Raymond Bros. & Co. v. Strine

Lake, Ch. J. The facts of this case bring it clearly within the principle held in Strine v. Kaufman, 12 Neb., 423. The motion for security for costs was an appearance to the action and following the decision in that case, that where there is such appearance by the defendant, he is not entitled, as of right, under sec. 1001 of the code, to have the judgment against him set aside, the judgment of the district court must be reversed, and that of the justice of the peace reinstated and affirmed. It is urged on behalf of the defendant in error, that because the plaintiffs, after the reversal of the justice’s judgment in the district court, took leave to file a petition (which, however, was afterwards vacated by order of the court), they thereby waived the error committed against them, and are 237 estopped from proceeding in this court to question the correctness of the judgment of reversal. Such possibility might have been the effect of taking the order for leave to plead, if it had not been afterwards vacated. This, however, we do not decide. But, whatever the effect would have been had the order remained, we must hold that, being set aside, the plaintiffs had the same right to prosecute error to this court, as if it had not been made. It was not a waiver of the error in the judgment of reversal. Judgment accordingly.