17 Neb. 69 | Neb. | 1885
This is a proceeding in error to the district court of Antelope county, by which it is sought to reverse the decision
The time for holding the next term of court was after-wards fixed by the then judge for a day certain in the month of March, 1883. On the eighth of February, 1883, the same judge made an order, which was entered of record, dispensing with a jury for said term of court. On the seventh day of March, the judicial district having been divided and another judge having been appointed—the new district containing Antelope county—an order was made adjourning the term until the 11th day of the following April. Of all these orders the clerk gave the promised notice. On the twenty-first day of March the judge made an order requiring a jury to be drawn for the trial of causes at said term, but of this order no notice was given the plaintiff (defendant in error) by the clerk. The petition further
The first question presented is one of practice. Proceedings of this kind must be brought under the provisions of sections 602-3 of the civil code, and if the grounds are those mentioned in section 603 a petition must be filed and a summons must issue unless waived by the opposite party. “If errors of fact are alleged, an answer may be filed as in other cases.”' Maxwell’s Pleading and Practice (1883), 730. The court must then try and decide upon the grounds to vacate the judgment, and if sufficient is shown the validity of the defense or cause of action must be next enquired into. Sec. 605, civil code. If both are found in favor of the petitioner the judgment must be vacated. These formalities were not observed in the hearing below, and plaintiff in error insists the proceedings were erroneous. If not erroneous they were clearly irregular, but we fail to see how plaintiff in error can insist upon the error since he failed to controvert the allegations of the petition and presented no issue to be tried. He contends that this was unnecessary, and cites section 318 of the civil code in support of his position, which provides that, “ The facts stated in the petition (mentioned in the section) shall be considered as denied without answer.” But we are at á loss to
The next question presented is, whether or not the facts stated in the petition are sufficient to entitle the defendant in error to the relief prayed for. The provisions of the third clause of section 602 are not available in this action for the reason that this clause is not referred to nor included in section 603, which gives the remedy of which defendant in error seeks to avail himself. But if such were not the case, we are satisfied that the neglect or mistake of the clerk referred to contemplates only the official acts of the clerk, and not what he may agree or promise to do as the agent or for the accommodation of parties who may have causes pending in court. The defendant in error must rely upon the seventh clause of the section referred to, which provides that a judgment may be vacated “For unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
From the petition we find that the clerk was, to the extent stated, the agent of defendant in error, and upon him defendant relied. That he at all times,' as requested, notified defendant of the orders of the judge until the last order was made. That at that time, and after, the clerk “ was indisposed, and was by reason of ill health unable to attend to his ordinary duties, and so neglected to notify” defendant in error or his attorneys of the making of said order, which otherwise he would have done.
The sickness of a party, or his family or his attorney, or of a material witness (when shown upon an unsuccessful
Judgment accordingly.