64 Neb. 758 | Neb. | 1902
On February 4,1899, Lull and Skinner recovered a judgment before a justice of the peace in and for Douglas county against Byron E. Inglehart, as indorser and guarantor of a promissory note which had been assigned to the plaintiff. From this judgment Inglehart appealed to the district court, where, upon trial, judgment was again rendered against him. To review this judgment he brings the case to this court by proceedings in error.
The petition of the plaintiffs in the district court contains the necessary averments to state a cause of action. The defendant’s answer admitted the indorsement of the note and the delivery thereof to the plaintiffs, but by way of defense alleged, in paragraphs two and three, two defenses, one pleading payment and the other laches. On motion of the plaintiffs the court struck from defendant’s answer paragraphs two and three, upon the sole ground that the issues thus sought to be tendered were not presented in the court below. This ruling of the court presents the only question we are asked to review. The rule is now well settled in this state that where an appeal is taken from a county court or a justice of the peace to the district court, the case is to be tried in the latter court upon the same issnes that were presented in the court from which the appeal was taken with the exception of new matter arising after the trial. Darner v. Daggett, 35 Nebr., 695; Baier v. Humpall, 16 Nebr., 127; O’Leary v. Iskey, 12 Nebr., 136; Fuller v. Schroeder, 20 Nebr., 631; Bishop v. Stevens, 31 Nebr., 786; Robinson v. Buffalo County Nat. Bank, 40 Nebr., 235; Levi v. Fred, 38 Nebr., 564; Cobbey v. Buchanan, 48 Nebr., 391; Halbert v. Rosenbalm, 49 Nebr., 498; Bellamy v. Chambers, 50 Nebr., 146. The transcript of the record from the justice court, fthed in the district court, did not disclose what issues were tendered before the justice. It contains the simple recital of tiie “appearance” of the defendant, followed by a judgment for the plaintiffs in the usual form. The record
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.