Clendenning v. Crawford & McLaughlin

7 Neb. 474

• Court: Nebraska Supreme Court
• Decided: July 15, 1878
• Status: Published

Opinion

G-antt, Ch. J.

The defendants in error sued the plaintiffs in'a justice’s court on account for professional services, etc. They were served with process, and failed to appear at the return day of the summons; the cause was tried and judgment was given in conformity with the bill of particulars and the proofs. The plaintiffs in error appealed to the district court, and on motion the appeal was dismissed. The only question in the case is, whether an appeal from the judgment of a justice of the peace will lie to the district court in a case where the defendant disregards the process and fails to appear at the return day of the summons.

Section 1006 of the civil code provides, that “ in all cases, not otherwise provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.” But section 1001 specially provides, that “when a judgment shall have been rendered against a 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 the same to be done, of the opemng of such judgment, and of the time and place of trial', at least five days before tbe time, if tbe party reside in the county, and if be is not a resident of tbe county, by leaving a written notice thereof at tbe office of tbe justice ten days before tbe trial.” Hence, where judgment is given in tbe absence of the party sued and served with process, it is “specially provided” that, upon certain conditions, tbe judgment may be set aside and a trial bad in which be can set up all bis defenses. This statutory provision gives tbe party a complete remedy, in such case, in tbe justice’s court, and does not deny him tbe right of an appeal after be shall have made bis defense to the action in that court.

It seems clearly to be tbe legislative intent that actions in justice’s courts must be tried upon tbe merits of both tbe claim of tbe one party and the defense of tbe other, before an appeal shall be taken to tbe district court; and this rule seems to be reasonable and just, for where tbe law establishes tbe court in which a party shall bring bis action, tbe adverse party should not be allowed to disregard tbe process of such court, and then select tbe forum of bis own choice in which tbe cause shall be first tried upon the merits of the case. If such a practice were permitted, it would defeat tbe main object . for which tbe justice’s courts were established, namely, tbe trial and disposal of causes or controversies with tbe least possible expense to tbe parties, where the amount involved does not exceed one hundred dollars. In tbe following cases it has been held that if a party is duly summoned and fails to appear and set up bis defense, an appeal will not lie to tbe district court. Brayton v. County of Delaware, 16 Iowa, 441. Trullenger v. Todd, 5 Oregon, 36. Long v. Sharp, 5 Id., 438. See Garnet v. Rodgers, 52 Mo., 145. Sample v. Gilbert, 46 Ind., 444.

Tbe judgment of tbe court below is affirmed.

Judgment affirmed.