State ex rel. Galligher v. Holmes

Decision Date21 November 1893
Citation56 N.W. 979,38 Neb. 355
CourtNebraska Supreme Court
Syllabus by the Court.

1. Mandamus cannot be invoked for the purpose of correcting error committed by a court or other tribunal exercising judicial functions.

2. The appropriate and proper remedy for reviewing a decision of a justice of the peace in granting a new trial on the ground of fraud, partially, on undue means, is the ordinary one of the petition in error to the district court.

Error to district court, Douglas county; Irvine, Judge.

Action in the name of the state, at the relation of Theodore Galligher, against George Holmes, Jr., a justice of the peace, for mandamus. There was judgment for defendant, and relator brings error. Affirmed.D. Van Etten, for plaintiff in error.

Ambrose & Duffie, for defendant in error.


Relator and plaintiff in error brought his action in the court below for a mandamus to require the respondent, a justice of the peace of Douglas county, to issue an execution upon a judgment for costs, recovered before the respondent in a case wherein one Frank Jones was plaintiff, and the relator and one Elizabeth Galligher were defendants. An alternative writ was issued, and the respondent filed an answer thereto. The cause was heard on the alternative writ and answer, and the district court dismissed the action. The record shows that the above-mentioned case of Jones v. Galligher and Galligher was tried before the relator and a jury, and on the 14th day of September, 1891, the jury returned a verdict for the defendants. Thereupon, on said day, the justice rendered judgment upon the verdict, and that plaintiff pay the costs of the action. On the 17th day of the same month the said plaintiff, Jones, filed a motion with the justice to set aside the verdict and judgment, and for a new trial of the case, on the ground, among others, that the verdict was rendered by reason of the prejudice of the jury against the plaintiff. Hearing on the motion was set for September 19th, and notice was duly served upon the defendants, on which date counsel for the respective parties appeared before the justice, and by consent the hearing was continued until September 26th. On said last-mentioned date the motion was submitted to the justice, who took the same under advisement until September 29th, upon which date the motion was sustained, the verdict and judgment were set aside, and the cause set for trial on October 5, 1891. Prior to the last-named date this application for a mandamus was made to the district court.

The contention of the plaintiff in error is that the respondent had no power or authority to vacate the judgment in question and grant a new trial; therefore his action in the premises is a nullity. Section 983 of the Civil Code confers jurisdiction upon justices' courts to grant a new trial in cases where it is shown “that the verdict was obtained by fraud, partiality, or undue means at any time within four days after the entering of judgment.” Cox v. Tyler, 6 Neb. 297; Templin v. Snyder, Id. 491. As heretofore stated, one of the grounds in the motion on which the respondent assumed to act was the partiality of the jury, which is one of the causes enumerated in the section of the statute referred to above for granting a new trial by a justice of the peace. But it is said the respondent...

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