98 Neb. 558 | Neb. | 1915
This is a statutory proceeding against a garnishee to recover $48.55, the amount of an unpaid judgment, liability of defendant being based on the plea that the answer in garnishment is unsatisfactory. Rev. St. 1913, sec. 8385. The original suit was commenced before a justice of the peace. Plaintiff, on a claim for room rent, recovered a judgment against Wilkie Clark, a ball player, for $18 and costs. He appealed to the district court, where plaintiff again prevailed. The justice of the peace, however, had garnished the Lincoln Baseball Club, the employer of Clark, and the garnishee in its answer denied that it Avas indebted to him. The present action was instituted before a justice of the peace to recover from the garnishee the amount of its employee’s indebtedness to plaintiff, on the ground that-its answer is false. Plaintiff herein recovered judgment for the full amount of her claim, and defendant appealed to the district court. At the close of plaintiff’s testimony, the district court directed a verdict in favor of defendant, and plaintiff has appealed to this court.
Two questions are presented, and it is first argued that the district court erred in overruling a motion by plaintiff to dismiss the appeal on the ground that the appeal bond Avas not filed within the statutory period of ten days from the rendition of the judgment. Rev. St. 1913, sec. 8452. The determination of this question depends on the date of the “rendition of the judgment” for the purpose of filing an appeal bond. On an envelope containing the papers in the case of the justice of the peace, after the trial before him, made the following note:
“June 25th, 1912.
“Judgment is hereby entered in the above entitled case in favor of Cora L. Bishop and against the Lincoln Base*560 ball Club, a corporation, for tbe sura of $48.55 and costs of suit.”
Afterward, the justice of tbe peace changed tbe figure “5” in tbe date line to “8,” thus making it read “June 28, 1912.”- Judgment was entered on tbe docket of the justice of tbe peace June 28, 1912, but be subsequently sustained a motion by plaintiff to change tbe date of that entry to June 25, 1912. Tbe appeal bond was filed within 10 days from June 28, 1912, and tbe district court refused to dismiss tbe appeal. Is tbe ruling correct? A justice of the peace is required to keep a public record in what is known as “tbe docket,” but tbe statute makes no provision for entries on an envelope. The docket must contain, among other enumerated things, “the judgment of tbe justice, specifying tbe items of cost included, and tbe time when rendered.” Rev. St. 1913, sec. 8532, subd. 10. Tbe docket entry must be made at tbe time tbe judgment is rendered. Rev. St. 1913, sec. 8533. Judgments enforcing rights and authorizing the seizure of tbe property of litigants are not left to tbe uncertain memory of judicial officers or to memoranda prepared by them on loose papers. Tbe constitutional right of appeal does not depend on changed dates inserted by justices of tbe peace in unofficial documents. Tbe law does not recognize as a judicial record tbe unofficial minutes of a justice of tbe peace. Beuerlein v. Hodges, 10 N. Y. Supp. 505. According to statute, an appeal from a judgment of tbe district court must be commenced within six months “after tbe rendition of tbe judgment.” Rev. St. 1913, sec. 8203. That provision was construed in Bickel v. Butcher, 35 Neb. 761, overruling Horn v. Miller, 20 Neb. 98; the rule announced. being: “Tbe time within which an appeal may be taken from a decree of tbe district court does not begin to run until such decree has been entered of record, so that it is Avithin the power of tbe appellant to comply Avith tbe statute regulating appeals, by filing in this court a certified transcript of tbe proceedings of tbe district court.” In tbe opinion it was said: “But that the judgment must be made a matter of record in order to limit.
By analogy, the time for filing an appeal bond in an action before a justice of the peace does not begin to run until the judgment is entered on the docket, the statute requiring such a bond to be filed within ten days “from the rendition of the judgment.” Rev. St. 1913, sec. 8452. It follows that the trial court did not err in overruling the motion to dismiss the appeal.
The other proposition argued by plaintiff is assigned error in the refusal of the trial court to permit her to adduce secondary evidence showing the contents of the ledger account between defendant and Clark at the time of the garnishment. The account was in evidence before the justice of the peace, and the attorney for plaintiff testified that defendant’s counsel took the ledger away. The latter, however, said it was left with the justice of the peace. Though plaintiff’s attorney, prior to the trial before the justice of the peace, demanded an inspection of the ledger and obtained a copy of Clark’s account, he did not serve on defendant a notice to produce the book in any court, but relied upon opposing counsel to produce it in the district court. While a subpoena duces tecum was served on the defendant’s secretary, the record was not in his possession, and he said he was unable to find it in his office. As stated, there was proof that the ledger had been left with the justice of the peace,'but he was not called as a witness. In searching for a missing record and in accounting for its loss, diligence is required to make secondary evidence available. Samuelson v. Gale Mfg. Co., 1 Neb. (Unof.) 815; Dempster Mill Mfg. Co. v. First Nat. Bank, 49 Neb. 321. The last custodian should be produced as a witness. Jones, Evidence (2d ed.) sec. 213; Myers v. Bealer, 30 Neb. 280. The sufficiency of the foundation for secondary evidence is addressed to the discretion of the trial judge. Hapgood Plow Co. v. Martin, 16 Neb. 27; Bradstreet v. Grand Island Banking Co., 89 Neb. 590. In the present case an abuse of discretion in rejecting sec
Affirmed.