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MCDONALD v. PENNISTON.
It was not necessary to issue or serve a summons, the defendants, by their attorney of record in the court below, having entered a voluntary appearance. Section 584 of the Code provides, that service of summons on the attorney of record in the original case, shall be sufficient in cases of error. If the service might be legally made upon him, we think he might waive the issuance and service of summons for his clients, which he did in this case.
Section 486 requires that the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified. There is no such transcript filed with this petition in
Copies of what seem to be the original files in the case below are attached to the petition in error. And there is no authenticated transcript of the record containing the final order or judgment sought to be reversed. There is a paper attached to the petition in error which, after reciting the title of the cause, etc., reads as follows:
" And now comes the plaintiff, by B. J. Hinman, his attorney, and makes proof that defendant was personally and duly served with a summons in said action, in which defendant was required to answer on the eleventh day of April, 1870, and the defendant having failed to appear and answer or demur to the petition of plaintiff in said action, wherein is claimed four hundred and sixty-eight dollars and twenty cents, the court finds that the plaintiff ought to recover of the said defendant the sum of four hundred and forty-eight dollars ; it is therefore considered by the court that the said plaintiff recover of the defendant the said sum of four hundred and forty-eight dollars, and also his costs expended, taxed at seventeen dollars.”
This is all that purports to be a record of any judgment, and it cannot be determined from this paper or any others attached to this petition in error, in what State or what
MCDONALD 0. PENNISTON.
court, or when or where any of the things set out therein were had or done. The record should state facts sufficient to show when and where the court was held, the term, the name of the judge or judges and officers present, so the court above may know, from the facts set out that the proceeding was had before a proper court. This is not done. a
. A record is the history of a cause from its commencement, the issuing of the original writ or filing the precipe, until final judgment is entered. Section 446 of the Civil Code defines how the record shall be made up in the following words: “The records shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.” Section 444 re. quires the clerk to make a complete record of every cause as soon as it is finally determined, unless such record, or some part thereof, be duly waived, and section 443 reads as follows : “All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted.” The journal is one book and the record book is another. The statute requires the journal of the court to be kept, and an entry there is all that is indispensable to make an act of the court effectual. The entries in the journal are not any part of the complete record of the case.—1 Ohio, 268. The book is one of the records of the court containing a part of the necessary materials to make the complete record; when all is done to authorize the recording officer to record it, it is in law considered as recorded, although the labor of writing it in a book kept for that purpose has not been performed.—4 Ohio, 79; Young v. Buckingham, 485, 488; 18 Ohio, 535, 545.
There is no transcript attached to the petition in error, as hy law required, and for this reason the motion to dis miss should be sustained.
MILLS 0. MURRY.
Mills v. Murry.
1. PABTIES to suits brought on choses in action. The assignee of a chose in
action is the proper and the only party who can maintain a suit thereon.
This was a petition in error to reverse a judgment rendered by the District Court for Douglas county, when Nebraska was a Territory. The facts fully appear in the opinion.
J. M. Woolworth and C. H. Brown, for plaintiff in error.
A. J. Poppleton, for defendant in error.
This cause was tried originally in the late Territorial District Court for Douglas county, and is brought here by proceedings in error to review the judgment of that court.
The plaintiff in error was the assignee of certain rents alleged to have accrued to one Ira Cook from the defendant, for the use and occupation of a lot in the city of Omaha. He brought this suit to recover a judgment therefor.
Upon the trial testimony was introduced showing the occupation of the premises by the defendant, the rental value thereof during his occupancy, and the assignment of the rents so accrued by Cook to the plaintiff.
The plaintiff also offered further testimony tending to prove a written assignment of said rents to himself by Cook. This was objected to by the defendant, who at the same time moved the court to exclude from the jury all testimony which had been given relative to the occupation cf said lot by the defendant under Cook, the value of the use of the same, and the assignment of his claim for rent by Cook to the plaintiff, on the ground that by the law,
Mills v. MURRY.
the plaintiff could not maintain an action therefor in his own name. The court sustained the objection and excluded the testimony for the reason stated, and the jury returned a verdict for the defendant. A motion for a new trial was subsequently made by the plaintiff because of the alleged errors of law in excluding said testimony, which was overruled and judgment entered on the verdict, to reverse which the case is brought here.
There is but one question presented in the record for this court to decide. Is a chose in action assignable under our law so as to vest in the assignee a right to maintain an action therefor in his own name ?
We had supposed that since the adoption of our present Code of Civil Procedure this was not an open question, and that the action could only be brought by and in the name of the assignee, the person beneficially interested therein, save in certain excepted cases. Section 29 of the Code of Civil Procedure provides that, “every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section thirty-two." But section thirty-two has no application to the case at bar. Similar provisions were incorporated in the Codes of Civil Practice of 1855 and 1857, and ever since the first organization of our courts it has been the uniform practice to bring suits on choses in action in the name of the assignee. Mills being the assignee of this claim for rent and the real party in interest, was entitled to bring the action for its recovery in his own name. It could not have been maintained in the name of Cook after the transfer of his interest therein by the assignment. The learned judge was evidently mis. taken in his view of the law, and improperly excluded the plaintiff's testimony from the jury.
The judgment of the District Court is reversed and a trial de novo awarded.
Reversed and remanded.
KITTLE V. FREMONT.
Kittle v. Fremont,
1. Parties to actions of public concern. A common or public nuisance, ir
committed without lawful authority can be remedied by a public proseciltion instituted by the proper public officer, on behalf of the people.
-: An individual who is specially injured by a common or public nuisance
may maintain a suit to have the same abated.
-: But a private person cannot maintain an action to abate a public nuis
ance unless he can aver and prove some special injury to himself.
4. LEGISLATIVE ACT APPROVING THE alleged nuisance. It is competent and
proper for the legislature to validate the action of town authorities, in modifying the location of public parks, and such provisions operate to waive the ground of complaint of the public.
This was an appeal from a decree of the District Court for Dodge county. The facts appear in the opinion of the court.
E. F. Gray, for appellant.
The vacation of parks and closing of streets and alleys are not within the delegated powers of the trustees of towns in this State, as see Nebraska Statutes of 1855 and '56, page 41, sec. 4.
The trustees being ministerial officers created by statute, they can exercise no other or greater authority than is vested in them by the statute.-Sedgwick on Statutes, etc.,
The legalizing act pleaded (sec Statutes of 1861, page 117) is of that class of statutes called Retroactive, and is sometimes allowed to cure an irregularity in the election of officers and the like, but not to make valid what was in itself a nullity.-Sedgwick on Statutes, etc., page 198.
Besides this statute is scarcely definite enough to effect anything of itself, as to close this park, etc.
But were it sufficiently comprehensive for the purpose,