M. K. & T. Railway Co. v. Crowe

The opinion of the court was delivered by Kingman, C. J.: This action was for damages resulting from the alleged trespasses of the plaintiff in- error on the premises of defendant in error. The petition prayed for treble damages. The defendant being in default, and a jury having been waived by the plaintiff, the cause was tried by the court, and a judgment’rendered for the plaintiff (defendant in error) for $300. Afterward plaintiff in error filed two motions to set aside the judgment. The first motion was on the ground that there had been no legal and valid service of the summons, by any person authorized to serve such summons: The second motion was on three grounds, 1st, Misconduct of the plaintiff; 2d, Surprise, which ordinary prudence could not have guarded against; 3d, Irregularity in obtaining the judgment. Both motions were overruled, and -the ruling of the court on these motions are the. errors complained of in this court. [500] I. The return indorsed upon the service shows valid service. Laws of 1871, ch. 123, p. 285. This statute makes a material change in the laws as to service of process on corporations, and so far as it makes such change.supersedes the provisions of the general statutes. II. There is nothing in the record tending to show any misconduct of the plaintiff. The surprise alleged, arose from these facts: Previous to the commencement of the term, the attorney for the Railway Company, which was then in default, asked the judge of that district if this and another case against the Railway Company, would be tried at the next term of the court. The judge answered that they would not. Acting on this answer, the attorney of the company, who lived at a distance from Lyon county, did not attend the court, and made no preparations for a trial. If a statement of a judge out of court is judicial, then an attorney has a right to rely on it, and plead it in any proceeding that may arise. If it is not judicial, then a party may rely upon it, but at his peril. If it is judicial, then the other side has a right to be present, is entitled to notice, and may be allowed to except. It is idle to attempt to show that such statements are judicial. They are like the statements of any one else, and a party trusts them at his peril. If they do not prove correct, then, although the attorney may be surprised, yet he has no reason to complain. The opposing party is not to blame, and is entitled to have his 'cause heard when it is reached, regardless of what the judge said off the bench. It is supposed the judge thought the case would not be reached. In this he was mistaken. The attorney, relying on his judgment on this point, did not attend, and the court very properly heard the case. The “irregularity” complained of is, that the court assessed treble damages, and that the case is one not authorizing such a judgment. There is no showing whatever that the court did render a judgment for treble damages. The judgment is affirmed. All the Justices concurring.