Mercer v. James, 6 Neb. 406

Mercer v. James

6 Neb. 406 | Neb. | 1877

Lake, Ch. J.

This was an action in replevin to recover possession of a span of mules, and there are really but two questions presented for our consideration.

The first question relates to the admission of certain testimony bearing upon the question of ownership, wherein, if the court did not err, it will follow that the instruction complained of, although not of the most harmonious phraseology, yet, as probably understood and acted upon by the j ury, was substantially right.

*410It appears that after the plaintiff had introduced his testimony tending to prove ownership in himself, the defendant, to establish his own title, produced the transcripts of two judgments and executions, under which the property had been seized and sold , to his grantor before the plaintiff’s pretended interest was acquired. If this were a valid sale, as to the defendant in execution, then there is no question that the defendant here was the rightful owner and entitled to a verdict in his favor.

These transcripts show that the notes on which the judgments were rendered by the justice were signed by Samuel F. Woods as principal arid by D. C. Button as his surety. It does not appear that any summons was issued in either of the cases, but Woods, the principal, appeared voluntarily in open court and acknowledged his indebtedness to the plaintiff, J. Lock, in the amounts appearing to-be due upon the notes respectively; whereupon judgments were rendered against Woods as principal and Button as surety, for the amounts so confessed and costs.-

It is urged in behalf of the plaintiff in error that these judgments were absolutely void, and consequently that the sales under them conveyed no title whatever to the purchaser. As to the surety, who was neither served nor made voluntary appearance, this is doubtless true, but we cannot accede to the proposition that they were likewise void as to the principal, who had personally appeared, confessed his indebtedness, and, as the transcripts also show, actually requested judgments to be rendered for the amounts so confessed.

It is true, as claimed, that justices of the peace can only exercise jurisdiction within the limits and in the mode prescribed by statute. This proposition is elementary, and no authorities were necessary in its support. But even under this rule we think it clear that in these cases the only error committed by the justice was in *411rendering judgment against the surety. As to the principal, every step taken was fully authorized by the statute, as will be seen by reference to the following sections of the code of civil procedure.

“ Sec. 908. Actions before justices of the peace are commenced by summons, or by the appearance and agreement of the parties without summons. In the former the action is deemed commenced upon delivery of the writ to the constable to be served; and he shall note thereon the time of receiving the same. In the latter case the action shall be deemed commenced at the time of docketing the case.”

By force of this provision, when the plaintiff in those actions and "Woods appeared before the justice of the peace and had the cases docketed, they were duly com-’ menced, and the justice was thereupon as fully authorized to proceed with them to final judgment as .if the defendant had been brought in by the regular service of a summons.

It was contended in argument, however, that it did not affirmatively appear that the plaintiff was actually present at the time and agreeing that the cases should so proceed. But we think .that his assent is abundantly proven by the fact that executions were afterwards sued out, property levied on, and the judgments satisfied by its sale. Besides, if the absence of an express affirmative showing upon this point were fatal to the validity of the judgments, the objection could not be taken in this collateral proceeding, but would be available only to the plaintiff in those suits.

Again, section nine hundred and seventy-one of the code provides that: “Where parties agree to enter without process before a justice any action of which such justice has cognizance, such justice shall enter the same on his docket, and proceed to trial, judgment, and execution, in all respects in the same manner as if sum*412mons had been issued, served, and returned.” All of the steps required by this section, so far at least as was-necessary, were taken. As to the formality of trials, that was rendered wholly unnecessary by reason of the personal acknowledgment of the maker of the notes of his liability thereon as claimed.

The second question relates to the form of the verdict, it being objected that the finding as to the detention and right of property is in the present tense, referring to the time of trial instead of the commencement of the action. Under the circumstances of the case we regard this objection as merely technical. It is true that in replevin the relation of the respective parties to the goods, at the commencement of the action, is the primary inquiry for the jury, the gist of the controversy being the alleged unlawful detention by the defendant. Technically, the verdict ought to be so framed as to speak unequivocally on this point. Here the language is, “ that the defendant, Robert James, does not unlawfully detain,” and that “ the right of property and the right of possession thereof is in the defendant.”

There is nothing in the record, however, nor was it so much as claimed that the rights of the parties respecting the property were not precisely the same on the day of trial as at the commencement of the action. It is quite possible that a case might arise wherein- such a verdict would not answer. Here, however, the case turned on the single question of ownership, and this again on the validity of the two judgments under which the defendant purchased the property at the execution sale. Therefore, holding as we do that the judgments, as to the defendant, who appeared, and whose property was taken to satisfy them, were valid, no harm can possibly result to the plaintiff in consequence of the alleged error, which must have been occasioned by mere oversight, and not from any disregard of his rights. An er*413ror without prejudice' to the party who complains of it is no ground for the reversal of a judgment.

For these reasons the judgment of the district court must be affirmed.

Judgment affirmed.