Nebraska Reports Volume 23

Nebraska Reports Volume 23

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1888 edition. Excerpt: ...22 Neb., 198, it was held, "that the transcript of the proceedings before the justice of the peace not having been presented to the clerk of the district court until after the second day of the term of the ' court next after such appeal, ' and more than thirty days having elapsed since the rendition of the judgment appealed from before the filing of such transcript, the dismissal of such appeal, under sections 1008 and 1011 of the civil code, was not error." It is by strong implication, therefore, that it would have been equally proper for the court, instead of dismissing the appeal, to have rendered the same judgment, as in this case, rendered in the justice's court. It must be considered that a strict statutory construction of Sec. 1011 would limit the authority of the court to the first term, occurring more than thirty days from the rendition of the judgment appealed from, for the appellee to avail himself of the right to file the transcript, which had been neglected by the appellant, and claim an affirmation of the judgment of the justice, or the alternative dismissal of the appeal. But I do not think this section should receive that form of construction; its language is directory rather than mandatory of the appellee's privileges; it permits the filing of his transcript and motion to the court immediately, "at the same term" of the appellant's default, but does not require it; nor docs it re Wilson v. Wilson. strict or limit the authority of the court. In the case at bar the judgment was for a considerable sum; the defendant, whether intentionally or not, staid proceedings merely by his undertaking to appeal and his default in perfecting it. As a consequence and penalty of that...
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Product details

  • Paperback | 280 pages
  • 189 x 246 x 15mm | 503g
  • United States
  • English
  • black & white illustrations
  • 123684176X
  • 9781236841766