Asch v. Wiley

16 Neb. 41 | Neb. | 1884

Reese, J.

The only question presented in this case is as to whether the district court erred in sustaining a motion to dismiss the appeal from the judgment of the county court.

The cause was tried in the county court of Stanton county, on the fifteenth day of February, 1882, and judgment rendered in favor of the plaintiff in the cause. On the twenty-fifth day of February, 1882, the defendant in that court filed his appeal bond with two sureties. The filing of the bond is recited in the docket of the county-judge, as follows: “And now, on this twenty-fifth day of February, 1882, comes the defendant and files the following bond for an appeal before me, Joseph Johnson, county judge of Stanton county, Nebraska.” The bond is then copied in the docket, and is followed by this endorsement: “ Executed in my presence and signed as above, but' not approved, this twenty-fifth day of February, 1883.” On the back of the bond is the following endorsement: “This bond was signed by Thomas Kingston on the twelfth day •of May, and was then approved by me. Joseph Johnson, county judge.”

The transcript was filed in the district court on the first day of the following term, which was on the twenty-sixth day of September, 1882, and on that day the parties appeared, and the plaintiff was allowed sixty days in which to file his petition. The defendant was allowed thirty -days thereafter in which to answer, and the cause was continued, as shown by" the journal of the court.

The plaintiff failed to file his petition within the time allowed by the court, but on the twelfth day of the following December filed a motion to dismiss the appeal, for the reason that the defendant failed to file the undertaking within the time provided by law. The motion was sustained and the appeal dismissed. In this we think the district court erred. The record shows that an appeal bond, in proper form, with two sureties, was presented to the county judge within the time required by law for taking ■the appeal; that it was accepted by him, filed, and spread •upon his docket. If the bond did not comply with the "requirements of the law it was the duty of the county judge to refuse to receive it and notify the party seeking to take the appeal of the fact, in order that he might at once procure the necessary sureties. There is nothing in the record •to show that he had any notice of the action of the county judge until tile twelfth of May, when he procured the additional signer.

There is another reason why the motion should have-been overruled. If the defendant in error, plaintiff below, intended to' make" any objection to the manner in Avhieh the appeal was taken, he should have done so before-any other action was taken in the cause. The record shows his appearance in the cause in the district court,., that he procured an extension of time beyond that fixed by statute in Avhieh to file his petition, that the time thus-fixed by the court was alloAved to expire, and while he was in default for want of a petition he filed the motion to dismiss. This was too late.

In Goodrich v. The City of Omaha, 11 Neb., 207, Cobb,. J., in writing the opinion, quotes with approval from the-case of Matson v. Connelly, 24 Ill., where it is said: '“Error- having been joined, the motion to dismiss the appeal comes too late. It would have prevailed if made at the-first instance, as the judgment does not amount to twenty-doll ars.”

The judgment of the district court is reversed, the appeal reinstated, and the cause remanded for further proceedings-in accordance Avith law.

, Reversed and remanded.

The other judges concur.