 58 N. W. 940, 40 Neb. 498.

2. The provisions of section 1001 of the Code of Civil Procedure, relative to setting aside a judgment by default, are applicable to practice in the county court in all civil actions regardless of the amount in controversy.

3. The order must be conditional in the first instance, and that notice of the time and place of trial be given to the adverse party is jurisdictional, and, unless given, the final order cannot be made. Tootle v. Jones, 27 N. W. 635, 19 Neb. 588.

4. If a conditional order has been made in the county court in a case which, by reason of the amount, calls for trial within term time, an order which finally overrules the motion to set aside the judgment may be made by the county judge during vacation, if both parties consent that an order be made in the matter at the time.

5. Where such an order has been made during vacation, it is voidable, not void; and, in the absence of proof or showing to the contrary, it will be presumed that the assent of the authority to make it at that time was given. Hansen v. Bergquist, 2 N. W. 858, 9 Neb. 269.

6. If a journal entry of a hearing and determination of a matter recites that a party to the action noted an exception to a ruling or order, it will be presumed that such party was present in person or by counsel. Rose v. Burr, 61 N. W. 593, 43 Neb. 358.

Error to district court, Lancaster county; Tibbets, Judge.

Action by the Royal Trust Company of Chicago against the Exchange Bank of Cortland and others. From an order reversing the order of the county court refusing to set aside a judgment for plaintiff, plaintiff brings error. Reversed.C. C. Flansburg, for plaintiff in error.

Davis, Hibner & Whitmore, for defendants in error.

HARRISON, C. J.

March 13, 1894, the plaintiff in error instituted an action in the county court of Lancaster county against defendants in error to recover the sum of $823.26, alleged to be its due from them. Summons were issued and served, returnable to the next term of the court, and on a day of such term, the parties having been served, and not appearing, a judgment by default was entered against them. This was done of date April 11th. With reference to the occurrences thereafter we will quote from the transcript of the county court record: “April 18, 1894, on motion of the defendants, and confession of judgment for costs this day filed, it is ordered and adjudged that the defendants pay the costs herein made to this date, taxed at $10.95, and that the default and judgment herein be set aside conditionally upon defendants notifying the plaintiff of the opening of said judgment, and the time and place of trial of said cause, according to law. Joseph Wurzburg. Acting County Judge.” “April 24, 1894, defendants file affidavit of W. J. Brown, and answer and cross petition. May 3, 1894, defendants file motion for security for costs. June 16, 1894, plaintiff files motion to overrule conditional order setting aside judgment, and to confirm original judgment, because conditional order has not been complied with. July 3, 1894, defendants' motion for security for costs is granted, and ordered that plaintiff file security by 13th instant. August 1, 1894, cause comes on to be heard on plaintiff's motion to set aside the conditional order setting aside the original judgment herein, and to confirm said original judgment, because said order has not been complied with. On consideration thereof I find that order has not been complied with, and it is ordered and adjudged that said conditional order be set aside, and that the original judgment herein be, and it is hereby, confirmed, and that plaintiff recover the costs of increase, taxed at $8.00. To this order the defendants except. August 8, 1894, defendants file affidavit alleging that the conditional order herein was complied with, and a notice served upon plaintiff of the filing of defendants' motion for security for costs, and that plaintiff has failed to comply with the order of the court to give security for costs.” The case was by the now defendants in error removed to the district court for review of the order, which, however worded, was, in effect, but a denial of the motion to set aside the judgment. In the district court the order of the county judge and the judgment were reversed, and the cause retained for trial. So much of the journal entry of the proceedings as we deem it necessary to particularly notice is as follows: “And this cause, having been heretofore, on a former day of this term of court, to wit, March 13, 1895, argued and submitted to the court upon the petition in error, transcript of proceedings had, and the original papers and pleadings in the county court of Lancaster county, Nebraska, now comes on for final determination; and, after due consideration, the court, being fully advised in the premises, finds that there is error in the proceedings and judgment of the said county court, in that the said county court erred in rendering judgment in vacation upon defendants' motion to set aside the conditional order made by the court, said motion being acted upon by the said county court on the 1st day of August, 1894, which is admitted by the parties hereto in open court to have been in vacation, and, the record not showing affirmatively that plaintiff in error was present in passing upon said motion at said time, the ruling of the county court in setting aside such conditional order and its judgment thereon is therefore reversed,...