Kime v. Fenner , 54 Neb. 476 ( 1898 )

Sullivan, J.

Fenner sued Kime in the county court of Box Butte county and recovered a judgment against Mm for $222.75 and costs expended, taxed at $18. Kime appealed and caused a transcript of the proceedings in the county court to be filed in the office of the clerk of the district court within thirty days from the rendition of the judgment. Through some misunderstanding the clerk did not docket the appeal, but instead entered the transcript on the judgment record. Thereupon the plaintiff, proceeding on the assumption that the district court had not acquired jurisdiction of the cause, at the next term filed a transcript of the proceedings and moved for judgment thereon pursuant to the provisions of section 1011 of the Code of Civil Procedure. The trial docket does not show that any action was taken on the motion during the term, and the' only evidence that any action was in fact taken is that contained in a letter of the presiding judge written after the adjournment of the term to the attorney for the plaintiff. This letter was filed with the clerk and is in part as follows:

“O’Neill, Nebraska, 5-26-’90.

“Dear Simonson : Replying to yours of the 18th, would say the motion in question was decided in-your favor, which the minutes should show. * * *

“Yours, M. P. Kinkaid.”

Assuming that this communication referred to the motion of Fenner for judgment on the transcript of the county court, the clerk entered on the journal a judgment similar to the one from which the appeal had been prosecuted. Afterwards, at the suggestion of the court, the defendant filed a petition asking that this judgment be vacated on the ground that'it had been irregularly obtained. At the October term, 1893, to-wit, on October 12, the cause came on to be heard on the petition, and the plaintiff Fenner being in default of an answer, the court found the facts stated in the petition to be true and made an order setting aside the judgment complained of. Subsequently, on November 14, 1893, at his chambers in Chadron, Judge Bartow made an order vacating the order of October 12 and directed that Fenner answer the petition of Kime within thirty days. Instead of answering, Fenner filed a general demurrer, which was overruled at the April, 1894, term of the court. He then moved to strike from the petition an answer setting up a defense and counter-claim to Fenner’s cause of action and for judgment on the pleadings. This motion was sustained. Kime’s petition was dismissed and costs to the amount of $100 taxed against him. To reverse this judgment he prosecutes error.

The judgment is erroneous and must be reversed. The answer attached to Kime’s petition states a defense to the original cause of action, but it seems to have been stricken out on the theory that it presented different issues from those on which the case was originally tried. The answer attached to the petition for a vacation of the judgment contained a general denial and a counter-claim. It is asserted that the answer in the county court was only a general denial. Conceding this to be true, the motion of Fenner should, nevertheless, have been overruled. If the answer presented any defense, partial or complete, on which Kime could rely on a trial in the district court, it was sufficient. The court held that defendant’s petition, with the answer attached thereto, did state facts sufficient to entitle him to have the judgment vacated. It then struck out the answer and condemned the pleading as insufficient. This method of procedure was irregular and unwarranted. The court could not emasculate the petition and then dismiss the proceeding because the petition in its emasculated form did not state a cause of action.

There is also another reason why the judgment is erroneous. The order of October 12, 1893, vacating the judgment in favor of Fenner has never been set aside. It is still in full force and effect. The order made by Judge Bartow at chambers on November 14, 1893, was a mere nullity. A judge at chambers possesses no jurisdiction to vacate orders or judgments of the district court. For the errors indicated the judgment complained of must be reversed and the cause remanded for further proceedings.

Reversed and remanded.