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GUARANTY LOAN ASSOCIATION v. OSBURN
Mr. Chief Justice Bean delivered the opinion. On June 23, 1898, the defendant, Osburn, commenced an action against the plaintiff corporation in the Justice’s Court for East Portland District to' recover the statutory penalty (Hill’s Ann. Laws, § 3034), for a failure to release or discharge a mortgage, and for $150 special damages. The summons required the defendant to appear on the thirtieth of June, at 9 o’clock in the forenoon, at. the office of the justice, to answer the complaint.
It was issued, returned, and filed on the twenty-third, with an indorsement of service thereon; but no subsequent entry was made in the justice’s docket, or action taken in the case, so far as the record .shows, until July 6, when the following entry was made: “Comes now the plaintiff, by his attorney, Wm.
Reid, and moves the court for a judgment by default; and, it appearing to the court that the defendant has been regularly served with summons and complaint, and the defendant has failed to answer the complaint as required by law, it is considered that the plaintiff recover of the defendant the sum of two hundred and four dollars, and his disbursements, taxed at three dollars, and that execution issue therefor.” On August 570 13, 1898, the plaintiff sued out a writ of review to set aside and annul such judgment, 011 the ground that the return of service indorsed on the summons was insufficient to give the .court jurisdiction, and that it does not appear from the entries in the justice’s docket that it was in default.
The court below remitted the special damages, but affirmed the judgment as to the statutory penalty, and the plaintiff appeals. The sufficiency of the return need not be determined, as the other defect is fatal to the judgment. It was rendered some seven or eight days after the return day of the summons, and yet there is nothing in the record to show that plaintiff failed to appear on the return day, or was in default.
So> far as the record discloses, it may have appeared at the time and place specified- in the summons to' defend the action, and neither the plaintiff in the action nor the justice have been present. If so-, clearly a judgment for want of an answer could not be rendered against it a week or ten days later. The justice is required by the statute to enter in his docket the failure of a party to- appear: Hill’s Ann. Laws, § 2055, subd. 4.
And there must be a substantial compliance with the requirement, to authorize the entry of a judgment by default which will not be subject to a direct attack: 6 Enc. PI. & Prac. 54.
Where the record of a justice of the peace shows that the court convened at the time and place specified in the summons, and after waiting the statutory time a judgment was rendered against a defendant for want of an answer, it will perhaps be sufficient, although no formal default was entered, as the record actually made is practically equivalent thereto: Hardy v. Miller, 11 Neb. 395 (9 N. W. 475).
But, when the judgment is rendered some days later, the mere recital that it was entered for want of an answer is insufficient, because it is not inconsistent with an appearance of the defendant at the time and place specified in the summons.
Nor will the statement that it was entered for want of an answer “as required by law” cure the 571 defect, since that is but a conclusion, and does not necessarily show that the defendant did not appear at the proper time and place in obedience to the requirements of the summons. The judgment of the court below is therefore reversed, and the cause will be remanded, with directions to' remand it to the justice’s court for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.