Strine v. Kauffman

• Decision Date: 04 April 1882
• Citation: 11 N.W. 867,12 Neb. 423
• Parties: STRINE v. KAUFFMAN.
• Court: Nebraska Supreme Court

12 Neb. 423

11 N.W. 867

STRINE

v.KAUFFMAN.

Supreme Court of Nebraska.

Filed April 4, 1882.

Error from Otoe county.

C. W. Seymour and T. B. Stevenson, for plaintiff.

Watson & Wodehouse, for defendant.

LAKE, C. J.

In Strine v. Kingsbaker, 10 N. W. REP. 534, we held that where a judgment is rendered against a defendant on a default by a justice of the peace, he may as a matter of right have it set aside as provided in section 1001 of the Code, (Comp. St. 645.) And in Clendenning v. Crawford, 7 Neb. 474, the same principle was recognized in the ruling, that where a defendant fails to appear as commanded by the summons, and judgment goes against him, he cannot appeal, his remedy being the one given by this section of the statute.

But the precise question here presented was not involved in those two cases. The question now to be decided is whether after an appearance by the defendant, issue joined, and a continuance of the case, he may, upon absenting himself on the day of trial, still have the benefit of that provision of the law. On the one hand it is strongly insisted that he may, while on the other it is contended that he may not, and that the right belongs only to defendants who have failed to appear to the action.

It must be admitted that the question is not free from embarrassment. Our duty is, of course, to ascertain and declare the will of the law-makers in framing the provision. It is declared that “when judgment shall have been rendered against a defendant in his absence, the same may be set aside” upon certain conditions. The required “conditions” were complied with, and the question must be determined by the meaning to be given to the words “in his absence,” as used in the quotation. Are they to be taken literally, and embracing every case of personal absence of a defendant from the presence of a justice when judgment is rendered against him? If so, then the collection of demands in justices' courts can be postponed indefinitely at the option of the debtor. If, after appearance and issue joined, a defendant has the power, by absenting himself on the day of trial, to have the judgment set aside once, what is there to prevent him from doing so again or, indeed, any number of times that he may choose? There is certainly nothing, if the construction contended for by counsel for the plaintiff in error is the true one.

Indeed, if so literal a construction were given, a defendant would be enabled, even after trial had, if the justice...