Wise v. Frey, 9 Neb. 217

Wise v. Frey

9 Neb. 217 | Neb. | 1879

Cobb, J.'

There can be no doubt of the power or of the duty of the district court upon sustaining the demurrer to *220the petition, the plaintiff (in the court below) not asking leave to amend, but electing to stand upon his petition to render judgment in favor of the defendant for the return of the property replevied, and if such return could not be had, then for the value of the property replevied on proof of such value and amount of damages. Such appears to be the provision of the act of February 25, 1875. [Laws, 1875, p. 44.] And this court must presume that there was such proof in the district court, there being nothing to the contrary in either of the bills of exceptions, in the case.

It is equally clear that the. court ordinarily retains jurisdiction to perfect or modify any of its judgments in accordance with the facts and the law of the case up to the final adjournment of the term.

Nor was this power taken away or suspended by reason of the pendency in this court of a case in error to reverse the judgment of the district court sustaining the demurrer of the defendant on the 18th of December, 1877, the date of the action of the district court complained of. The plaintiff had one year in which to commence his proceedings in error, and by commencing before the final adjournment of the term he took the risk, if risk it was, of having the said judgment modified and perfected pending his proceedings in error. But the form or scope of the said judgment was in no manner involved in the said case in error, and the judgment of this' court thereon was equally applicable thereto in its modified as in its original form. See Wise v. Frey, 7 Neb., 134.

The power of the district court over its own judgments during the'term at which the judgment is rendered is entirely discretioriary, and not subject to review by this court. Smith v. Pinney, 2 Neb., 139. Huntington & McIntyre v. Finch & Co., 3 Ohio State, 445. Taylor v. Fitch, 12 Id., 169.

*221There being no error in the record, the judgment of the district court must be affirmed.

Judgment affirmed.