McCormick Harvesting Machine Co. v. Halvorson
McCormick Harvesting Machine Co. v. Halvorson
Opinion of the Court
On appeal by plaintiff to the circuit court, a judgment of a justice of the peace dismissing its action, and for costs taxed against it at $32.60, was reversed; and the defendant, in favor of whom said judgment was rendered, appeals to this court.
' The judgment as rendered by the justice, and as shown by his' docket when the notice of appeal and proposed statement of the case were filed and served,' purports to have been entered upon the ex parte application of the defendant as follows: “This 27th day of August, 1897, case brought into this court on change of venue from city justice court, and transcript and summons filed, and action docketed; and now, on September 3, 1897, defendant comes into court, and moves the dismissal, without prejudice, of this action, and said action is hereby dismissed, without prejudice, at plaintiff’s costs, and judgment is hereby rendered against the said plaintiff and in favor of the defendant for $32.60. O. A. Fowler, Police Justice.” The errors of law then relied upon- for a reversal on appeal to the circuit .court were: “(1) That the said police justice, O. A. Fowler, erred in rendering judgment in said action in favor of the defendant and against the plaintiff; (2) that the'said police justice, O. A. Fowler, erred in rendering judgment in said action, for the dismissal thereof, and for costs in favor of defendant, without having iásued any notice to the parties to said action, stating the time and place when and where said action would be tried, and without - serving such notice on the said
By assuming, as we may, that the judgment, as formerly docketed and entered by the justice, was erroneous in the material particulars claimed, and that the change was made in good faith by some one several days later, we are relieved from considering numerous affidavits presented to the trial court involving questions of veracity and moral turpitude, because, in legal significance, the cogent fact is that the alteration was unauthorized and void in any event. After a justice of the peace has once entered a final judgment in his docket, upon which a defeated litigant has proceeded with reference to an appeal, it
Ignoring, as the trial court very properly did, the substitution of the word “plaintiff’ for “defendant, ” it appears that the action was instituted before City Justice A. B. Wheelock, and at the instance of the defendant a change of venue was had to Police Justice Fowler, in whose court the papers were filed on the 27th day of August, 1897. On the 3d day of the following month, judgment of dismissal, and for costs against plaintiff, was entéred upon the ex parte application of defendant, in the absence of any agreement of the parties as to the time of trial, and without the service or issuance of a notice by said justice stating when and where the trial would take place, as required by Section 6047 of the Compiled Laws. Under such circumstances, the court was fully justified in reversing the justice, and in remanding the case for a new trial. The judgment appealed from is affirmed.
Reference
- Full Case Name
- McCormick Harvesting Machine Company v. Halvorson
- Status
- Published
- Syllabus
- 1. A justice of the peace, after entering a final judgment in his docket, on which the defeated party has taken steps for an appeal, cannot, on his own motion, change the entry to show that the action was dismissed on motion of plaintiff, rather than of defendant, as recited in the entry. 2. Dismissal of action, on ex parte application of defendant, seven days after change of venue was had therein, at his instance, from the justice of the peace before whom it was brought to another, — there being no agreement of the parties as to time of trial, or notice by the justice stating time and place of trial, as required by Comp. Laws, § 6047, — is error.