Grundhauser Threshing Machine Co. v. Thress

Grace, J. An appeal from the judgment of the district court of Stark county, Honorable W. C. Crawford, Judge. •The complaint states the cause of action upon a promissory note for $153 and interest. The defendant, through his attorneys Miller and Thress, appeared specially for the purpose of objecting to the jurisdiction of the court, for the reason that it is alleged in said motion that no service had been made on the defendant as to the time and place of holding the trial upon change of venue. The facts in the case are as follows: The action was commenced in justice court before A. P. Polsom, a justice of the peace in and for Stark county. The summons was duly issued and served, and due return made thereon on the 12th day of November, 1913, at which time the defendant duly filed an affidavit for change of venue, and the motion for change of venue was granted from A. P. Polsom, justice of the peace, to Walter Sterland, city justice of the peace, of the city ,of Dickinson. Justice of the Peace Sterland set the time for the hearing and trial of said action on November 14, 1913, at 2 o’clock p. ar., which [297] appears from the docket entry made by the said justice of the peace. Defendant made special appearance on November If, 1913, and filed in writing the terms of his special appearance, and at that time objected to the jurisdiction of the court to determine the said cause upon the ground that the notice required by statute as to the time and place of hearing of such case upon such change of venue had not been served as required by law. The motion of the defendant was overruled, and, the defendant not appearing, judgment was entered against him by default. The action was thereafter appealed to the district court on questions of law alone. The appeal was dismissed by the district court, and judgment entered in district court in favor of the plaintiff. The defendant assigns five specifications of error. No. f is as follows: That the court erred in dismissing the appeal from the justice court; No. 5. That the court erred in rendering judgment in favor of the plaintiff and against the defendant. Each of such errors is without merit as a matter of law, the district court having ruled properly in each of the matters assigned as error. Specifications of error numbered 1, 2, and 3 all concern the question of jurisdiction, and will be considered and disposed of together. The following entry appears in the'docket of Justice of Peace Sterland : “The defendant notified by letter delivered 11:10 a. m. on November 13, 1913, by Ed. Funk.” This entry is quite sufficient to-show that Justice of the Peace Sterland had given sufficient notice of time and place of trial as required by statute. It is recognized quite generally that justices of the peace are not experts, by reason of lack of legal knowledge, in making docket entries with technical precision and accuracy, and it cannot be expected that they can make such entries as intelligible as a court which would be learned in the law and learned in technical precision and accuracy, but it does not appear that there was anything else the defendant should be notified about excepting the time and place of the trial in question. The defendant had applied to Justice of the Peace Folsom for a change of venue, and such change of venue was taken to Justice of the Peace Sterland. This fact the defendant knew, and he would be expecting, therefore, that the case would soon come up for trial, and any notice that would indicate the time and place of trial would be sufficient, and from a reading of the entry of the justice it is justifiable to conclude that such notice contained [298] the proper information, and from what appears it mnst have contained the proper information; for the attorneys for the defendant appeared .at the proper time and place, although they specially made objection to the jurisdiction of the court. This of course would confer no jurisdiction if the court had none, but it would indicate that the notice •or the letter spoken of by the justice contained the proper information for the defendant as to the time and place of trial. Otherwise the attorneys for the defendant would not have known when to appear to make the objection to the jurisdiction. However, we think that none of the questions raised by the defendant .go to the jurisdiction of Justice of the Peace Sterland. The notice to be sent by the justice to the party who took a change of venue of the time and place of the trial is not a matter which goes to the jurisdiction of such justice. It is merely a notice of the time and place •of trial, and has nothing to do with the jurisdiction. Section 9038, •Compiled Laws of 1913, provides as follows: “From the time the •order changing the place of trial is made, the court to which the action is thereby transferred has the same jurisdiction over it as though it had been commenced in such court.” It will be seen, therefore, that the court before whom the action was -originally brought loses-jurisdiction as soon as it signs the order granting a change of venue, and also that at the moment such order is .-signed the justice to which the action is transferred at the same moment acquires jurisdiction over such action and persons just as much as though the action had been commenced in the court to which such actio:', is transferred. The point is that jurisdiction is lost by one court and acquired by another at the very moment the order is signed transferring such action. The proceedings which follow after the signing of the. •order are not jurisdictional in such case. It is the duty of the original justice to transcript all the papers in the action, and certify them, and -send them to the court to which such action is transferred. "We doubt if he could refuse to do so even if the $1 was not paid for such transcript; for having lost jurisdiction, there is nothing left for him to do but simply transfer the papers in the case, which was done by his transcript-. He might refuse to grant- the change of venue until the transcript was paid for; but after having once made the order and signed .the same granting the change of venue, he must in any event transcript [299] and send tlie papers and transcript of his docket to the court to which such ease is transferred. Considering the acts of the court to which such action is transferred concerning the transcript which has come into Ms possession, and the things that such court must do, such as advising the party taking the change of venue as to the time and place of trial, all of such matters •do not go to the jurisdiction of the court, but merely to the time and place of trial; for it is seen that the court to which said action is transferred received its jurisdiction exclusively, and only by reason of tbe •order signed by tbe court from wbicb sucb ease was transferred. There is another reason why appellant must fail in this case. It appears that tbe defendant at tbe time be made bis special appearance in tbe justice court to wbicb sucb case was transferred by change of venue made a motion to dismiss tbe action upon tbe ground that tbe court bad no jurisdiction. Such a motion made, while appearing specially, constitutes a waiver of all irregularities and defects in tbe proceedings bad, and amounts to and constitutes a general appearance. See Hart v. Tighe, 43 Neb. 348, 61 N. W. 635. Tor tbe reasons herein stated, there is no merit in tbe errors assigned wbicb challenges tbe jurisdiction of tbe court in this case. Justice of tbe Peace Sterland bad complete jurisdiction to enter sucb judgment, and so also bad tbe district court of Stark county. There is no error in this case, and tbe judgment was properly entered. Tbe judgment of tbe District Court of Stark County is affirmed, with tbe costs of all courts. Robinson, J. I concur in result.