Sullivan v. Benedict

• Citation: 36 Neb. 409,54 N.W. 676
• Parties: SULLIVAN v. BENEDICT.
• Decision Date: 16 March 1893
• Court: Supreme Court of Nebraska

36 Neb. 409

54 N.W. 676

SULLIVAN

v.BENEDICT.

Supreme Court of Nebraska.

March 16, 1893.

Syllabus by the Court.

1. The law governing appeals from judgments before justices of the peace applies to appeals from the county court to the district court. The party desiring to appeal must file an appeal bond within 10 days from the rendition of the judgment, and within 30 days from the date of the judgment he must procure and file in the district court a certified transcript of the proceedings.

2. Where, in an action brought in the county court within the jurisdiction of a justice of the peace, the defendant enters his appearance, but absents himself on the day of trial, he is not entitled to have the judgment against him set aside, under the provisions of section 1001 of the Code, but may prosecute an appeal to the district court.

3. The record entry of a judgment rendered in the county court, as embodied in a duly authenticated transcript, imports absolute verity, and cannot be varied or contradicted by extrinsic evidence in the appellate court.

Error to district court, Holt county; Kinkaid, Judge.

Action by E. H. Benedict against Michael M. Sullivan. There was judgment for plaintiff, and defendant appealed to the district court. A motion to dismiss the appeal was sustained, and defendant brings error. Affirmed.H. M. Uttley, for plaintiff in error.

E. H. Benedict, in pro. per.

NORVAL, J.

This action originated in the county court of Holt county, and from a judgment in favor of the plaintiff, E. H. Benedict, the defendant, Sullivan, prosecuted an appeal to the district court, when, on motion of the plaintiff, the appeal was dismissed. The rulingof the district court is now assigned for error. The appeal was properly dismissed, for the reason the same was not taken within the time limited by statute. The judgment was rendered against the defendant by the county court on the 23d day of September, 1889, while the appeal undertaking was not given until the 3d day of November, 1890, and the transcript was not filed in the district court until nine days later. So that more than a year had elapsed after the rendition of the judgment before any steps were taken to obtain a review of the case by appeal. The law governing appeals from judgments before justices of the peace regulates appeals from judgments of the county courts. The appeal undertaking must be given within 10 days from the rendition of the judgment, and the appellant must procure and file his transcript of the proceeding in the district court within 30 days after the entry of the judgment. The plain requirements of the statute not having been complied with, the district court did not err in sustaining the appellee's motion to dismiss the appeal.

Plaintiff in error claims that the judgment was rendered in the county court by default, and having applied to have it set aside under section 1001 of the Code, and the application having been denied, he was entitled to an appeal, and that the time for taking and perfecting it did not begin to run until his motion to have the judgment opened up was overruled. The cases of Clendenning v. Crawford, 7 Neb. 474; Gudtner v. Kilpatrick, 14 Neb. 353, 15 N. W. Rep. 708; and Adams v. Thompson, 18 Neb. 543, 26 N. W. Rep. 316,--are cited to sustain the proposition contended for. These decisions are to the effect that an appeal does not lie from a judgment rendered by default until after the defendant against whom the same is entered has applied to have the...