Ryan v. State Bank of Neb.

• Decision Date: 10 November 1880
• Parties: RYAN v. STATE BANK OF NEBRASKA.
• Court: Nebraska Supreme Court

10 Neb. 524

7 N.W. 276

RYAN

v.STATE BANK OF NEBRASKA.

Supreme Court of Nebraska.

Filed November 10, 1880.

Error to the district court of Richardson county.

Tried below before Weaver, J., who rendered judgment on the verdict of a jury against Ryan, one of the defendants there, for $580.96, and costs of suit. Further facts appear in the opinion.Schoenheit & Thomas, for plaintiff.

J. H. Broady and Isham Reavis, for defendant.

LAKE, J.

The action below was brought by the bank to recover from the plaintiff in error, and other co-defendants alleged to have been sureties on his official bond, for damages occasioned by his neglect properly to enter upon the judgment record and index of the district court of which he was clerk a transcript of a judgment rendered by the probate court of Richardson county in favor of said bank, and against William Hall and others, so as to bind the real estate of said Hall as against subsequent purchasers.

The first of the alleged errors relates to the petition, which, it is claimed, was demurrable for the following reasons: First, that no copy of the bond sued on was attached to it, as is required by section 124 of the Code; second, that it is not stated “how or in what manner” the loss to the bank “was brought about;” third, that it is not alleged that an execution had been issued on the judgment and “returned nulla bona.”

These objections are all untenable. In the first place, the failure to attach to the petition a copy of the bond could not in any event be reached by demurrer, but only by motion. Besides, it should be remembered that the Code does not make such copy indispensable to a good petition. This rule has its exceptions, one of which is that where it is impossible to obtain a copy because of the loss or destruction of the original, it will not be required. Exceptions of this sort are contemplated by the last clause of the section just referred to, which declares that if a copy be “not so attached and filed, the reason therefor must be shown in the pleading.” Gen. St. 543. This petition is within the exception, it being alleged that the bond in question “has been lost and cannot be found,” although repeated and diligent searches had been made therefor.

As to how the loss to the bank “was brought about,” the petition is sufficiently full to show that by reason of the neglect of the clerk to do his duty concerning said transcript the lien of the bank's judgment upon Hall's land was defeated by a sale to a subsequent purchaser. In addition to this, it is alleged that the land in question was of more than sufficient value to satisfy the judgment, and that “at no time since the rendition of said judgment” has said Hall “had or owned any property of any description out of which to make said judgment, or any part thereof, except the said real estate.” And this last averment furnishes a sufficient answer to the third point, showing, as it does, that the issuing of an execution would have been but an idle ceremony, as nothing could possibly have been realized under it. We consider the petition clearly sufficient to support the judgment, and consequently to withstand a general demurrer. If more particularity or certainty were deemed essential to the defence, the supposed defect should have been presented to the court by motion, as directed by the last clause of section 125 of the Code of Civil Procedure. Gen. Stat. 543; Lash v. Christie, 4 Neb. 262.

Several of the alleged errors rest upon the assumption that it was not proved that the clerk was requested to enter this transcript on the judgment record. It is probably true that, taking the oral testimony alone, there was no sufficient evidence of such request. The only witness upon this point was the president of the bank, who could only swear that he took the transcript to the clerk's office for the purpose of having it so entered, delivered it to the clerk or his deputy, and paid 50 cents, the customary fee for such service. But taking this, together with the fact disclosed by the judgment record, that a defective entry of this identical transcript was made by the deputy clerk on the day of its presentation, and there is no want of evidence in this particular. The taking of the fee and the erroneous entry place this matter beyond question.

Another assumption, under which it is contended that certain testimony was erroneously admitted, is that the judgment of the probate court, having been rendered on the third Monday of the month, was void. Counsel claim that this results from a proper construction of the following provision in the act concerning probate courts, by which the commencement and duration of the regular terms are fixed, viz.: “It shall be the duty of the probate judge in each county to hold regular terms of the probate court at his office at the county seat, commencing at 9 o'clock A. M. on the first Monday of each calendar month, for the trial of such civil actions brought before such court as are not cognizable before a justice of the peace. Such regular term shall be deemed to be open, without any formal adjournment thereof, until the third Monday of the same month, when all causes not then finally determined shall be continued by such court to the next regular term. Gen. St. 265, § 7.

By the construction here contended for it will be seen that the term could not continue beyond the Saturday immediately preceding the third Monday of the month, after which time no judicial act, not even an order continuing the causes undisposed of, could be done in term cases, except rendering judgments by confession, as specially provided in the last clause of said section. But we are not prepared to so hold, although fully recognizing the fact that in the computation of time the use of the word “until” must be taken as implying an intention to exclude the day to which it refers. We think there is ample evidence in the section...