Wells v. Turner , 14 Neb. 445 ( 1883 )

Maxwell, J.

This action was commenced before a justice of the peace upon a promissory note. The justice copied the note into his docket as a bill of particulars and issued summons thereon, returnable April 22,1881, at 10 o’clock a.m. The summons was served on the defendants in the justice court (plaintiffs in error). At the time set for the trial none of the parties plaintiff or defendant appeared, but the justice having the note in his possession and no defense being made to the same, he proceeded to render judgment thereon.

In this it is claimed there is error. A justice having in his possession the evidence of indebtedness upon which suit is brought may, after waiting one hour after the time set for the hearing of a cause, proceed with the trial in the absence of the plaintiff. The statute provides that the justice shall wait one hour after the time set for the trial before proceeding therewith. And this should be done in all cases in order that defendants may have an opportunity to make their defense. But if there is no defense to an action, the fact that judgment was rendered before the expiration of the hour will be error without prejudice. If the defendants below had appeared within one hour after the time stated in the summons and asked to make their defense, and the justice had refused to permit them to do so, the judgment would have been erroneous. But as there was no such request and apparently no defense they were not prejudiced.

Some objection was made to the service of the summons.

The return is as follows :

“State of Nebraska, )

“York county, )ss.

“ Eeceived this summons on the 14th day of April, 1881, and I hereby certify that on the 16th day of April, 1881, I served the within writ of summons on the within named L. G. Cummins by leaving a copy thereof at his usual place of residence. W. J. Wells, delivering to him a true and certified copy of same with all endorsements thereon.

“ J. P. Miller, Sheriff.

“By W. W. Shufelt, Deputy.”

The words “ with all the endorsements thereon,” were evidently intended to apply to the copy of each defendant. There is no claim that the copy served upon Cummins was not properly endorsed. But even if this return was defective, it would not avail the plaintiffs in error, because an amended return was afterwards made which fully meets their objections. It-is clear that justice has been done and the judgment is affirmed.

Judgment affirmed.