Lewis v. Watrus

7 Neb. 477 | Neb. | 1878

Gantt, Oh. J.

This action was originally commenced in the probate court, upon a promissory note not negotiable. On the seventh of June, 1873, defendant filed an appeal bond, and on the thirtieth of January, 1874, he filed his transcript and appeal in the district court. At the May term (1874) the case was continued, and at the May term (1875) defendant filed his motion to strike the papers from the files, on the ground that no judgment was rendered in the case in the probate court. This motion was overruled and the defendant filed his answer, and afterwards he filed an amended answer. At the June term (1876), upon affidavit of defendant, the cause was continued, and at the June term (1877) a jury was impaneled in the case and the parties proceeded with the trial of the cause; but after each party had introduced all his testimony the defendant then filed another motion to dismiss the appeal for want of jurisdiction, on the ground that there was no judgment to appeal from. The jury was discharged; the appeal was dismissed, and the court rendered judgment, as follows: “It is therefore considered and adjudged that this cause of action be and the same is hereby dismissed, and that the defendant, John Watrus, go' hence without day and have and recover of the plaintiff the costs of this action taxed

We think the court erred in dismissing the appeal, and also in rendering a final judgment on the merits of the case and for costs in favor of the defendant. The code defines “a judgment to be the final determination of the rights of the parties in an action ” — § 428. The judgment rendered by the probate court is very informal, but it is “ a judgment decreed in favor of plaintiff in the sum of, principal, $174.70; interest, 85 cents. Judgment, $175.55,” and costs, $9.30. Though the language is untechnical,- still it seems pretty clearly to be a “ final determination of the rights of the parties to the action.”

Freeman on Judg., § 47, says in respect of a judgment in these inferior courts that “ if it corresponds with the definition of a judgment as established by the code, if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligent language the relief granted, its claim to confidence will not be lessened by want of technical form nor by the absence of language commonly deemed especially appropriate to formal judicial records;” and in § 57 the words “I give judgment ” was held good, and the language, “ whereupon the court orders that plaintiff pay the costs of suit, and that execution issue therefor, in a record showing the trial by a jury and a verdict for the defendant, though not in technical language, was held sufficient to constitute a valid judgment;” and the author quotes from Taylor v. Runyan, 3 Clarke, 474, this language of the court: “ We would not hesitate to enforce a judgment because ‘ decreed ’ or ‘ resolved ’ was used instead of considered.”

In Minkhart v. Hankler, 19 Ill., 47, it is said that “no judgment will be reversed for the use of inappropriate or untechnical words.” Ereeman on Judg., § 55.

In Fish v. Emerson, 44 N. Y., 376, the judgment was in form substantially as the one in the case at bar, and was held sufficient as the entry of a judgment.

Again, if the court had jurisdiction of the case then it erred in discharging the jury and in rendering a final judgment on the merits of the case; and if the court had no jurisdiction of the case then it had no power to render a final judgment, or judgment for costs. Burke v. Jackson, 22 Ohio St., 268. Hence, in any view in which the case may be considered, there is error in the record, and the judgment of the court below must be reversed, the appeal must be reinstated, and the case be proceeded with to trial.

Judgment accordingly.