Howard Bros. v. Jay , 25 Neb. 279 ( 1888 )

Reese, Ch. J.

This was an action in rejdevin, instituted by defendant in error against plaintiffs in error before a justice of the peace of Frontier county. The transcript from the docket of the justice of the peace shows that the action was commenced on the 5th day of September, 1887. A summons was issued returnable on the 12th day of the same month, and delivered to the constable for service and execution. The return of the constable shows that he levied upon the property in dispute, caused it to be appraised, and after the execution of the proper undertaking by the plaintiff in the action, the property was delivered to her. The service of summons was made by delivering to the agent of plaintiffs in error a certified copy thereof. On the 7th day of September, the defendants in the action, who are plaintiffs in error here, procured the issuance of a number of subpoenas for their wetnesses to appear on the day set for the trial, but upon that day defendant in error filed an application for an adjournment for thirty days, which was granted, and the cause adjourned to the 12th day of October of the same year. On that day the parties appeared, at the time set for the trial, when the plaintiff in the suit asked leave for the constable to amend his return so as to •conform to the facts. But the constable refused to amend, saying that the return was true and correct. The plaintiff In the case asked that defendants be required to “ plead to the issues or stand defaulted.” This motion was sustained.

It appears, inferentially, that the constable had failed to properly certify the copy of the summons which he had ■delivered to the agent of defendants in the action. By permission of the court he placed his certificate upon the •copy in the usual form. Defendants then filed a motion objecting to the jurisdiction of the court over the person of defendants, for the following reasons:

“1st. That these defendants have not been duly and legally served with summons as required by law.

“ 2d. That the defendants have not been served with ■summons in this case.”

This objection was overruled, and the case ordered to proceed to trial, when the defendants withdrew from the •court, and the trial proceeded, which resulted in a finding and verdict in favor of the plaintiff in the suit.

On the 14th of October, the defendants filed the necessary bond for an appeal to the district court, and the cause was taken to said court by the usual proceeding for that purpose. Upon the cause being docketed, the plaintiff, who is defendant in error in this court, filed a motion to ■dismiss the appeal, for the reason, “ That there was default made in the lower court, and no trial was had there upon the merits of the case.”

This motion was sustained by the district court, and the appeal dismissed. The defendants in that action, as plaintiffs, bring the case into this court by proceedings in error.

There are two assignments in the petition in error, which are as follows:

“1st. The court erred in sustaining the motion of defendant to dismiss the appeal in this case.

“ 2d. The court erred in dismissing the plaintiffs* appeal in said action.”

As we have seen, it appears by the record that, after the commencement of the action before the justice of the peace, and before the return day, the plaintiffs in error caused subpcenas to be issued for a number of witnesses to appear and testify on the day set for the trial of the cause. The record made by the justice of the' peace is silent as to whether the defendants appeared on the return day or not, but it is quite probable that they did, as an application for adjournment was made by the plaintiff, and which was sustained, and the trial adjourned. The adjournment was not procured for the purpose of jrerfecting or curing any defect in, or want of service, but for the purpose of procuring the attendance 6f certain witnesses named in the application. We think it sufficiently appears from the docket entry that plaintiffs in error appeared in the justice of the peace court, and that there was no want of jurisdiction over them, even though the summons may have been improperly served. Justice of the peace courts not being courts of regular statutory terms, but being at all times open for the exercise of such judicial functions as may be called into action, it would seem that the appearance of defendants for the purpose of procuring the issuance of the subpoenas referred to, would be the same, legally, as though the action had been taken on the day set for trial. The ’ witnesses are shown to have been present on the' return day when the trial was postponed. This being shown, together with the presumption of the appeai’ance of plaintiffs in error, it would follow that they were entitled to their appeal from the judgment. It is quite clear that plaintiffs in error would not have the right to a new trial, under the provisions of section 1001 of the civil code, upon the ground that the judgment was rendered in their absence. Strine v. Kaufman, 12 Neb., 424. Raymond v. Strine, 14 Id., 236. Cleghorn v. Waterman, 16 Id., 229. This being true, their only remedy was by appeal or proceedings in error. Having adopted the former, they were entitled to have the case tried in the district court upon its merits.

The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with, law.

Reversed and remanded.

The other judges concur.