Van Sant v. Francisco

55 Neb. 650 | Neb. | 1898

Irvine, C.

Francisco- recovered a judgment against tbe plaintiffs in error in tbe county court of Douglas county. Tbe judgment was rendered June 14,1895. An appeal undertaking was filed in due time, but-tbe transcript was not filed in tbe district court until July 18, four days after tbe statutory time bad elapsed. On the application of Francisco tbe appeal was dismissed, and this proceeding ..s brought before us for review.

The evidence on which the district court acted tends to show that plaintiffs ordered the preparation oí a transcript in due season and that it was prepared in ample time to have permitted the perfecting of the appeal. It seems, however, that a usage exists in the county court of Douglas county whereby a book is kept in which attorneys enter applications for transcripts and similar orders. It is also the usage to make transcripts as so ordered, and, with persons of known standing, to deliver them by mail or messenger as may be directed. The attorney for plaintiffs in error sent a clerk to the county court and the clerk there entered, according to instructions, in the order book the title of the case, its docket number, and the words: “Transcript. Send to F. T. Ransom,” he being the attorney. By some mistake the trahs-script was placed in a drawer after its preparation and was not sent to the attorney, and he, relying on receiving it as directed, neglectéd to send for it until too late to file it within the proper time.

In several cases it has been held that if the appellant do all of him required and is not negligent, he cannot be deprived of his appeal by the failure of the justice or county .judge to perform his duty. These cases are all where the officer has failed to perform some duty required of him in his official capacity, as to prepare the transcript, to make up his record, etc. On the other hand, it has been held that where the officer undertook to go beyond his duty and to perform some service not required of him by laAv, he Avas then acting as the agent of the appellant, and his failure to perform such extra-official acts would not excuse the appellant. (Gifford v. Republican V. & K. R. Co., 20 Neb. 538; Union P. R. Co. v. Marston, 22 Neb. 721.) These were cases where the officer undertook to file the transcript in the district court, but they are like the case before us in principle. Unless it Avas the official duty of the county judge to send the transcript to appellant’s attorney, his failure to do so would not excuse the default. Appeals in civil cases from the county court to the district court are governed by the same rules as appeals from a justice of tbe peace. (Compiled Statutes, cb. 20, sec. 26.) Code of Civil Procedure, section 1008, makes it tbe duty of a justice of tbe peace to make out a certified transcript and “on demand deliver tbe same to tbe appellant or bis agent.” Tbe word “deliver” is not there used in tbe sense of sending it by mail or messenger. Plainly it contemplates a demand at tbe office of tbe justice and a delivery there to tbe appellant or bis agent. If appellants or their agent bad called at tbe county court for tbe transcript it would have been delivered to them. Not having done so tbe default was their own. Tbe usage relied on may be one operating for tbe convenience of litigants, but it does not enlarge tbe duties of tbe county judge or become a part of-the law.

AFFIRMED.