Volland v. Wilcox
Decision Date | 06 January 1885 |
Parties | GEORGE J. VOLLAND, PLAINTIFF IN ERROR, v. GEORGE H. WILCOX, DEFENDANT IN ERROR |
Court | Nebraska Supreme Court |
ERROR to the district court for Hall county. Heard below before GEORGE W. POST, J.
Reversed and remanded.
Dilworth & Smith, for plaintiff in error.
T. O C. Harrison, for defendant in error.
This action was brought in the county court of Hall county by the plaintiff against the defendant to recover the sum of $ 255.00 and interest upon two promissory notes, amounting in the aggregate to $ 250, and an account for $ 5. The defendant in his answer denies the account; "admits the execution of the notes, but alleges that they were given for a span of mares; that the plaintiff falsely represented that said mares were respectively five and six years of age; also, that he represented that said mares were true, sound, and kind, good brood mares, and a good, strong, reliable farm team." That "said mares were so old that they were unfit for work, and could not be used in farming because they were so old and weak that they could not stand any labor." It is also alleged that one of the mares died about six weeks after the purchase, and that the other was of no value whatever. The defendant claims damages in the sum of $ 300, without stating any special facts that would entitle him to special damages. He also pleads a set-off of $ 100 for the value of an ox taken by the plaintiff. The summons was issued June 19th, 1882, returnable July 3, 1882. At the time of the return of the summons the defendant appeared and required the plaintiff to give security for costs, which was given. An answer was then filed by the defendant, and the cause continued till the 12th day of July, 1882, at 9 o'clock A.M. On the 10th of that month Mr. Laird, the plaintiff's attorney, sent the following telegram to the county judge:
To which he received the following reply:
Laird thereupon sent a telegram to Mr. Abbott, as follows:
Laird also swears that at the time of sending the last dispatch he wrote to Judge Caldwell "stating the substance of said agreement." No copy of the letter is set out in the record, however, nor does it appear at what time it was received by the judge. It also appears that the word "Abbott," in the telegram from Caldwell to Laird, was a mistake of the telegraph operator, and should have been "Att'y." Mr. Abbott is not the defendant's attorney of record, and there is nothing to show that he was in any way connected with the case. On the 12th of July, 1882, at the time set for trial, the defendant appeared, and, after waiting one hour, the plaintiff or his attorney failing to appear, the defendant was sworn as a witness, and the court thereupon rendered judgment in his favor against the plaintiff for the sum of $ 131.25 and costs of suit. Two days thereafter Laird filed an affidavit setting up the above facts, with copies of the telegrams above referred to in support of a motion to set the judgment aside. The motion was overruled. The plaintiff then took the case on error to the district court, where the judgment was affirmed.
Section 7, of the act approved March 3, 1873, "concerning the organization, forms, and jurisdiction of probate courts," [Comp. St., chap. 20] is as follows:
Sec. 8 provides that,
Sec. 10 provides that, ...
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