DocketNumber： No. 37576
Citation Numbers： 185 Neb. 677, 178 N.W.2d 275, 1970 Neb. LEXIS 615
Judges： Boslaugh, Colwell, McCown, Newton, Smith, Spencer, White
Filed Date： 6/19/1970
Status： Precedential
Modified Date： 11/12/2024
The district court affirmed a final order of the Omaha municipal court denying defendant’s motion to vacate and set aside a default judgment against him. The defendant relies on the fact that the clerk of the municipal court did not mail a notice of the rendition of the judgment.
On January 24, 1969, plaintiff filed an action against the defendant on an open account in the municipal court of Omaha. Answer day was February 3, 1969. When the case was called at that time, plaintiff’s counsel was advised by the court that the cause had been continued by request of the defendant to February 10, 1969, at 9 a.m. At that time, plaintiff’s counsel again appeared, defendant did not appear, and the default judgment was entered against the defendant on February 10, 1969. On February 11, 1969, a motion of the defendant to make more definite and certain was received and filed by the court. Thereafter proceedings for execution and
The defendant contends that section 25-1301.01, R. R. S. 1943, which applies to procedure in district courts is also applicable here because of the provisions of section 26-1,201, R. R. S. 1943.
Section 25-1301.01, R. R. S. 1943, as to district courts provides: “Within three days after the rendition of any judgment, the clerk of the court shall send a post card by United States mail to each party who has made an appearance in the action, or to his attorney or attorneys of record, advising that a judgment has been rendered and the date of rendition thereof.”
Section 26-1,201, R. R. S. 1943, is a part of the procedure provisions dealing with the municipal court in metropolitan and primary cities. It provides: “All provisions of the district court code of civil procedure, and all other provisions of the statutes of Nebraska not in conflict with the provisions of this article and relating to matters for which no specific provision has been made herein, shall govern and apply to actions in the municipal court.”
Section 26-199, R. R. S'. 1943, is also a part of the code of civil procedure applicable to metropolitan municipal courts. That section provides: “The case shall stand for trial on the day and hour stated in the summons, or on the day and hour to which the same is continued as provided by law. If either party shall fail to appear at the time set for the trial, the case may proceed to judgment at the request of the party appearing, at any time thereafter, prior to an appearance by the
The Legislature has specifically set out the procedure for the entry of default judgments in the municipal court. That procedure also provides that under the circumstances here, such a judgment may be entered “without further notice.” It is only where no specific provision has been made in the municipal court rules of civil procedure that the district court rules of procedure relating to such matters govern and apply to actions in the municipal courts of metropolitan and primary cities. It should also be noted that the purpose of section 25-1301.01, R. R. S. 1943, was to require the mailing of a notice of the rendition of a judgment after a case had been taken under submission by the court. See Simmons v. Lincoln, 176 Neb. 71, 125 N. W. 2d 63.
The specific provisions of section 26-199, R. R. S. 1943, leave no vacuum to be filled by the general provisions of section 26-1,201, R. R. S. 1943, as to default judgments entered at the time set for trial in the municipal court.
The action of the district court was correct and is affirmed.
Affirmed.