Lincoln Brick & Tile Works v. Hall

44 N.W. 45, 27 Neb. 874, 1889 Neb. LEXIS 307

• Court: Nebraska Supreme Court
• Decided: November 20, 1889
• Status: Published

Opinion

Maxwell, J.

This action was commenced by the defendant in error on the 17th day of October, 1888, before a justice of the peace to recover of the plaintiff in error the sum of $59, alleged to be due to said defendant in error for the board of one^Wm. Armstrong, which, as was alleged, the defendant in error agreed to pay. On the 24th day of October a trial of the issues was had before the justice, which resulted in a judgment in favor of the defendant in error and against the plaintiff for the sum of $69.40 damages and $3.95 costs.

Afterwards on the 26th day of October, 1888, the plaintiff filed with said justice an appeal bond, which was duly approved. On the 26th day of November, 1888, the plaintiff filed the transcript in the office of the clerk of the district court of Lancaster county. On the 17th day of January, 1889, the defendant filed in the office of the clerk of the said district court his motion to enter up a judgment in the district court similar to the judgment in the justice’s court, for the reason that the appellant had failed to perfect its appeal, by filing in the district court a transcript of the proceedings of the justice of the peace within the time allowed by statute, to-wit, thirty days after the judgment was rendered. On the 4th day of February, 1889, the plaintiffs filed in the district court their answer and affidavits resisting the motion for judgment. On the 23d day of February, 1889, the case came on for hearing on the motion for judgment, and the answer and affidavits, and the motion was sustained.

The affidavits on behalf of plaintiff in error to excuse the delay in filing the transcript state, in substance, that after the transcript was received from the justice it was laid aside by a young man in the office of the attorney of the plaintiff in error, and when discovered it was too late to file it within thirty days from the date of the judgment. Is the excuse offered sufficient? Sec. 1011 of the Code provides: “If the appellant shall fail to deliver the transcript and other papers, if any, to the clerk, and have his appeal docketed as aforesaid, within thirty days next following the rendition of said judgment, the appellee may, at the first term of the district court after the expiration of thirty days, file a transcript of the proceedings of such justice, and the said cause shall, on motion of said appellee, be docketed; and the court is authorized and required, on his application, either to enter up a judgment in his favor similar to that entered by the justice of the peace and for all the costs that have accrued in the court and award execution thereon, or such court may, with the consent of such appellee, dismiss the appeal at the cost of the appellant, and remand the cause to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken,” etc. The requirement of the statute, that the transcript be filed within thirty days, is imperative. There is no condition that, in case the appellant, or any of his employes, be mistaken as to dates and circumstances, therefore he will be relieved from the consequences of his mistake. The appellant must be diligent and file his transcript within the time limited or the appeal will fail. No doubt where due diligence is shown in demanding a transcript and from any cause the trial court delays the delivery of the same for so long a time that it will be impossible to file it within the thirty days, the court will relieve the appellant, because the fault is with the court (Dobson v. Dobson, 7 Neb., 296), but there is no charge of that kind in the ease under consideration.

The judgment of the district court is right and is affirmed.

Judgment affirmed.

The other Judges concur.