40 Neb. 400 | Neb. | 1894
This action was begun before a justice of the peace of Dixon county, among whose docket entries in relation thereto is the following: “On the 25th day of April, 1891, the plaintiffs filed their bill of particulars, claiming from the defendant the sum of $21 for commission and abstract on sale of lots 4 and 5, block 22, city of Ponca.” Upon a trial had to a jury there was a verdict and judgment for defendant, from which judgment plaintiffs appealed to the district court of Dixon county, wherein a formal petition was filed containing two causes of action. The first count of the petition was for a commission of five per cent on the sale of the above described lots, for $350; the second was for $3.50, the value of an abstract of title furnished by plaintiffs to defendant. There was an answer, in which was an admission that plaintiffs had undertaken the sale of lots as alleged in the petition, but this was coupled with a denial of performance. There was a demurrer to the second count, for the reason that it did not state facts sufficient to constitute a cause of action. The record of date February 3, 1892, contains this recitation : “ Comes now the plaintiffs and confess the demurrer filed herein as to second cause of action set forth in plaintiffs’ petition.” On February 16, following, there was filed a motion to dismiss plaintiffs’ appeal, for the reason that “ plaintiffs claim less than twenty dollars,” and the cause had been tried to a jury in the court below, as appeared from the transcript. This motion was sustained. Exception was taken, and there is presented in this court solely the question of the correctness of this ruling.
Section 1017 of the Code of Civil Procedure provides that appeals “shall not be allowed * * * in jury trials where neither party claims in his bill of particulars a sum exceeding twenty dollars.” In Finch v. Hartpence, 29 Neb., 368, it was held that the rights of the parties, so
Reversed.
