Ettenheimer v. Wallman

Sullivan, C. J. In an action of forcible entry and detainer brought by Ettenheimer against Wallman before a justice of the peace the plaintiff recovered judgment for restitution of the premises described in the complaint. The defendant thereupon filed with the justice, and had approved, an appeal bond conforming to the requirements of section 1030 of the Code of Civil Procedure as amended in 1883. After-wards the case was docketed in the district court as an appeal, and was treated by both parties as having been brought there by a valid proceeding. The question in dispute was again tried and the trial this time resulted in a verdict and judgment in favor of the defendant. The de-' cisión of the district court is erroneous, and must be reversed. There was, at the time the case was tried before the justice of the peace, no law authorizing an appeal in this class of cases. The statute which assumed to confer the right of appeal was not constitutionally enacted, and was therefore void. The jurisdiction of the district court in actions of forcible entry and detention, or forcible detention only, of real property, being derivative and not orig [648] inal, tbe second, trial and judgment, notwithstanding the fact that the parties voluntarily appeared, were unauthorized and void. The case is controlled by Armstrong v. Mayer, 60 Nebr., 423. The judgment is reversed and the action should, in my opinion, be dismissed. Holcomb and Sedgwick, JJ., concurring: The district court had no jurisdiction of the appeal and the judgment of the justice of the peace is not affected thereby, and the judgment of the district court is reversed and the appeal from the judgment of the justice of the peace is dismissed. Reversed and dismissed.