41 Neb. 831 | Neb. | 1894
E. E. Ringer sued William L. Beard before a justice of the peace in Douglas county. On October 18, 1890, the justice rendered a judgment dismissing Ringer’s action. October 28, 1890, Ringer filed with and had approved by the justice an appeal bond. On the 8th day of November, 1890, Ringer filed in the office of the clerk of the district court a certified transcript of the proceedings had before said justice, as provided by section 1008 of the Code of
1. The reasons relied upon by Beard in the district court for setting aside the default and judgment are not set out in his motion, but he says they will appear from the affidavits attached thereto. We cannot say whether the district court abused its discretion in refusing to set aside this default and judgment or not, as the affidavits filed by Beard in support of the motion, and which contain the facts relied upon by him for setting aside the default, though incorporated in the record here, are not embodied in any bill of exceptions, and therefore we cannot consider them. Affidavits used in the district court in support of a motion to set aside a judgment must be embodied in a bill of exceptions if it is desired that this court should pass upon their sufficiency for the purposes for which they were used in the court below. (McMurtry v. State, 19 Neb., 147.)
2. Another argument of counsel for plaintiff in error here is that it appears from the record that at the time the judgment by default was entered against Beard, Ringer was himself in default in filing his petition, and that a party in default cannot default his adversary. If it be true that Ringer’s petition in the district court was filed out of time and without leave of the court and without any notice to-Beard, then Ringer was not entitled to a judgment by default against Beard. By section 1008 of the Code of Civil Procedure it is provided that a party appealing from a judgment of a justice of the peace shall,
Affirmed.