First Trust Co. of Lincoln, Neb. v. Hammond
| Decision Date | 21 November 1941 |
| Docket Number | 31006. |
| Parties | FIRST TRUST CO. OF LINCOLN, NEB., v. HAMMOND. |
| Court | Nebraska Supreme Court |
Appeal from District Court, Lancaster County; Broady, Judge.
On motion for rehearing.
Opinion modified and decree reversed with directions.
For former opinion, see 299 N.W. 496.
Woods Aitken & Aitken, of Lincoln, for appellant.
Beghtol, Foe & Rankin, Walter E. Nolte, and Boehmer & Boehmer, all of Lincoln, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and YEAGER, JJ.
On consideration of the motion for rehearing, and a further analysis of the record and the proceedings, it is deemed necessary to supplement the original opinion in this case found in 299 N.W. 496, 498.
In the opinion it is stated: This is a correct reflection of the record to this extent, but it ignores the fact that after the motion the plaintiff rested its case as did also the defendant.
This situation then renders inapplicable the rule adopted from Lucas v. Lucas, 138 Neb. 252, 292 N.W. 729, as follows: " Where a trial court in an equity case erroneously dismisses the suit at the close of plaintiff's evidence, this court ordinarily will remand the case for a new trial." This rule should have no application where both parties have rested, as in the case at bar.
This departure from the original opinion requires, on the weight of evidence, that this court shall find that all of the property and estate in question here, except the $15,000 check, the accumulation of checks amounting to about $5,000 the joint savings account amounting to $20,648.56, and the joint checking account amounting to $2,059.87, was the property of Willard Hammond, and that the plaintiff was entitled to its possession as guardian; that the properties not excepted were wrongfully converted to her own use by the defendant, that such properties were constructively in her trust, and that she should be required to deliver these properties, together with the accretions thereto, to the plaintiff.
The decree of the...
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In re Scott's Estate
...265 N.W. 252; Smith v. Pacific Mutual Life Ins. Co., 130 Neb. 501, 265 N.W. 534; First Trust Co. v. Hammond, 140 Neb. 330, 299 N.W. 496, 300 N.W. 808. In this it becomes necessary to determine what Mary E. Scott intended when she executed the assignment to the plaintiff. Hild v. Hild, 135 N......
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Struthoff v. Cook (In re Scott's Estate)
...460, 265 N.W. 252;Smith v. Pacific Mutual Life Ins. Co., 130 Neb. 501, 265 N.W. 534;First Trust Co. v. Hammond, 140 Neb. 330, 299 N.W. 496,300 N.W. 808. In this case it becomes necessary to determine what Mary E. Scott intended when she executed the assignment to the plaintiff. Hild v. Hild......
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