Dean v. Kinman

15 Neb. 492

• Court: Nebraska Supreme Court
• Decided: January 15, 1884
• Status: Published

Opinion

Maxwell, J.

The plaintiff brought an action against the defendant before a justice of the peace to recover the sum of $199. The defendant appeared specially and objected to the jurisdiction of the court. The objection was overruled, and' the defendant not making a further appearance, judgment was rendered against him for the sum of $199 and costs. The judgment was rendered on the 14th of December, 1882. On the 22d of that month the defendant filed an undertaking for an appeal to the district court, which was duly approved'. The defendant failed to perfect his appeal, and at the next term of the district court the plaintiff filed a transcript of the proceedings before the justice, and moved for an affirmance of the judgment. Tlie motion was overruled and the appeal dismissed. A supplemental transcript of the justice was filed, from which it appears that after the undertaking for the appeal had been filed and approved the defendant appeared before the justice and moved to set aside the defáult; that he thereupon confessed judgment for costs and the default was set aside; that afterwards, as the plaintiff failed to appear and prosecute, the action was dismissed. So that the case is presented here on two records, one showing a judgment in favor of the plaintiff and an appeal therefrom, and the other showing that after the appeal was taken the judgment was set aside and the action dismissed. The question presented is this: After a party has appealed from a judgment against him, can the justice, while the appeal is pending and undetermined, set the judgment aside? We think not. If such a practice was permitted it would create interminable confusion. If a party desires the setting aside of a judgment he must file his motion for that purpose and have it acted upon before filing an undertaking for an appeal. If it is objected that the defendant had not contested the case before the justice and therefore could not appeal, it is a sufficient answer to say that the right to insist upon the objection is a personal privilege that may be waived and will be unless objection is made on that ground. Goodrich v. Omaha, 11 Neb, 204. The court has jurisdiction of the subject matter, and by a general appearance the parties conferred jurisdiction over themselves. The plaintiff in this case by filing the transcript in the district court waived the objection named and conferred jurisdiction on that court. The judgment of the district court is reversed and the cause is remanded with leave to both parties to file pleadings and try the cause on the merits.

Judgment accordingly.

The other judges concur.