| Neb. | Jul 15, 1885
The only question presented in this case is, whether the petition filed in the county court states a cause of action. It is as follows:
“ Abraham Frank,
August Frank, and Joseph Frank, as A. Frank & Sons,
. Plaintiffs,
vs.
H. H. Spellman,
Henry Spellman, as H. H. Spellman & Co., and J. W. Schmidt,
Defendants.
“ The plaintiffs herein complain of the defendants, and for cause of action in this behalf say that said defendants are indebted to them to the amount of $480.00 and interest, for one promissory note as follows, to-wit:
$480.00. July 30, 1884. To A. Frank & Sons. Ten per cent interest from date.
*112 “Protested Dec. 2, 1884, Firth, Neb., by C. M. Witt-struck. Fees, $2.60.” A true copy of note and protest is hereto attached, as exhibit ‘A,’ and made a part hereof, and that the same is now due and remaining unpaid; wherefore plaintiffs pray for judgment for the sum of $480.00, with interest from the 30th day of July, 1884, at the rate of ten per cent per annum, and protest fees, $2.60, with costs of this action, and such other and further relief as may be due in the premises.
“ Exhibit ‘ A.’
“$480.00. Firth, Neb. July 30, 1884.
Four months after date, for value received, we promise to pay to the order of A. N. Frank & Sons, four hundred and eighty dollars, with interest at the rate of ten per cent per annum from date until paid. Negotiable and payable at the Firth Bank, Firth, Neb.
“ H. H. Spellman & Co.,
“ J. W. Schmidt.”
The certificate of prptest is also attached as part of exhibit “A,” but as it cannot enter into the question in this case it is not necessary .to set it out here.
As the amount claimed by the petition is not within the jurisdiction of the county judge when exercising the ordinary powers and jurisdiction of a justice of the peace, but is within the jurisdiction of the county court, and the case is what is known as a term case in that court, the rules of procedure and practice as applicable to the district court must be applied to the pleading under consideration. Compiled Statutes, §§ 10 and 11, Ch. 20. This being true, the decision in Gage v. Roberts, 12 Neb., 276" court="Neb." date_filed="1882-01-15" href="https://app.midpage.ai/document/gage-v-roberts-6643417?utm_source=webapp" opinion_id="6643417">12 Neb., 276, seems to be in point and decisive of the case. As in the case above cited, so in this case, there is no allegation that plaintiffs in error executed the note in question, nor that there is due defendants in error from plaintiffs in error the sum for which judgment is demanded. It may also be noted that
It is clear that the petition does not state a cause of action.
Upon the cause being called for argument in this court, defendants in error asked leave to interline in the petition after the words, “that the sanie is now due and remaining unpaid,” the words “on said promissory note from said makers, H. H. Spellman, Henry Spellman, and J. W. Schmidt, to these plaintiffs, the sum of $480.00, with interest from July 30th, 1884, at ten per'cent, no part of which has been paid,” for the purpose of correcting the transcript to correspond with the amendment ordered by county court. It appears that at the trial in the county court, and upon the application of defendants in error, they were permitted so to amend the petition by interlineation, but the amendment was not in fact made. At the hearing in the district court, upon error, the amendment not having been made below, defendants in error moved the court for leave to make the amendment there, which was refused. We are not asked to review the action of the district court, but a new motion is made in this court.
As the jurisdiction of this court is appellate only, in such cases, there is no warrant for granting the motion, and it is therefore overruled.
The judgment of the district court is reversed, and the cause is remanded with directions' to the district court to reverse the judgment of the county court, and for further proceedings according to law.
Eeversed and remanded.