Roggencamp v. Moore

9 Neb. 105 | Neb. | 1879

Lake, J.

Did the district court err in affirming the judgment of the county court? The only alleged errors in the record from the county court were, in substance — First, That the defendant in the action was not legally summoned. Second, That the amount for which judgment would be taken, if the defendant failed to appear, was not indorsed on the summons. Third, That the judgment was not sustained by the evidence, and was contrary to law. Nothing, however, has been claimed here upon the last named point. Inasmuch as the evidence is not before us, it must be presumed to have been ample; and as to the legality of the judgment, that, we suppose, depends upon the strength of the first two objections.

It appears from the bill of particulars, and the affidavit for the order of replevin, that the value of the property sought, and also the damages claimed, exceeded the jurisdiction of a justice of the peace; and it is contended that, for this reason, the summons' should have been made returnable according to section 8, chapter 14, Gen. Stat. 265, instead of section 9, as was done. There is some plausibility in this assumption, for there really does not seem to be any good reason for making a distinction in the return day of the summons between actions in replevin and those for the recovery of a money judgment only. But the legislature have seen fit to make such distinction, and, accordingly, after enacting i-n section 8 -that, in “all civil cases commenced in the county court, wherein the sum claimed exceeds one hundred dollars, the summons shall be £ returnable on the first day of the next term of said court,’” etc., by the very next section declare that, “ in all actions of replevin the summons shall be in like form, and be returnable within the like time, as in similar actions before justices of the peace,” etc. Now, in actions of replevin before justices of the peace the summons is returnable, as in other civil actions brought before them, “not more than twelve days from its date.” Gen. Stat., 667, Sec. 911. The summons in question conformed to this requirement, being made returnable on the fourth day after it was issued, so that there was no irregularity even in the matter complained ofi

The second of the objections is entirely groundless. It is only in actions -for the recovery of money only that the amount for which judgment is claimed must be indorsed on the summons.

But even if the law required for the summons just what is contended for by the plaintiff in error, still there would be no sufficient ground for reversing the judgment. At most, the supposed defects would be only mere irregularities not at all prejudicial to him, nor in any manner impairing the subsequent proceedings, for which a judgment will not be reversed. So long as he elected to disregard the notice to appear and make his defense, if he had any, at the designated time, he is not in an attitude now to complain of what was subsequently regularly done in the case. If he supposed the summons to be defective in these particulars, and desired to test its sufficiency, he should have appeared in that court, and at the very earliest opportunity made his complaint known.

There is no error in this record, and the judgment is affirmed.

Judgment affirmed.

■Cobb, J., having been of counsel, did not sit.