Cox v. Tyler

6 Neb. 297 | Neb. | 1877

Lake, Ch. J.

This is a petition in error to reverse the judgment of the-district court for Richardson county, by which an order of the county court vacating its former judgment and granting a new trial was set aside, and the original judgment in favor of the defendant in error fully restored.

It is contended on behalf of the plaintiff in error that the county court, being a court of record, has the same power and authority over its judgments, in the granting of new" trials, as is exercised by tbe district courts. But this position cannot be sustained. It is true that county courts are by the constitution made courts of record, but it by no means follows from this, that they are invested with the extensive jurisdiction here contended for.

By provision of our new constitution the statutes in force at its adoption, and not in conflict therewith, defining and regulating the jurisdiction of our former probate courts, were made applicable to their successors, the county courts. By section two of “ An act concerning the organization, powers, and jurisdiction of probate courts,” passed March 3,1873, it is provided that: “ Probate judges, in their respective counties, shall have and exercise the ordinary powers and jurisdiction of a justice of the peace, and shall have concurrent jurisdiction with the district court in all civil cases in any sum not exceeding five hundred dollars, exclusive of costs, and in actions of replevin where the appraised value of the property does not exceed that sum; and the provisions of the code of ci/oil procedure relative to justices of the peace shall, where no special provision is made by this subdivision, apptg to the proceedings in all civil actions prosecuted before said probate judges.”

It will be noticed that this section extends not alone to cases in which a justice of the peace would have jurisdiction, but to all civil actions prosecuted before sañd probate judges,” and consequently, as no provision is made “ in this subdivision ” respecting the conducting of a trial, nor as to the powers of the judge over the judgment after it is once entered, we must resort to “ the code of civil procedure relative to justices of the peace,” for direction in this matter.

Some reliance seemed to be placed by counsel on section eleven of the act first referred to, as authorizing a resort to the rules of practice established for the district courts in similar cases. But this section expressly limits the use of these rules to the “pleading and process ” of the county courts. They furnish no guide whatever in the practice now under consideration.

By section nine hundred and eighty-three, chapter seven, title thirty of the code of civil procedure, it is provided upon what grounds and within what time after the rendition of a judgment, a justice of the peace may grant a new trial. This section is in these words: “It shall be lawful for a justice, before whom a cause has been tried, on mofion, and being satisfied that the verdict was obtained by fraud, partiality, or undue means, at any time within four days after the entering of judgment to grant a new trial,” etc. This section being by express provision of statute made applicable to county courts, must be held to fix the extent of their power over their judgments in the granting of new trials; and it is only when the judge is “ satisfied that the verdict was obtained by fraud,- partiality, or undue means,” that he is authorized to vacate a judgment when once duly entered. Here the grounds upon which the court assumed to act were simply that the judgment was not supported by the evidence, and was contrary to the law of the case.

We are of the opinion that the judgment of the district court is correct, and it must be affirmed.

Judgment accordingly.