54 Neb. 476 | Neb. | 1898
Fenner sued Kime in the county court of Box Butte county and recovered a judgment against Mm for $222.75 and costs expended, taxed at $18. Kime appealed and caused a transcript of the proceedings in the county court to be filed in the office of the clerk of the district court within thirty days from the rendition of the judgment. Through some misunderstanding the clerk did not docket the appeal, but instead entered the transcript on the judgment record. Thereupon the plaintiff, proceeding on the assumption that the district court had not acquired jurisdiction of the cause, at the next term filed a transcript of
“O’Neill, Nebraska, 5-26-’90.
“Dear Simonson : Replying to yours of the 18th, would say the motion in question was decided in-your favor, which the minutes should show. * * *
“Yours, M. P. Kinkaid.”
Assuming that this communication referred to the motion of Fenner for judgment on the transcript of the county court, the clerk entered on the journal a judgment similar to the one from which the appeal had been prosecuted. Afterwards, at the suggestion of the court, the defendant filed a petition asking that this judgment be vacated on the ground that'it had been irregularly obtained. At the October term, 1893, to-wit, on October 12, the cause came on to be heard on the petition, and the plaintiff Fenner being in default of an answer, the court found the facts stated in the petition to be true and made an order setting aside the judgment complained of. Subsequently, on November 14, 1893, at his chambers in Chadron, Judge Bartow made an order vacating the order of October 12 and directed that Fenner answer the petition of Kime within thirty days. Instead of answering, Fenner filed a general demurrer, which was overruled at the April, 1894, term of the court. He then moved to strike from the petition an answer setting up a defense and counter-claim to Fenner’s cause of action and for judgment on the pleadings. This motion was sustained. Kime’s petition was dismissed and costs to the amount of $100 taxed against him. To reverse this judgment he prosecutes error.
There is also another reason why the judgment is erroneous. The order of October 12, 1893, vacating the judgment in favor of Fenner has never been set aside. It is still in full force and effect. The order made by Judge Bartow at chambers on November 14, 1893, was a mere nullity. A judge at chambers possesses no jurisdiction to vacate orders or judgments of the district court. For the errors indicated the judgment complained of must be reversed and the cause remanded for further proceedings.
Reversed and remanded.