Ward v. Western Horse & Cattle Insurance

Nebraska Supreme Court

Ward v. Western Horse & Cattle Insurance

60 N.W. 547, 42 Neb. 374, 1894 Neb. LEXIS 407

CourtNebraska Supreme Court

DecidedOctober 17, 1894

DocketNo. 5439

StatusPublished

This text of 60 N.W. 547 (Ward v. Western Horse & Cattle Insurance) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ward v. Western Horse & Cattle Insurance, 60 N.W. 547, 42 Neb. 374, 1894 Neb. LEXIS 407 (Neb. 1894).

Pincite

Opinion

Ryan, C.

This action was originally commenced before a justice of the peace of Harvard precinct, in Clay county, by the de[375]*375fendant in error against the plaintiffs in error, for the recovery of $60, a balance alleged to have been due on account, with interest thereon. A summons was duly issued, returnable on September 10, 1888. After several continuances, judgment was rendered in favor of defendant in error on December 4 following. To set aside this judgment, error proceedings were prosecuted to the district court, wherein the judgment was vacated because of error made to appear in the record, and the cause was set down for trial in said district court, the plaintiffs being required to file petition in thirty days, and defendant to file answer in thirty days thereafter. The petition was not filed as required by said order, but afterward, on leave thereto granted, it was filed instanter. A trial was had and judgment rendered in favor of the defendant in error for the amount by it claimed. The plaintiffs in error entered a special appearance in the district court and filed objections to the jurisdiction of that court over their persons. It is ¡now insisted that there was no general appearance, and that, therefore, the plaintiffs in error are in a situation such that they can raise this question of jurisdiction. In this view we cannot concur, for the reasons, first, the proceedings which brought the case into the district court were prosecuted by the present plaintiffs in error; second, the plaintiffs in error made an appearance by attorney for the purpose of cross-examining C. E. Burmester, a witness whose testimony was taken by deposition in Omaha; and third, in the record of the final judgment rendered it is recited that “this cause coming on for trial, it is, by consent of both parties in open court, tried to the court without the intervention of a jury.” To enable us to review a judgment rendered as this was on account of alleged errors it is essential that there should have been filed a motion for a new trial in the trial court. This was not done. The judgment of the district court is

Affirmed.

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Ryan, C.

This action was originally commenced before a justice of the peace of Harvard precinct, in Clay county, by the de[375]*375fendant in error against the plaintiffs in error, for the recovery of $60, a balance alleged to have been due on account, with interest thereon. A summons was duly issued, returnable on September 10, 1888. After several continuances, judgment was rendered in favor of defendant in error on December 4 following. To set aside this judgment, error proceedings were prosecuted to the district court, wherein the judgment was vacated because of error made to appear in the record, and the cause was set down for trial in said district court, the plaintiffs being required to file petition in thirty days, and defendant to file answer in thirty days thereafter. The petition was not filed as required by said order, but afterward, on leave thereto granted, it was filed instanter. A trial was had and judgment rendered in favor of the defendant in error for the amount by it claimed. The plaintiffs in error entered a special appearance in the district court and filed objections to the jurisdiction of that court over their persons. It is ¡now insisted that there was no general appearance, and that, therefore, the plaintiffs in error are in a situation such that they can raise this question of jurisdiction. In this view we cannot concur, for the reasons, first, the proceedings which brought the case into the district court were prosecuted by the present plaintiffs in error; second, the plaintiffs in error made an appearance by attorney for the purpose of cross-examining C. E. Burmester, a witness whose testimony was taken by deposition in Omaha; and third, in the record of the final judgment rendered it is recited that “this cause coming on for trial, it is, by consent of both parties in open court, tried to the court without the intervention of a jury.” To enable us to review a judgment rendered as this was on account of alleged errors it is essential that there should have been filed a motion for a new trial in the trial court. This was not done. The judgment of the district court is

Affirmed.

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Bluebook (online)

60 N.W. 547, 42 Neb. 374, 1894 Neb. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-western-horse-cattle-insurance-neb-1894.