Arla Cattle Co. v. Knight
| Decision Date | 16 November 1962 |
| Docket Number | No. 35269,35269 |
| Citation | 118 N.W.2d 1,174 Neb. 360 |
| Parties | ARLA CATTLE COMPANY, a corporation and Charles E. Murphy, Appellants, v. Reuben E. KNIGHT and Florence Knight, his wife; F. M. Knight, Deceased; The Estate of F. M. Knight; Edward M. Knight and Ruth Knight, his wife; Edward J. Bignell and Jeannine M. Bignell, his wife, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In the absence of a bill of exceptions it is presumed that an issue of fact presented by the pleadings was established by the evidence, that it was correctly decided, and the only issue that will be considered on appeal is the sufficiency of the pleadings to support the judgment.
2. Affidavits used as evidence on the hearing or trial of any issue of fact must have been, as a prerequisite to examination of them in this court, identified and offered in evidence in the trial court and embodied in a bill of exceptions.
3. This court on appeal will consider only those assignments of error which are argued in the brief of the appellant.
4. Section 25-1331, R.R.S.1943, provides: 'A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.'
5. In order to obtain a summary judgment the movant must show, first, that there is no genuine issue as to any material fact in the case, and second, that he is entitled to a judgment as a matter of law.
6. The issue to be tried on a motion for summary judgment is whether or not there is a genuine issue as to any material fact, and not how that issue should be determined.
7. The Summary Judgments Act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial.
8. The true test in determining whether a conveyance absolute in form should be treated as a mortgage is whether the relation of the parties to each other as debtor and creditor continues. If it does so continue, the transaction will be treated as a mortgage and the conveyance as security only, otherwise not.
Wade H. Ellis, Alliance, Charles A. Fisher, Charles F. Fisher, Chadron, for appellants.
Reddish, Fiebig & Curtiss, Alliance, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action in equity by the Arla Cattle Company, a corporation, and Charles E. Murphy, plaintiffs, against Reuben E. Knight and Florence Knight, husband and wife; F. M. Knight, deceased; the Estate of F. M. Knight, deceased; Edward M. Knight and Ruth Knight, husband and wife; and Edward J. Bignell and Jeannine M. Bignell, husband and wife, defendants. The purpose of the action was for an accounting; that a warranty deed dated April 7, 1933, an affidavit, a warranty deed dated December 3, 1960, and a warranty deed dated January 2, 1958, be decreed to be satisfied and constitute a mortgage in favor of the defendants and against the plaintiffs; that the amount due, if any, at the date of decree be ordered paid by the plaintiffs to the defendants, after deducting all sums paid by the plaintiffs on leases to the defendants, less sums received by the defendants from sales of parcels of the land involved to others, and all sums received by the defendants from oil and gas leases, the defendants to be credited for all sums paid by them for real estate taxes; that the defendants, and each of them, be required to reconvey the real estate to the plaintiffs; and that the title of the plaintiffs in and to the real estate be quieted against any and all claims by or on behalf of any of the defendants and all persons claiming by, through, and under them.
The defendants Reuben E. Knight, Florence Knight, Edward M. Knight, and Ruth Knight filed a motion for summary judgment, without filing an answer to the plaintiff's petition as amended.
The defendants Edward J. Bignell and Jeannine M. Bignell filed an answer and cross-petition to the plaintiff's petition, and filed a motion for summary judgment.
The trial court sustained the motion for summary judgment filed by the defendants Reuben E. Knight, Florence Knight, Edward M. Knight, and Ruth Knight; sustained the motion for summary judgment filed by the defendants Edward J. Bignell and Jeannine M. Bignell; and dismissed the plaintiffs' petition as amended, with prejudice.
The plaintiffs filed a motion for new trial which the trial court overruled. The plaintiffs appealed from the order overruling the motion for new trial.
There is no bill of exceptions in this case.
'In the absence of a bill of exceptions it is presumed that an issue of fact presented by the pleadings was established by the evidence, that it was correctly decided, and the only issue that will be considered on appeal is the sufficiency of the pleadings to support the judgment.' State ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373. See, also, Bryant v. Greene, 163 Neb. 497, 80 N.W.2d 137.
