Oakdale Heat & Light Co. v. Seymour

Oldham, C. This action ivas instituted as a term case in the county court of Antelope county, Nebraska, on the 15th day of [48] February, 1904. * The case was continued in that court and dilatory motions were filed until the 5th day of September, 1904, when the case was continued by agreement to October 13, 1904, and defendant alloAved 20 (lays to answer. Before the expiration of the 20 days defendant, instead of answering, filed two motions, one of Avhich was to require the plaintiffs to make their petition more definite and certain. When the case AAras reached on the 13th of October, the court sustained defendant's motion to require plaintiff's to make the petition more definite and certain. Plaintiffs acquiesced in the ruling on this motion, and filed an amended petition instanter in the absence of the defendant. On the filing of the amended petition plaintiffs called a AA’itness, made proof of the account, and the court rendered judgment in their favor, and adjourned the day’s sitting. At the next term of court defendant filed a motion to set aside the judgment for various reasons. This motion being overruled, defendant, Avithin the time prescribed by statute, filed a bond and a petition in error in the district court for Antelope county, praying to have the judgment of the county court set aside for irregularity in the manner in Avhich it was entered, and for other reasons which need not be considered. On the hearing-in the district court the petition in error was sustained, the judgment of the county court set aside, and the cause set down for trial in the district court. To revieAV this judgment of the district court in setting aside the judgment of the county court, the plaintiffs have appealed to this court. It is contended by the appellants that, as defendant Avas in default of answer on the day that the judgment was rendered, the action of the county court in rendering judgment was regular and not subject to review in error proceedings. If the county court had stricken from the files ,the two motions filed by the defendant, and left the defendant in default as of the day on Avhich it had been ordered to ansAver, there would be much in this contention. But the record shows that the [49] court entertained the motions, overruling one and sustaining the other, and that plaintiffs acquiesced in the ruling of the court and filed an amended petition instanter. When the motion of the defendant Avas sustained and the amended petition filed, defendant was not, at that instant, in default. Section 12, ch. 20, Comp. St. 1905, reads as follows: “If no answer is filed on or before the first day of the term, in any action to be tried during such term, the plaintiff may have the default of the defendant entered, and may proceed to judgment on any succeeding day during the term, upon proving his cause of action.” This section anticipates that a final judgment shall not be entered by the county court on the day of the default of the defendant. It is plain that, if defendant had been present when the amended petition was filed, it would have been entitled to a reasonable time to plead to it, if it had so requested, and that it would have been erroneous to force defendant to an immediate trial without allowing it a chance to plead. Consequently, when it Avas absent the most, we think, the court could have done with propriety would have been to enter a default against the defendant, and, having done so, it should have waited until a succeeding day of the term before entering its final judgment. It is urged by the appellants that the motion to set aside the judgment, filed in the county court, Avas insufficient and did hot allege the ground of irregularity relied upon in the petition in error, and that, consequently, the hearing in the error proceedings should have .been confined to the allegations of error contained, in the motion to set aside the judgment. By section 26, ch. 20, Comp. St. 1905, error proceedings from a probate or county court are governed in the same manner as provided by law for error proceedings from a judgment of a justice of the peace. In error proceedings from a justice of the peace, there is no provision for the filing of a motion for a neAV trial, or to set aside the judgment sought to be reviewed. Consequently, the filing of this motion in the county court was superfluous and of no effect, 1. New Trial: County Court. The cou'nty court in term cases has jurisdiction to grant a new trial under section 602 of the code. 2.\ Judgment: Default. The county court cannot enter judgment by default on the answer day; that is, on the first day of the term at which the cause first stands for trial. But, when both parties have appeared and the cause has been by agreement continued to a day certain, the parties are bound to attend on that day, and if the defendant fails to do so the cause may be tried in his absence. For the reasons stated, Ave think that the trial court did not err in sustaining the petition in error, and Ave recommend that the judgment of the district court be affirmed. Ames and Epperson, CC., concur. By the Court: For the reasons given in the foregoing opinion, the judgment of the distinct court is Affirmed.