81 Neb. 725 | Neb. | 1908
On December 10, 1906, the appellant commenced this action before L. B. Burton, a justice of the peace of Cambridge precinct, in Furnas county. Summons was issued and made -returnable on the 17th of . December. Justice Burton, being unable to be present on the day set for trial, pursuant to the provisions of section 1092 of the code, requested G. E. Simon, the other justice of said precinct, to attend and hear the cause. On that day the parties appeared, and trial was had before justice Simon, resulting in judgment in -favor of the plaintiff. On the 27th of December the defendant, appellee herein, presented to Justice Simon an appeal bond, which was by him approved and entered upon the docket. Under the date of January 8, 1907, Justice Simon made and certified to a transcript of the proceedings had in the case, which was on the following day filed in the district court for Furnas county. Thereafter the plaintiff appeared specially in the district court, and filed objections to the jurisdiction of that court upon the following grounds: That no undertaking for appeal had been furnished by the defendant; that no undertaking had been approved by Justice Burton, or by any one authorized by him; that Justice Burton had not requested Justice Simon to approve the undertaking for appeal, as required by section 1007 of the code; and that no transcript of the proceedings had been filed by Justice Burton, and that no transcript was on file cer
Appellant contends that the cause was pending before Justice Burton; that Justice Burton had returned to Cambridge precinct on the 23d of December, 1906, and prior to the time when .the appeal bond was presented to Justice Simon and approved, and prior to the making of the transcript; that, upon the return of Justice Burton, Justice Simon was divested of all power to further act in the cause; and that the approval of the appeal bond by Justice Simon and the transcript made by him did not confer jurisdiction of the cause upon the district court. Section 1092 of the code is in the following language: “In case of-the sickness or other disability, or necessary absence of a justice, at the time appointed for trial, another justice of the same county may, at his request, attend in his behalf, and shall thereupon become vested with the powers, for the time being, of the justice before whom the summons was returnable. In that case the proper entry of the proceeding before the attending justice} subscribed by him, must be made in the docket of the justice before whom the writ was returnable. If the case be adjourned, the justice before whom the summons was returnable must resume jurisdiction.” Under this section of the statute, so long as the necessary absence of the justice before whom the case was commenced continued, the justice who was requested to attend in his behalf would retain jurisdiction to do and perform every act required in the proceedings, including the filing and approval of the appeal bond and the making of the transcript. The appellant does not contend otherwise. But
There can be no doubt that the same rule-applies to every question of fact which must be determ in <d by the district court upon evidence, whether oral or by affidavits. This court is not at liberty to consider any affidavits that
No error being apparent in the record, it is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.