In Powell v. Van Donselaar, 160 Neb. 21, 68 N.W.2d 894, the court said:
This court on appeal will consider only those assignments of error which are argued in the brief of the appellant. See Rule 8, subd. a, par. 2(4), Revised Rules of the Supreme Court of the State of Nebraska, 1960.
The plaintiffs set forth a number of assignments of error. However, the plaintiffs concede that the court is here asked to decide only one real question, the question of whether there is any genuine issue as to any material fact involved. The only assignment of error discussed, therefore, is whether or not there is any genuine issue as to any material fact involved. We shall consider this as the question to be answered in the instant case.
The plaintiffs contend that the motion for summary judgment of the defendants Reuben E. Knight, Florence Knight, Edward M. Knight, and Ruth Knight, filed before pleading responsively to plaintiffs' petition, was filed prematurely; that the defendants Knight have not filed their answer to the plaintiffs' petition and amended petition; and that the said motion of the defendants Knight is out of order and contrary to law.
Section 25-1331, R.R.S.1943, provides: 'A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.' See, also, Rule 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A.
A leading authority on the federal rules states: '* * * the proposition is well settled that a defending party may move for summary judgment prior to the service of a responsive pleading.' 6 Moore's Federal Practice (2nd ed.), s. 56.08, p. 2049. See, also, cases cited in footnote 7, 6 Moore's Federal Practice (2nd ed.), s. 56.08, p. 2047.
The fact that the defendants Knight had not filed a responsive pleading does not make their motion for summary judgment premature, and such motion was timely filed. The plaintiffs' contention in this respect is without merit.
In Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643, the court said: 'In order to obtain a summary judgment the movant must show, first, that there is no genuine issue as to any material fact in the case, and second, that he is entitled to a judgment as a matter of law.' See, also, Miller v. Aitken, 160 Neb. 97, 69 N.W.2d 290.
In Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244, the court said that the issue to be tried on a motion for summary judgment is whether or not there is a genuine issue as to any material fact, and not how that issue should be determined.
'The Summary Judgments Act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial.' State v. Kidder, 173 Neb. 130, 112 N.W.2d 759.
With the foregoing authorities in mind, we now come to the pleadings in this case.
The plaintiffs' petition as amended alleged in substance that this action was brought by the Arla Cattle Company, a corporation organized and existing under the laws of Nebraska with its principal offices in Alliance, Nebraska, by and through its president, Charles E. Murphy, and by Charles E. Murphy individually; that the plaintiffs have been the owners and at all times have been in possession of certain lands which are described in the petition, comprising 4,542.81 acres of which 1,002.81 acres are in Morrill County and 3,540 acres are in Box Butte County; that on or about April 7, 1933, Charles E. Murphy and Martha E. Murphy, his wife, now deceased, being financially embarrassed, were indebted to and did make and execute to F. M. Knight, a loaner of money, a warranty deed for the stated consideration of $61,037.44, being the principal and interest on a promissory note claimed due from Charles E. Murphy and Martha E. Murphy to F. M. Knight, now deceased, and predecessor and heirs herein to Reuben E. Knight and Edward M. Knight; that said warranty deed was intended to be, and was in truth and in fact, a mortgage from Charles E. Murphy and Martha E. Murphy to F. M. Knight, deceased, for the sum of $61,037.44, was not to be recorded, and was to be returned to Charles E. Murphy and Martha E. Murphy upon their...
To continue reading
Request your trial
-
Timmerman v. Hertz, 40167
...upon an issue of fact, the evidence must have been offered in the trial court and embodied in a bill of exceptions. Arla Cattle Co. v. Knight, 174 Neb. 360, 118 N.W.2d 1. Two other considerations support the conclusion that the trial court did not abuse its discretion when it denied the def......
- State ex rel. Dawson County Feed Products, Inc. v. Omaha Public Power Dist.
-
Cizek v. Cizek
...by parol evidence but it must be established by evidence that is clear, satisfactory and convincing.' " In Arla Cattle Co. v. Knight, 174 Neb. 360, 118 N.W.2d 1 (1962), it is stated: " 'A safe and perhaps the most satisfactory test, in all such cases (where it is contended that an absolute ......
-
Kidder v. Wright
...there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Arla Cattle Co. v. Knight, 174 Neb. 360, 118 N.W.2d 1. The record in this case shows that there was no genuine issue as to any material fact and that the defendant was entitled......