Weitz v. Walter A. Woods Reaping & Mowing Mach. Co.

• Decision Date: 21 October 1896
• Citation: 68 N.W. 613,49 Neb. 434
• Parties: WEITZ v. WALTER A. WOODS REAPING & MOWING MACH. CO.
• Court: Nebraska Supreme Court

49 Neb. 434

68 N.W. 613

WEITZ

v.WALTER A. WOODS REAPING & MOWING MACH. CO.

Supreme Court of Nebraska.

Oct. 21, 1896.

Syllabus by the Court.

1. A motion for a new trial is not necessary to obtain a review of a decision of a district court reversing a cause brought to that court on error from a county court.

2. Prior to the taking effect of the act of the legislature of 1895 (Sess. Laws, c. 72), a county judge had no authority to allow and sign a bill of exceptions preserving the testimony taken upon the hearing of a motion to dissolve an attachment.

3. The clause of the act of 1895 whereby it is made to apply to all cases then pending cannot be so construed as to cure error in a judgment rendered prior to its passage, such judgment being based on a consideration of a bill of exceptions unauthorized when the judgment was rendered. Altschuler v. Snyder, 67 N. W. 869, 48 Neb. ___, followed.

Error to district court, Johnson county; Bush, Judge.

Action by the Walter A. Woods Reaping & Mowing Machine Company against T. T. Weitz, in the county court. Attachment dissolved. On error to the district court, the order dissolving the attachment was reversed, and the attachment reinstated, and defendant brings error. Reversed.J. Hall Hitchcock, for plaintiff in error.

T. Appelget and C. Rood, for defendant in error.

NORVAL, J.

This action was instituted in the county court of Johnson county, by the Walter A. Woods Reaping & Mowing Machine Company, a corporation, upon a promissory note executed by T. T. Weitz. At the same time a writ of attachment was sued out, and certain chattels of the defendant were attached. A motion was filed by Weitz to discharge the attachment upon two grounds: (1) The facts stated in the attachment affidavit are insufficient to justify the issuing of the writ. (2) The affidavit is untrue. This motion was heard on numerous affidavits filed in support thereof, and upon counter affidavits presented by the plaintiff, and was sustained on May 6, 1893, and the attachment discharged. Thereupon a judgment was rendered against the defendant for the amount due. Plaintiff prosecuted a petition in error to the district court, where the action of the county judge in dissolving the order of attachment was reversed, and the attachment reinstated. The defendant has brought the record to this court for review.

It is urged that the decision of the district court cannot be reviewed, because no motion for a new trial was presented or filed. This objection is without merit. Such a motion is not necesary to obtain a review of the judgment of a district court affirming or reversing an order or judgment made by a county court or justice of the peace. Newlove v. Woodward, 9 Neb. 502, 4 N. W. 237;Leach v. Sutphen, 11 Neb. 527, 10 N. W. 409;Claflin v. Bank, 46 Neb. 884, 65 N. W. 1056.

The sufficiency of the original attachment affidavit is not now questioned, nor did the county court vacate the attachment because of any defect either in the form or substance of the affidavit upon which the writ was based. The record shows that the attachmentwas discharged on the consideration of the evidence adduced. The action of the county court in that regard could not be reviewed by the district court, for the reason that neither at the time the motion to dissolve was sustained, nor when the order of reversal was rendered, did the county court possess any power or authority to sign a bill of exceptions preserving the evidence submitted on the hearing of such a motion. Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N. W. 161;Real v. Honey, 39 Neb. 516, 58 N. W. 136;Donaldson v. Fisher, 43 Neb....