56 Neb. 475 | Neb. | 1898
This action was commenced by defendant in error before a justice of the peace of Douglas county to recover of the plaintiff in error and Charles E. Bates the sum of $50, asserted to be his due from them by reason of services by him rendered to them under and by virtue of a contract. In the justice’s court the defendant in error was accorded a judgment against the company as follows:
“It is therefore considered by me that the said plaintiff recover from the defendant Bates-Smith Investment Company the sum of ($30) thirty dollars and costs of this suit herein expended, taxed at $3.60.”
It will be noticed that there is no reference in the foregoing judgment to Charles E. Bates, his rights, or the disposition of the action to the extent it was against him. An appeal for the company was perfected to the district court, where, in the petition filed and the instructions of the court to the jury during the trial, the action was conducted and treated as against the investment company and Bates. There was no answer for Bates and no appearance by or for him. The verdict was as follows:
“Oscar A. Scott, Plaintiff, v. The Bates-Smith Investment Company, Defendant.
“We, the jury duly impaneled and sworn to try the issues joined between the said parties, do find for the said plaintiff, and assess his damages at the sum of $52.64 (fifty-two and 64-100 dollars).”
The judgment was against the company and Charles E. Bates and each of them. The company presents the case in this court for review.
It is contended for the plaintiff in error that as there wias no judgment in justice court against Charles E. Bates, the appeal of the cause to the district court, which was for the investment company, did not remove the action to the appellate court to the extent it was against Bates and involved his rights and liabilities. The court, at the inception of the action, seems to have considered the claim a separable one, and in accordance with this view rendered judgment against the investment company alone. It is true the justice ignored the other party to the suit in its adjudication, but to this there was no objection on the part of any person. The appeal for the company was perfected, and there is no tenable course of reasoning from which it can be concluded that Charles E. Bates was a party to the action during its pendency ■and trial in the district court. The district court had no jurisdiction of him; and the judgment, to the extent it was agiainst him, was a nullity'. But he is not here complaining. The error proceedings are for the company which had appealed the action and submitted itself to the jurisdiction of the court.
It is of the assignments of error that the court excluded certain testimony sought to be elicited from a witness,—'one J. S. Bryant—during his cross-examination. The objection interposed was that it was improper cross-examination. The objection was well taken; hence it was not error to sustain it and exclude the testimony at that time.
Charles E. Bates has not complained of his inclusion in terms in the judgment, and no action need be taken as to him or his rights. It follows from what has been said herein that the judgment as to plaintiff in error will be
Affirmed.