Cook v. Hester

Reese, J. This action was instituted before a justice of the peace in Adams county. On the day fixed for trial the parties appeared, defendant in error in person, plaintiff in error in person, and by his attorney. A trial was had to the court which found in favor of defendant in error- and rendered judgment thereon. The recital of the justice’s docket is that “a trial was had to the court, a jury being waived by both parties.” Plaintiff and defendant, with their several witnesses, were sworn and the cause submitted upon its merits without any objection being made to the form' or substance of the bill of particulars. After judgment the cause was removed to the district court on error by plaintiff in error — who was defendant below — and upon an affirmance of the judgment of the justice the cause is brought to this court by like proceedings. [370] The only contention of plaintiff in error is that the bill of particulars filed before the justice of the peace did not state facts sufficient.to constitute a cause of action. The following is a copy of it: “State of Nebraska, Adams Comity, Bill of particulars before John F. Battenger, a justice of ■ the peace of Denver Township, Adams county. Melville C. Hester, plaintiff, vs., Henry Cook, defendant. The plaintiff in the above-entitled action says the said defendant was and is indebted to the plaintiff in the sum of eighty-nine dollars and sixty cents for seventeen stock hogs weighing 2,240 pounds gross on the 20th day of December, 1884, with interest thereon at seven per centum from said day, for which sum and interest, with his costs herein, plaintiff asks judgment. Melville C. Hester.” Section 952 of the civil code provides that “The bill of particulars must state in a plain and direct manner the facts constituting the cause of action,” etc. In Freeman v. Burks, 16 Neb., 328, and Wells v. Turner, 14 Id., 445, it. was held that the filing of a promissory note with the justice before whom an action was commenced was a sufficient compliance with the foregoing section, and in Crossley v. Steele, 13 Id., 219, it was held that a bill in the form of an account, with a statement that the plaintiff charged the defendant with damage to crops as stated in the account was sufficient. As stated in the latter case, all matters relating to the form of proceeding in justice courts will be construed with great liberality. In the case at bar the cause was tried upon its merits. There is no doubt but that the bill of particulars fully ap [371] prised plaintiff in error of the nature- of the claim against him. No objection was made until after judgment. In such case there would have to be a clear and palpable failure to comply with the law, resulting in prejudice to the party complaining, before a reviewing court would interfere. In this case there is a substantial compliance with the section above quoted, and there is no prejudice resulting from the defect of form. The judgment of the district court is affirmed. Judgment affirmed. The other judges concur.