Searles v. Averhoff

• Decision Date: 04 February 1890
• Citation: 28 Neb. 668,44 N.W. 872
• Parties: SEARLES ET AL. v. AVERHOFF.
• Court: Nebraska Supreme Court

28 Neb. 668

44 N.W. 872

SEARLES ET AL.

v.AVERHOFF.

Supreme Court of Nebraska.

Feb. 4, 1890.

Syllabus by the Court.

1. Where a summons issued by a justice of the peace is made returnable at 10 o'clock A. M., and the defendant does not appear, the justice, before rendering judgment by default, must wait one hour,--till 11 A. M., common time.

2. If standard time is intended, the justice should so designate it in the summons. In the absence of proof to the contrary, the presumption is that common time was intended.

Error to district court, Franklin county; GASLIN, Judge.H. Whitmore and E. W. Metcalfe, for plaintiffs in error.

E. A. Fletcher, for defendant in error.

MAXWELL, J.

This action was brought by the plaintiffs against the defendant before a justice of the peace of Franklin county, upon a promissory note to recover the sum of $66.65 and interest. A summons was duly issued, and served on the defendant, requiring him to appear before said justice on December 17, 1887, at 10 o'clock A. M. At the time stated in the return of the summons, the plaintiffs appeared, but the defendant did not appear. The justice thereupon waited one hour, standard time, and rendered judgment by default against the defendant. Before 11 o'clock A. M., common time, the defendant appeared, and asked leave to make his defense to the action, which was refused. He thereupon took the case on error to the district court, where the judgment of the justice was reversed, and the cause set down for trial. From that judgment the case is brought into this court by petition in error. In many of the cities and towns of the state, standard time is used in conducting the schools, courts, and public meetings, to avoid the annoyance of two systems of measuring time. Standard time, however, in Franklin county, where this case was tried, is about half an hour faster than common time. Whether standard time is generally in use in the courts of that place does not appear. The presumption is that common time is that relied upon where there is nothing to show that a different mode of measuring time has been in general use. Where, therefore, the return of a summons is to be made at an hour named, standard time, the summons should so state. Otherwise it will be presumed that common time was intended. The judgment in this case, therefore, was rendered prematurely, and there was no error in reversing it on that ground. The judgment is therefore affirmed.

The other judges concur.