48 Neb. 391 | Neb. | 1896
Before the county judge of Gage county, sitting as a justice of the peace, J. E. Cobbey sued Elmer Buchanan to recover for certain professional legal services which he alleged he had rendered Buchanan at his request, of the reasonable value of $50. An appeal was taken to the district court from the judgment of the county judge, where the case was again tried, resulting in a judgment of dismissal of Cobbey’s action, to reverse which he prosecutes to this court a petition in error.
1. The answer filed by Buchanan in the district court, so far as material here, interposed two defenses: (1) A general denial, and (2) a plea of infancy. Cobbey filed a motion in the district court to strike from the answer of Buchanan the defense of infancy, and the overruling of this motion is the first assignment of error argued here. It is insisted that the defense of infancy was not interposed before the county judge and could not, therefore, be interposed in the district court. It is the settled law of this state that a cause is to be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the first trial. (Darner v. Daggett, 35 Neb., 695, and cases there cited.) But in the case at bar Buchanan filed no answer or “bill of particulars,” as it is called in section 951 of the Code of Civil Procedure, before the county judge; and, so far as the record shows, Cobbey did not require that he should file one. Buchanan, then, before the county judge, was at liberty to interpose any defense he saw fit, and for anything we know, did interpose before the county judge the defense of infancy. There was nothing in the record transmitted from the county judge to the district court to advise the latter as to what issues were tried before the county judge, and therefore the district court did not err in overruling the motion of Cobbey to strike out the defense of infancy set up by Buchanan in his answer filed in the district court.
3. The plaintiff in error requested the district court to instruct the jury as follows: “The jury are instructed that even if they find from the evidence that Elmer Buchanan, at the time of his contracting the debt sued
Affirmed.