
    David Brunck v. Charles L. Wood.
    [Filed January 4, 1892.]
    1. County Court: Appeal: Time. Judgment was rendered in a county court on the 29th of May, and a transcript for an appeal filed in the district court on the 27th of June following. Meld, Filed within time.
    
      2. -: Continuance. Where the transcript of the county judge shows a continuance to May 27, and a trial and verdict on May 29, it will be presumed that the trial began on May 27, and continued until May 29.
    Error to the district court for Lincoln county. Tried below before Church, J.
    
      H. D. Rhea, for plaintiff in error.
    
      Grimes & Wilcox, contra.
    
   Maxwell, J.

This action was brought by Wood against Brunck in the county court of Lincoln county. There was a trial to a jury which returned a verdict in favor of Wood. Brunck then appealed to the district court, where the appeal was dismissed upon the ground that the transcript had not been filed within thirty days from the date of judgment in the county court. From that judgment the case was brought into this court. It appears from the transcript that the action was begun on the 30th of March, 1889. Continuances were had until May 27, 1889. The transcript from that date is as follows:

“May 27th, 1889. This cause again came on for hearing and the defendant called a jury selected as follows:

“venire eor jury.

“State of Nebraska, Lincoln County.}ss

“The state of Nebraska'to the sheriff or any constable of said county, greeting: You are hereby commanded to summon Frank Peale, Alex. Stewart, Jno. Holman, C. S. Clinton, A. S. Brown, H. Otten to appear before me at the county court room in said county and state on the 27th day of May, A. D. 1889, at 3 o’clock in the afternoon, to serve as jurors in a case pending before me, then and there to be tried, and this they shall in nowise omit, and have you then and there this writ, with your doings thereon.

“Given under my hand, this 27th day of May, 1889.

“[seal.] J. J. O’Rourke,

County Judge.

“State of Nebraska, Lincoln County.}

“Received this venire for jury this 27th day of May, 1889, and as commanded, I on the same day and date served on H. Otten, C. S. Clinton, John Holman, A. S. Brown, and Alex. Stewart by reading same to them.

“ Fees, service and return.................................$1 50

“ Mileage..................................................... 20

“$1 70

“C. L. Patterson, Constable.

“Summons issued and delivered to C. L. Patterson, requiring the jury to appear at 3 o’clock P. M. to-day, to which time I adjourned the cause.

“May 29th, 1889, 3 o’clock P. M. The following jurors appeared: Frank Peale, C. S. Clinton, John Holman, H. Otten, Alexander Stewart, A. S. Brown being absent. The jury were then examined and sworn.

“Trial had; plaintiff called as witnesses Mrs. C. L. Wood, Fred Hanlan, and David Cash, who were examined and sworn, and the defendant called as witnesses W. H. Brunck, Mrs David Brunck, who were sworn, and examined. The jury, having heard the evidence, and the arguments of the counsel, on the same day agree upon the following verdict:

* * * * * *

“verdict op jury.

“ The State of Nebraska, Lincoln County.}

“ May term, A. D. 1889, to-wit, May 27, 1889.

“Chas. L. Wood, Plaintiff, v. David Brunck, Defendant.}

“ We, the jury in this case, being duly impaneled and sworn, do find and say that we find for the plaintiff, and assess his damages at $50. F. Peal, Foreman.

(Not filed.)

“It is therefore considered by me that the plaintiff recover from the defendant the sum of $50 and his costs herein expended, taxed at $17.35.

“ J. J. O’Rourke, County Judge.”

There is also an affidavit of the attorney for the plaintiff in error that the judgment was rendered on the 29 th of May, 1889, and this affidavit is not contradicted. The transcript was filed in the district court on the 27th day of June, 1889. The transcript thus is shown to have been filed within thirty days from the date of the rendition of judgment in county court. Some comment is made in the brief of the attorney for the defendant in error as to rendering of judgment on the 29th of May, it being assumed that the verdict was rendered on the 27th of May, 1889. No complaint is made of the want of jurisdiction of the county court. The judgment evidently is valid, unless reversed or modified in some of the modes provided by law. The trial probably begun on the 27th and continued until the 29th. But, however this may be, it is evident that a judgment was rendered on the 29th, the day to which the trial was continued, and the thirty days in which to file the transcript commenced at that time. The district court therefore erred in dismissing the appeal. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.  