38 Neb. 53 | Neb. | 1893
Bernard Ashe sued Charles Cooper and James Langley before a justice of the peace in Colfax county, on a promissory note. The summons was made returnable January 23, 1889, and was duly served. On January 21 Ashe and Cooper appeared before the justice and he, by their consent, continued the case until March 1, 1889. Langley made no appearance whatever in the case, and had no knowledge of this continuance. On March 1, 1889, the justice rendered judgment against Cooper and Langley on said note. April 18, 1889, an execution was issued and placed in the hands of the sheriff, who levied upon a span of horses belonging to Langley, to satisfy the judgment. Langley then brought this suit in the district court against Ashe, the judgment creditor, Bohman, the justice of the peace, and Kuderna, the sheriff, alleging the facts above stated; that said judgment of said justice was null and void as against him, Langley; and that he had a good defense to said action before said justice of the peace. To this petition the defendant in error filed a general demurrer, which was sustained by the court, and the suit dismissed. Langley excepted, and brings the case here on error.
The only question in the case is, does the petition state sufficient facts to constitute a cause of action ? ' The contention of the plaintiff in error is, that as the summons was returnable January 23, 1889, the .order of the justice of the peace, on January 21, 1889, adjourning the cause to a future date was a nullity; that the justice of the peace had no jurisdiction at that time to make any order in the case; and that, therefore, the judgment rendered on March 1, 1889 is void. The summons was in all respects in due form of law; was duly served on Langley, and notified him to appear before the justice of the peace on January 23; and if he failed to do so, that judgment would be rendered against him for $-. He failed to appear then or at any other time.
Affirmed.