38 Neb. 355 | Neb. | 1893
Relator and plaintiff in error brought his action in the court below for a mandamus to require the respondent, a
The record shows that the above mentioned case of Jones v. Galligher and Galligher was tried before the relator and a jury, and on the 14th day of September, 1891, the jury returned a verdict for the defendants. Thereupon, on said day, the justice rendered judgment upon the verdict, and that plaintiff pay the costs of the action. On the 17th day of the same month said plaintiff Jones filed a motion with the justice to set aside the verdict and judgment and for a new trial of the case on the ground, among others, that the verdict was rendered by reason of the prejudice of the jury against the plaintiff. Hearing on the motion was set for September 19th, and notice was duly served upon the defendants, on which date counsel for the respective parties appeared before the justice, and by consent the hearing was continued until September 26th. On said last mentioned date the motion was submitted to the justice, who took the same under advisement until September 29th, upon which date the motion was sustained, the verdict and judgment were set aside, and the cause set for •trial on October 5, 1891. Prior to the last named date this application for a mandamus was made to the district •court.
The contention of the plaintiff in error is that the respondent had no power or authority to vacate the judgement in question and grant a new trial • therefore his action in the premises is a nullity. Section 983 of the Civil Code •eonférs jurisdiction upon justice courts to grant a new trial • in cases where it is shown “that the verdict was obtained by
But it is said the respondent had no authority to vacate the judgment, since the order granting a new trial was made more than four days after the return of the verdict and the entry of judgment thereon. Vaughn v. O’Conner, 12 Neb., 478, was tried in the county court, and the plaintiff obtained a verdict. Defendant immediately gave notice of a motion for a new trial, and within three days a motion to that effect was filed, under the provisions of section 983 of the Code of Civil Procedure, which motion was granted on the 8th day of March. This court, after quoting the above section of the statute, say: “The new trial is to be granted within four days, if at all. The authority of a justice of the peace or county judge to grant a new-trial is derived wholly from the statute, and it must be exercised in the manner and within the time limited therein. (Cox v. Tyler, 6 Neb., 297; Fox v. Meacham, 6 Neb., 530.) The county court had no authority, therefore, on the 8th day of March, to set aside a verdict rendered on the 14th day of February.” In the light'of that decision it must be conceded that the respondent in this case erred in granting a new trial, and, in a proper proceeding brought for that purpose, his ruling would have to be overruled. It is, however, clear that relator has mistaken his remedy. The appropriate and proper remedy is the ordinary one of a petition in error to the district court. (State v. Powell, 10 Neb., 48.)
The case cited was an application for a mandamus to compel a justice of the peace to reinstate a judgment, where,
The judgment of the district court is right and is
Affirmed.