4 Neb. 186 | Neb. | 1875
In the assignment of errors, in this case, but a single question is*presented for our consideration, and that is, whether the judgment, which was by default, was entered before it could legally be done. It appears from the record, that on the eighteenth day of December, 1874, the defendant in error, who was plaintiff’ in the court below, recovered a judgment against the plaintiff in error, in the probate court, from which judgment, on the eighteenth of the same month, they took an appeal to the district court.
The next regular term of the district court, for said county, succeeding the taking of the appeal, was fixed for the fifteenth day of March, and the appellants had until the second day of that term to perfect their appeal by filing a transcript, and having the case docketed in the appellate court. The appellants, however, did not take the full statutory time to perfect their appeal, but actually filed the transcript on the sixth day of March, some ten days before they were required to do so.
By the rule of said district court, regulating the making up of issues in cases entered therein by appeal, the petition should be filed on or before the third Monday, after the time fixed for filing the transcript, and the answer on or hefoi’e the second Monday thereafter. By this regulation, the rule day for filing the petition, in this case, was the sixth of April, and that for the answer, the twentieth of the same month, and the defendants would not be in default until after the last mentioned date, nor could any judgment be legally entered against them before that time. But the transcript shows that the default was actually taken on the twenty-second day of
In their brief, the counsel for plaintiffs in error call attention to the fact that the judgment is for considerably more than is called for by the terms of the note upon which the action is brought. It is suggested, and is no doubt true, that this excess is made up of a sum allowed as attorney’s fee, which is provided for in this note. But in the finding of the court, no allusion is made to this subject, nor is any allowance made in terms therefor. The whole amount of the judgment is, ostensibly, found to be due, by the terms of the note, without reference to an attorney’s fee. In cases like this, the court is authorized, in its discretion, to allow such fee, not exceeding ten per cent, on the amount of the recovery, ■but if such an allowance is made, the record should show the fact, and it should be kept entirely distinct from the judgment proper. It is considered in the nature of costs, and should be treated as such. This judgment is objectionable in this particular, but inasmuch as the point is not made in the assignment of errors it furnishes no ground for the reversal of the judgment.
For the reason, therefore, that the judgment was rendered on a default taken before the rule day for filing the answer had elapsed, the judgment of the district court is reversed, the default set aside, and cause remanded for further proceedings.
Eeversed and remanded.
