19 Neb. 588 | Neb. | 1886
On the 3d day of December, 1883, plaintiff instituted a suit in the county court, claiming judgment for $65.70 and interest from March 1st, 1883. On the same day defendant appeared, waived issuance of summons, entered a general appearance, and obtained leave to answer in four days, and by agreement the trial was adjourned until January 7, 1884. The defendant failed to appear at the time fixed for trial, and judgment was rendered in favor of plaintiff. On the same day defendant' filed a motion to open and set -aside the judgment and confessed judgment for costs. The motion was sustained, the judgment set aside, and the time for trial fixed for one o’clock, P.M. of January 14. On that day defendant filed affidavit for continuance for service of notice, and the cause was continued until February 4th, when defendant appeared and the cause was continued until April 7. On the 7th day of April defendant appeared, ■ and there was a finding and judgment in his favor for $48 ■ and costs. Plaintiff removed the cause to the district court, -alleging error in all the proceedings after the entry of the
The question here presented is simply one of jurisdiction. If the county court had authority to set aside the judgment of January 7, and grant a new trial, but his proceedings were erroneous and irregular, the action of the district court is correct, as it is in accordance with the requirements of section 601 of the civil code. But if the county court exhausted its jurisdiction to render a judgment on the rendition of its first judgment, and its proceedings thereafter were void, the proceedings should have been set aside and the original judgment be allowed to stand. The authority of a justice of the peace, or county judge within that jurisdiction, to set aside a judgment rendered in the absence of a defendant is found in section 1001 of the civil code. This section is as follows:
' “ When judgment shall have been rendered against defendant in his absence, the same may be set aside upon the following conditions: First. That his motion be made within ten days after such judgment was entered. Second. That he pay or confess judgment for the costs awarded against him. Third. That he notify in writing the opposite party, his agent or attorney, or cause it to be done, of the opening of such judgment and of the time and place of trial at least five days before the time, if the party reside in the county, and if he be not a resident of the county by leaving a written notice thereof at the office of the justice ten days before the trial.”
By an examination of this section it will be seen that the order setting aside a judgment can be made only on three conditions. These are, the making of the motion
It is claimed by defendant in error that the first judgment was erroneous, for the reason that it was rendered at the time set for trial, without waiting one hour, as required by law, before its rendition, and in this connection it is urged that as the record does not show to the contrary we must presume the judgment was set aside within the hour after the time set for trial, as it affirmatively appears that the action of the court in setting it aside was had on the same day on which the judgment was rendered. Neither-one of these positions can be maintained, taking the abstract of the record as our guide. It is true that the effort to open the judgment was made on the same day on which
It is further contended by defendant in error that this cause should be dismissed, for the reason that the order complained of is not a judgment or final order subject to review, as the case is still pending in the district court upon its merits. That question was before this- court in Banks v. Uhl, 5 Neb., 240, where it’was held otherwise, and to which we adhere.
The judgment of the district court is reversed, and all the proceedings of the county court after the rendition of the judgment of January 7, 1884, set aside, and the judgment of that date in favor of plaintiff in error is reinstated.
JüDGMENT ACCORDINGLY.