Cleveland Co-operative Stove Co. v. Grimes

9 Neb. 123

• Court: Nebraska Supreme Court
• Decided: July 15, 1879
• Status: Published

Opinion

Lake, J.

By the judgment here complained of, a judgment of the county court, in an action wherein the present plaintiff in error was plaintiff and the defendant in error was defendant, was reversed, and the original case retained for trial in the district court. It appears that, as the,statute requires, there was indorsed on the back of the summons an amount for which judgment would be taken “ if the defendant failed to appear,” The amount thus stated was $94.37. The defendant made no appearance, and judgment was thereupon rendered against him for $194.37, or one hundred dollars more than the indorsement.

In all civil actions for the recovery of money only, whether commenced in the district, county, or justice courts, it is required that there be indorsed on the summons the amount for which judgment will be taken if the defendant fail to appear. And it is expressly provided that “ if the defendant fail to appear judgment shall not be rendered for a larger amount and costs.” Code of civil procedure, secs. 64, 910. Gen. Stat., 533, 666.

The provision here quoted is mandatory, and in case of the non-appearance of a defendant thus summoned, no judgment in excess of the amount indorsed on the writ can be lawfully rendered against him. A defendant has the right to rely upon this indorsement as fixing a limit beyond which the court cannot go in rendering judgment, in case he chooses to make no appearance in the action; and it is error to exceed it. Watson v. McCartney, 1 Neb., 131. Crowell v. Galloway, 3 Neb., 215. The judgment of reversal by the district court was clearly right, and must be affirmed.

Judgment aeeirmed.