King Bros. v. Jackson

Reese, Ch. J.

The facts out of which this cause has grown may be stated as follows: Plaintiffs in error instituted their action in the district court against defendants in error upon a book account for goods sold and delivered, the *467 balance alleged to be due being $115.75. An affidavit of non-residence was filed and an attachment procured, which was followed by the publication of notice in the usual way. The order of attachment was levied upon certain real estate. On the 15th day of December, 1885, defendants appeared specially by their attorney, and filed objections to the jurisdiction of the district court. These objections Avere overruled, and the cause continued Avith leave to plaintiffs, or rather to the sheriff, to amend the return to the order of attachment so as to conform to the facts. On the 5th day of May, 1886, defendants filed a motion to dismiss the action, for the reason that at the time of its in-' stitution plaintiffs Avere, and had continued to be, non-residents of the state, and had failed to give security for costs as provided for by section 612 of the civil code. Pending this motion plaintiffs asked leave to file the necessary security within a reasonable time, to be fixed by the court, when the following order was made: “ Leave to plaintiffs to give security for costs within thirty days, and in'default thereof the cause to stand dismissed.” This order was made on the 6th day of May, 1886. No undertaking for costs was filed until the 7th day of June of the same year, Avhich was more than thirty days after the entry of the order above quoted. On the 29th day of January, 1887, and at the next term of court, defendants moved to strike the case from the docket, for the reason that the order of May 6th had < not been complied Avith by giving the required security within the time designated. This motion was afterwards sustained, and the cause stricken from the docket. Plaintiffs allege error, and bring the case into this court by proceedings in error, seeking to reverse the order striking the case from the docket.

No brief is filed by defendants in error. It is the opinion of the writer that the district cou.rt did not err, and that the cause was dismissed by the order of May 6th, and by the default of plaintiffs in failing to file the security *468 within the time designated; and that the case should not have been placed upon the docket for the subsequent term,, or if such were not the case, the matter rested in the discretion of the district court, and that its order striking the case from the docket was not an abuse of such discretion. Robare v. Kendall, 22 Neb., 677. But the majority of the court are of a different opinion, and hold that the court. had not lost jurisdiction of the case ; that it appears that an honest effort had been made to comply with the order of the court, the undertaking having been filed one or two-days after the expiration of the short time fixed within which to file the same, and there being no default at the time the motion of defendants in error to strike the case from the docket was filed (the undertaking being then on file), the district court retained jurisdiction and authority over the case, and should have permitted the cause to remain upon the docket for trial. Such, therefore, must be the holding of this court.

The judgment of the district court is reversed, and the cause remanded, with directions to re-instate the case upon the trial docket, and for further proceedings.

Reversed and remanded.

The other judges concur.