Topping v. J. C. Grant Mfg. Co.

Topping began a suit by attachment before a justice of the peace against the J. C. Grant & Sons Manufacturing Company. Richard D’Oench was summoned *45as garnishee. On the twelfth day of April, 1898, the attachment was sustained, and on April 21, a judgment was entered by default against the defendant for the debt, amounting to $129.70, and on the same day a judgment for a like amount was entered against D’Oench as garnishee. Within ten days thereafter, to wit, on April, 30, the garnishee filed a motion before the justice asking that the judgment by default against him be set aside. On May 19 the justice overruled the motion, and on the same day the garnishee applied for and perfected his appeal to the circuit court. The latter court was of the opinion that the appeal was not taken within the time prescribed by the statute, and a judgment of dismissal for that reason was entered. The garnishee has appealed to this court.

It will be observed that the appeal from the judgment of the justice was allowed within ten days after the motion to set aside the default "was overruled, but more than thirty days after the rendition of the judgment against the garnishee. It is contended by the appellant that he had ten days within which to take his appeal after the refusal of tho justice to set aside the default. This was unquestionably true under the law of 1879. By section 3040 under that revision there could be no appeal from a judgment by default before a justice unless the justice refused to sustain a motion to set aside the judgment, and unless such motion was filed within ten days after the rendition of the judgment. The succeeding section (3041) provided that appeals from judgments rendered by justices of the peace must be made within ten days, or “when the judgment is by default or nonsuit within ten days after the refusal of the justice to set aside the default or nonsuit and grant a new trial.” At a subsequent session of the legislature (Laws of 1885, p. 187), the legislature repealed section 3040, supra, and also that portion of section 3041 above quoted. Section 3041 *46as thus amended was carried into the revision of 1889 (section 6328). In the same revision section 2949, Revised Statutes 1879 was re-enacted (sec. 6327, R. S. 1889), by which a justice of the peace is authorized to set aside judgments of nonsuit and by default, provided applications therefor are made within ten days, etc. It is insisted by counsel for appellant that when this section is considered the only effect of the repeal of section 3040, supra, and the amendment of section 3041, supra, was to relieve litigants of the burden of first applying to the justice to set aside a judgment by default or nonsuit before they were entitled to an appeal, and that under section 6327, supra, the right to make such application being preserved, such a judgment does not become final and effective, if a motion to set it aside is made within the time, until such motion be overruled, and that therefore the appellant in this case had ten days after the justice overruled the motion to set aside the judgment to take his appeal. There would be some force in this argument if the clause in section 3041 above quoted had not been repealed. By so doing the legislature clearly intended to limit the right of appeal in all cases as provided by section 6328, supra, which provides that appeals must be made within ten days after the judgments unless the party against whom the judgment is rendered is a nonresident of the county, etc. No other conclusion is permissible.

Wherefore we conclude that the order of the circuit court dismissing the appeal was right, and it will be affirmed.