14 Neb. 347 | Neb. | 1883
This action was brought in the county court of Gage county, and from thence by appeal to the district court for said county, on an appeal bond, of which the following is a copy:
“Know all men by these presents, That we, S. D. Kilpatrick and Byron Bradt, of the county of Gage, Nebraska, are held and firmly bound unto David Gudtner, in the penal sum of $360.00, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally and firmly by these presents. Witness our hands and seals this 30th day of June, 1881. The consideration of the above obligation is such that, whereas, the said Daniel Gudtner did on the 20th day of June, 1881, before J. E. Cobbey, county judge in and for Gage county, recover a judgment against the above bounden S. D. Kilpatrick, for the sum of $134.53, and $25.45 costs of suit, from which said judgment the said S. D. Kilpatrick has taken an appeal to the district court of the county of Gage aforesaid, and the state of Nebraska.
The plaintiff, after setting out the recovery of the judgment recited in the said bond, the taking of an appeal from said judgment by the said S. D. Kilpatrick, and the execution and delivery of such bond by him with the said Byron Bradt as surety thereon, alleged that on the — day of October, 1881, the said appeal was dismissed by the district court on motion of the said plaintiff, and that upon the dismissal of said appeal, the aforesaid judgment became and was in full force and effect in thé said county court. Plaintiff further alleged in and by his said petition, that he, the said plaintiff, having caused a transcript of said judgment to be filed in the office of the clerk of the district court, and execution to be issued upon said judgment against the goods and chattels, lands and tenements of the said defendant, S. D. Kilpatrick, which execution had been returned wholly unsatisfied; and that said S. D. Kilpatrick has no goods, lands, or tenements from which said judgment or any part thereof can be made, etc.
The said defendants made answer to said petition, and a 1-ledged that the judgment described therein, rendered in the county court, was a judgment taken and rendered by default of the defendant S. JD. Kilpatrick, and in his absence, and was a judgment against him solely; that no appeal was ever taken from said judgment, nor could be, for that the same is prohibited by law, and that all proceedings had for that purpose, including the giving of the bond, now in suit, were null and void, etc.; also that the attempted appeal was by the district court dismissed upon motion of the plaintiff, for the reason that the judgment was taken and rendered upon default of and in the absence of the ap
A trial was had in the district court without the intervention of a jury, upon the record and agreed statement of facts, and there being a judgment for the defendant, the plaintiff brings the cause to this court on error. The agreed statement of facts, signed by the district judge, constitutes the bill of exceptions. From this statement of facts, I extract the following paragraph:
“June 10, no answer being on file, comes plaintiff and claims default of defendant, and the same is allowed, and by consent of parties this action is set for June 20, at 9 o’clock A.M., for trial.”
The said statement does not show whether the summons in the said action was personally served on the defendant, nor whether he ever applied to the court to set aside the judgment under the provisions of section 1001 of the civil code.
I think under a fair construction of the syllabus as well as the body of the opinion in the case of Clendenning v. Crawford, 7 Neb., 474, a defendant against whom a judgment rendered “ by default and in his absence,” has the right to appeal after he has applied to have the judgment set aside, under the provisions of section 1001 of the civil code, and been denied; and that the principal defendant, to make his defense available, even upon his own theory, must have negatived such facts by allegation and proof. It appears by the statement of facts, as above quoted, that the said action was set down for trial June 20th, at 9 o’clock, by consent of parties. This statement, made in a stipulation of facts, on which a cause is to be heard and decided by a court, in the absence of sworn testimony, must be understood as meaning that the defendant, as well as the plaintiff, was present in court, either in person or by attorney, and gave his consent as therein stated. In the case of Strine v. Kaufman, 12 Neb., 423, this court say in
The case of McConnel v. Swales, 2 Scam., 571, came before the supreme court of Illinois in 1840. It was an action on an appeal bond, taken in a case before a justice of the peace to the circuit court, where the appeal was dismissed, and action brought on the bond against the defendant and his bondsmen. The court in the opinion say: “This court does not entertain a doubt, but that the dismissal of an appeal or oertiorari is equivalent to a regular technical affirmance of the judgment, so as to entitle a party to claim a forfeiture of the bond, and have his action therefor. The bond given in such case is conditioned to pay the debt and costs in case the judgment shall be affirmed on the trial of the appeal. What is the object of this requirement, and what its meaning and intention? Manifestly to secure the opposite party in his debt and costs, in case the judgment shall not be reversed; in case he shall be, in the circuit court, the successful party. By a dismissal of the appeal, either by the court, or by the act •of the appellant himself, the appellee is the successful party. He has not lost what he gained before the magistrate. He is placed in the same situation he occupied. before the appeal was taken; and we see no propriety in attributing to. such a judgment of dismissal less efficacy than to a more formal and technical one of affirmance.”
The above case was followed and approved in the same court by that of Sutherland v. Phelps, 22 Ill., 91.
The statute of the state of Wisconsin provided that a
In the case of Clark v. Miles, 2 Pinney, 432, Clark had recovered a judgment against Miles before a justice of the peace. Miles desiring to appeal, presented a bond with security, but took no oath. The justice, however, allowed the appeal. The circuit court, upon motion of the appellee, dismissed the appeal for the want of the statutory oath. Clark then brought an action on the appeal bond against Miles and his surety. The circuit court gave judgment for the defendant, on the ground that the dismissal of the appeal carried with it and invalidated the appeal bond. The plaintiff took a writ of error to the supreme court, where the'judgment of the circuit court was reversed. In the opinion the majority of the court say: “The appeal was properly dismissed in the first instance, as the affidavit was absolutely required by the statute; but the question now presented is, whether that dismissal rendered the recognizance void. We think not. One of the conditions of the recognizance (of which a form is given in the statute) is that the appellant shall pay the amount of the judgment rendered against him before the justice, including costs of appeal, with interest, in case his appeal shall be dismissed or discontinued.”
“It was not the fault of the appellee that no affidavit was filed, nor can he be made to suffer; for either the neglect of the appellant, or of the justice. It was hot for him to enquire into the reason for the dismissal of the appeal; he was satisfied that it was dismissed. Pie had been subjected to delay and expense because of the voluntary action of his antagonist, and it would be harsh indeed to drive him back to his execution upon the justice’s judgment, and thus deprive him of all indemnity for the delay and costs of the appeal. We regard his right to sue upon the recognizance
The reason of these cases is entirely applicable to the case at bar, and is we think unanswerable.
The judgment of the district court is therefore reversed, and the cause remanded to the district court for further proceedings according to law.
Reversed and remanded.