78 Neb. 347 | Neb. | 1907
Plaintiff sued the defendant in a justice of the peace court to recover a small amount due on a book account. The defendant pleaded a set-off. Upon trial, defendant recovered a judgment against plaintiff for $75. Plaintiff filed an appeal bond and caused a transcript of the proceedings had before the justice to be filed in the district court on December 30, 1904. On May 29, 1905, plaintiff’s attorney moved for a dismissal of the action, without prejudice to the rights of the plaintiff. Thereupon the court entered the following order: “It is therefore considered by the court that the above entitled action be, and the same is hereby, dismissed without prejudice, and that the defendant recover of and from the plaintiff herein the costs of this suit herein expended taxed at the sum of $19.25, with the complete record waived.”
Plaintiff alleges error in that no notice was served upon him of defendant’s application for judgment. He was not entitled to notice. Defendant’s right to the judgment in such case arose by reason of plaintiff’s default, and by operation of the statute. The court could have rendered such judgment had no application therefor been made.
We find no error in the judgment of the district court, nor in its .order overruling a motion to set the same aside, and we recommend that the judgment of the district court be affirmed.
Affirmed.