Vaughn v. O'Conner

12 Neb. 478 | Neb. | 1882

Maxwell, J.

A trial was had in this case in the county court of .Douglas county, on the 14th day of Eeb., 1880, and a verdict rendered in favor of the plaintiff. The defendant then gave notice of a motion for a new trial, and three days thereafter filed a motion to that effect. On the 24th of that month he filed an affidavit in support of his motion, and on the 8th day of March of the same year filed a second affidavit in support of the same. The plaintiff then filed three affidavits in opposition to the motion. The cause was then submitted to the court, which granted a new trial. From this order the plaintiff took the case on error to the district court, where the judgment of the county court was affirmed. The cause is brought into this court by petition in error.

Sec. 988 of the code of civil procedure provides that: “ It shall be lawful for the justice before whom a cause has been tried on motion, and being satisfied that the verdict was obtained by fraud, partiality, or undue means, at any time within four days after the entering of judgment to grant a new trial, and he shall set a time for a new trial, of which the opposite party shall have three days notice.

County courts are governed by the same provisions of the statute in granting a new trial as a justice of the peace, Cox v. Tyler, 6 Neb., 203. The question therefore depends upon the construction to be given to the section above quoted. The language is: “It shall be lawful for the justice * * * * * * at any time within four days after the entering of judgment to grant a new trial, ” etc. 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, Id., 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.

The judgment of the district court is reversed and also the judgment of the county court granting a new trial, and the verdict of the jury .and the judgment of the county court thereon are reinstated.

'Judgment Accordingly.