13 Neb. 33 | Neb. | 1882
The only error committed by the county court was in including the costs of the protest in the judgment. In transferring the note to the plaintiffs the indorser expressly waived demand, notice of non-payment, and protest. Having' done this, the protest was unnecessary to 'fix his liability, and he could not properly be subjected to the expense of making it. It is only where a protest is essential to fix an indorser’s liability that he can be subjected to such expense.
It is also claimed, and was in the district court, that the summons was defective, in not sufficiently describing the plaintiff’s cause of action. There was nothing in this point that called for a reversal of the judgment. The summons complied substantially with the requirement of the statute in this particular. In the language of the statute, sec. 910, Comp. Stat., 633, the summons “must describe the plaintiff’s cause of action in such general terms as to apprise the defendant of the nature of the claim against him.” This summons described the cause of action as being a demand “for $75, with ten per cent interest from February 19th, 1880, and ten per cent of amount as attorney fee, upon a certain promissory note.” Under the ruling of this court this description was certainly sufficient. McPherson v. Bank, 12 Neb., 202. It showed that the demand was for money only,' and upon a promissory note to which the defendant must necessarily be a party. It showed it to be in the nature of assumpsit, and not of tort. The fact that it did not particularize the defendant Hinman
The objection to the bill of particulars is without any merit whatever. The cause of action is set forth with all the particularity of a petition in the district court. Besides, the note, itself was attached thereto, thus showing fully and clearly the ground of the claim against the defendant.
For the reasons thus stated the judgment of the district court must be reversed, and the cause remanded to that court, wifcli direction to enter a judgment in conformity to this opinion.
Reversed and remanded.