Filed Date: 11/15/1882
Status: Precedential
Modified Date: 11/15/2024
The new suit and the appealed case were consolidated in the district court. Quite a number of exceptions were saved and points made on the trial. We deem it only necessary to notice one or two of them as set out in the assignment of errors. The first is, that “ the court erred in taking up and hearing plaintiff’s demurrer to defendant’s answer before hearing defendant’s motion for a continuance.” We cannot perceive what possible injury could ordinarily arise to a defendant under such circumstances. Certainly, in this case, defendant has no right to complain, because his application for continuance, as set out, shows a total want of diligence to secure the testimony of the witness. The witness resided in another State, and the only diligence used was simply the suing out of a subpoena.
The third error assigned is« that the court erred in sustaining plaintiff’s demurrer to defendant’s answer. The answer to which the demurrer was sustained was, amongst other things, a plea of failure of consideration. This answer averred that the note sued on was given for a tract of land of 170 acres, sold and purchased at administrator’s sale; that'the estate of Woodruff never had title to more than twenty-five, and one-fourth acres, and that title to 144 3-4 acres had absolutely failed. Fraud and fraudulent representations
As stated above, the two suits were consolidated in the district court; a jury was waived and the case submitted to the court, and judgment was rendered for plaintiff for $196.12 and all costs. This is the judgment appealed from here, and appellee suggests that the appeal is taken for delay.
We think the judgment is erroneous, in so far as it makes the appellants, who were defendants in the lower court, pay all the costs. They certainly should not have been condemned to pay the costs which accrued in the case tried before the justice. Plaintiff himself claims that that judgment was wrong and is a nullity, because the court had no jurisdiction. If so, he undoubtedly was to blame for all the costs which accrued therein; and it was his business to pay the costs and have his illegal judgments set aside in the justice’s court, without forcing the defendants to perfect their appeal, and thereby incur greater costs in their efforts to have the wrong righted. All the costs in the case appealed from the justice’s court should have been adjudged against plaintiff. Because of this error in the judgment rendered, the judgment is reversed and cause remanded for a new trial.