Miller v. Munce

Morrissey, C. J. Appellee brought this action in the county court of Scott’s Bluff county against William Munce to recover a balance due for merchandise sold and delivered to Munce, and summoned as garnishee the Scottsbluff Sugar Company. The sugar company admitted having received a shipment of beets from the defendant, and that it had to his credit $502. This money was paid into the county court. H. H. Vandeventer filed a petition in intervention, claiming that he was the owner of the land on which these beets were raised; that he leased the land to the defendant Munce for a crop rental, the intervener to receive three-fourths of all the crops raised and Munce one-fourth; that the debt owing by the sugar company is the° proceeds of the beets so raised on the intervener’s land; and alleged that the defendant Munce had received more than his share [714] of the crop; and asked that judgment be entered in Ms favor for the entire amount in the hands of the sugar company. Defendant Munce made no appearance. Plaintiff demurred to the petition of intervention. The county court sustained the demurrer, dismissed the petition, and entered judgment by default against the defendant Munce. The intervener filed an undertaking conditioned for the payment of the judgment and costs if judgment should be entered against him, and appealed the cause to the district court. Plaintiff’s demurrer to the petition of intervention was overruled by the district court. Subsequently plaintiff filed a motion to dismiss the appeal of intervener, alleging that the district court could acquire no jurisdiction of the subject matter on appeal; that it had no jurisdiction of the subject matter sought to be subjected to the claims of the intervener; that the intervener had filed no petition in error in the district court, and had filed no motion for new trial in the county court. The court entered an order sustaining the motion, and directing that the appeal be “quashed, for the reason that this court can acquire no jurisdiction of this cause by appeal, and for the reason that intervener has filed no petition in error in this cause.” The intervener took an exception, and has brought the cause here for review. Section 4809, Ann. St. 1911, in force at the time, provided: “In civil actions brought under the provisions of this chapter either party may appeal from the judgment of the probate court, or prosecute a petition in error, in the same manner as provided by law in cases tried and determined by justices of the peace.” This is so plain that it cannot be questioned that the statute provides for appeals from the county to the district court. Perhaps the intervener might have prosecuted error proceedings, but by appeal he removed the whole cause to the district court, as the statute gave him the right to do. It is insisted by appellee that the district court was without jurisdiction to hear the cause on appeal because no motion for new trial was made in the county court. That question was decided adversely to the contention of [715] appellee in O’Donohue v. Hendrix, 13 Neb. 255, where the court said: “A motion for a new trial is necessary only in those cases where a trial has been had. If the court has merely construed the pleadings, or some of them, as in sustaining or overruling a demurrer to a petition, answer or reply, no motion for a new trial is necessary.” It is also contended by appellee that intervener had no remedy except to proceed under section 8441, Rev. St. 1913; but that question was settled in Farrington v. Fleming Commission Co., 94 Neb. 108, where the court said: “When a garnishee answers that he has money in his hands belonging to the judgment debtor, it is proper to allow one who claims the money, and is not a party to the proceedings, to appear and contest the right of the plaintiff to apply the money on his claim.” The correctness of the ruling of the county court is not before us. The district court has already overruled the demurrer, and no appeal has been taken from that order. It therefore follows that the only question before the court is the order made quashing intervener’s appeal and dismissing the petition. This order is reversed and the cause remanded for further proceedings. Reversed. Ham:er, J., not sitting.