
    Roman Wojeck, appellee, v. John Nickles, appellant.
    Filed April 3, 1915.
    No. 18041.
    Appeal: Courts: Presumption. It is the duty of the trial courts to cause a defendant who appears without counsel to be informed of his rights. In the absence of evidence to the contrary, this court will presume that the trial court has performed that duty.
    Appeal from the district court for Douglas county: Charles Leslie, Judge.
    
      Affirmed.
    
    
      Wayne E. Sawtell and Edward Simon, for appellant.
    
      Arthur C. Pancoast, contra.
    
   Sedgwick, J.

This action was begun in the district court for Douglas county in May, 1911. It was alleged in the petition that defendant had kept a vicious dog which attacked and injured plaintiff. The defendant appeared by attorneys and filed a motion to strike ont of the petition various matters alleged to be redundant and immaterial. Afterwards, on October 9, 1912, and while the motion was pending, defendant’s attorneys withdrew from the case. The court at once overruled the motion, and the defendant was called by telephone. Defendant is a foreign-born citizen, with very imperfect knowledge and use of our language. Upon Ms appearance in court in obedience to the telephone call, a jury was impaneled, and the plaintiff’s attorney announced: “I desire the record to show that we waived peremptory challenges, and Mr. Nickles said he was satisfied with the jury.” The defendant replied: “I aint satisfied with the jury. I want to tell the jury what was happening. I want my witnesses here.” Why the plaintiff allowed a year and five months to elapse without obtaining a ruling on the motion attacking his petition, or taking any action to advance his case to a hearing, does not appear from the record. On the same day that the motion was passed upon the case was put upon trial; the defendant was called, but he evidently did not know anything about his rights, nor about the procedure in the courts. The court ought, under such circumstances, to carefully instruct him as to the situation, and of the necessity of counsel. The jury returned a verdict in favor of the plaintiff. Judgment was entered thereon, and defendant has appealed.

After the trial and judgment defendant employed counsel, who filed a motion for new trial, but the allegations of the motion were not supported by any evidence. The presumption is so strong that the trial court would perform every duty that we must assume that everything was fully explained to the defendant, and that he desired the case to proceed without any answer on file and without the assistance of counsel. We cannot presume otherwise in the absence of affirmative showing in the record.

The judgment of the district court is therefore

Affirmed

Barnes, Fawcett and Hamer, JJ., not sitting.  