57 Neb. 406 | Neb. | 1899
On March 12, 1884, there was rendered in the district court of Lancaster county a judgment for the defendants in a replevin action as follows: “It is.now by the court considered and adjudged that said defendants have a return of the property taken by said plaintiff on the writ of replevin herein named in the verdict of the jury herein, 'to-wit, one brown mare, one two-horse wagon, and one double harness, and that in case a return of said property cannot' be had, that the defendants have and recover of and from the said plaintiff Lydia Broadwater the sum of $140, the value of defendants’ possession of said property ns found by said jury.” On May 8, 1880, a motion was
It is argued that the court erred in not hearing evidence on the issues raised. To this it must be answered that it appears that evidence, and all that was offered, was received; hence this objection is of no avail.
Another point made in argument is that the application for revivor should have been by motion supported by affidavit and not by petition. This objection was not made in the trial court and cannot be for the first time raised in this. (Eckland v. Willis, 42 Neb. 737.) Furthermore, the petition was verified positively and would fill the requirements of an affidavit, and other affidavits, in which were embodied statements of the facts, were filed. There was nothing in the manner of procedure which, when attacked for the first time in this court, was a fatal defect. (Wright v. Sweet, 10 Neb. 190.)
It is also claimed that there was error in the proceedings, in that one of the defendants in the original action did not join or was not joined in the application to revive the judgment. This objection is made for the first time in this court. It was not presented in the trial court and will not be considered. (Eckland v. Willis, supra.)
There was, as we have before stated, a demand on behalf of plaintiff in error for a jury, and the refusal of this request is assigned as error. The application in this state for the revivor of a dormant judgment is to be by motion. (See Code of Civil Procedure, secs. 456-473.) And Avhere on an order to show cause the debtor files affidavit in which it is stated that the judgment sought to be revived has been paid or satisfied, it raises an issue for hearing. (Garrison v. Aultman, 20 Neb. 311; Reeves v. Plough, supra.) The motion provided for by our Code and by statutory enactment in some other states is a substitute for the writ of scire facias to revive dormant judgments, and under the former the same relief may be obtained as under the latter. (Freeman, Executions sec. 95.) To a writ of scire facias for the revival of a dormant judgment a plea of payment or satisfaction of the judgment may be interposed, and the issue raised should be submitted to a jury (Hartman v. Alden, 34 N. J. Law 518; 5 Field’s Lawyers’ Briefs p. 277); but if it be conceded — and we do not decide the question — that there
Affirmed.