W. Mut. Benevolent Ass'n v. Pace

• Decision Date: 29 February 1888
• Citation: 23 Neb. 494,36 N.W. 816
• Parties: WESTERN MUT. BENEVOLENT ASS'N v. PACE.
• Court: Nebraska Supreme Court

23 Neb. 494

36 N.W. 816

WESTERN MUT. BENEVOLENT ASS'N

v.PACE.

Supreme Court of Nebraska.

February 29, 1888.

Syllabus by the Court.

Where a defendant has entered his appearance in an action and absents himself on the day of trial, he is not entitled to have the judgment against him set aside under section 1001 of the Civil Code of Nebraska. Strine v. Kaufman, 12 Neb. 423, 11 N. W. Rep. 867.

Error to district court, Gage county; BROADY, Judge.

Action by James Pace against the Western Mutual Benevolent Association, brought before a justice of the peace. Judgment for plaintiff rendered in the absence of defendant was set aside by the justice. On proceedings in error the district court reversed the action of the justice, and reinstated the judgment. To review this action the defendant brings error.L. W. Colby, for plaintiff in error.

No appearance contra.

REESE, C. J.

The original action in this case was instituted before a justice of the peace. Summons was issued returnable January 30, 1886, and was personally served. On the return-day both parties appeared, and by agreement the cause was continued until the 8th day of March, at which time the defendant did not appear, and plaintiff obtained judgment. On March 10th defendant filed a motion to set aside the judgment as having been rendered in its absence, and confessed judgment for costs. The motion was sustained, and the judgment set aside, the case being set for trial on the 16th day of March. Notice of the opening of the judgment, and time and place for trial, were duly given. At the time set for trial defendant in error appeared and objected to the jurisdiction of the court, which objection was overruled by the justice. He made no further appearance, and on motion of plaintiff in error the cause was dismissed at his costs. The case was then taken to the district court by proceedings in error, where the action of the justice of the peace in setting aside the judgment was reversed, and the original judgment reinstated. Defendant in the original action, plaintiff in error here, brings the case to this court by proceedings in error.

The sole question involved is whether, under the provisions of section 1001 of the Civil Code, defendant having appeared on the return-day of the summons and consented to a continuance, then not appearing at the time to which the case was adjourned, such a judgment can be set aside as a judgment rendered against it in its absence. This question was decided in ...