Baird v. Woodard

• Citation: 61 N.W. 612,43 Neb. 310
• Parties: BAIRD ET AL. v. WOODARD.
• Decision Date: 03 January 1895
• Court: Supreme Court of Nebraska

43 Neb. 310

61 N.W. 612

BAIRD ET AL.

v.WOODARD.

Supreme Court of Nebraska.

Jan. 3, 1895.

Syllabus by the Court.

1. When a case is, in its nature, appealable, and the party seeking a review files in connection with the transcript a petition in error, he will be deemed to have elected to proceed in error, and not by appeal.

2. A case will, in general, be reviewed in this court only with reference to the theory adopted by the parties in the district court.

3. Therefore, where the action was brought upon a contract somewhat ambiguous as to its nature, but both parties in the district court concurred in construing it in a peculiar manner, neither will be permitted in this court to urge a different construction.

4. An affidavit filed with the record in this court, stating when the terms of the district court were held, is incompetent to contradict a contrary showing in the transcript of the record itself.

5. In cases where no other statutory provision controls, the awarding and taxation of costs rests in the discretion of the trial court, and will not be reviewed except for abuse of discretion.

Appeal and error from district court, Dawes county; Kinkaid, Judge.

Action by Perry E. and Mary J. Baird against Nellie Woodard to foreclose a lien on land under a contract of sale. Judgment was rendered for plaintiffs, and defendant brings appeal and error. Affirmed.Spargur & Fisher, for appellant.

C. H. Bane, D. B. Jenckes, W. W. Wood, Perry E. Baird, and J. R. Webster, for appellees.

IRVINE, C.

Perry E. Baird and Mary J. Baird were plaintiffs in the district court, and Nellie Woodard defendant. The moving party in this court is Nellie Woodard, who filed a transcript here, accompanied by a petition in error, and also by a paper entitled “Assignments in Error upon Appeal.” The case was in its nature appealable, and from the briefs it would seem to be the object of Woodard to have the case treated as brought here by both appeal and by petition in error. This course is not permissible. A party must elect which remedy to pursue, and, having filed a petition in error, she must be presumed to have selected that remedy. The case will therefore be treated as a proceeding in error. Cunningham v. Burke, 42 Neb. 645, 60 N. W. 903.

On March 12, 1892, the Bairds entered into a written contract with Woodard, providing that the Bairds agreed to lease Woodard the “east one-half of the west 44 feet of lots 15, 16, 17, in block 11, in the city of Chadron, being the east one-half of the brick building known as ‘Central Block’ ”; that the lease should begin April 1, 1892, and terminate October 1, 1893, and that in consideration thereof Woodard should pay to the Bairds $800 upon the execution of the lease,--$223.66 on or before June 1, 1892; $40 on or before July 1, 1892; $80 on or before January 1, 1893; one-half of the taxes upon Central Block for 1892, to be paid on or before May 1, 1893; $80 on or before July 1, 1893; and one-half of the premium necessary to keep the Central Block insured in the sum of $6,000 during the continuance of the lease. The contract then proceeded as follows: “Now, therefore, it is agreed that if the above covenants and agreements are kept and performed by the said party of the second part, and the said sums paid as stipulated therein, then, and upon the fulfillment of those covenants and conditions, the said party of the first part will, at the expiration of the said lease, sell and transfer to the party of the second part the said property herein leased, with the usual covenants of warranty, upon the terms and conditions as follows: Two thousand six hundred and twenty-five dollars to be paid down in cash by the said party of the second part to the said party of the first part when the sale and transfer of said property is made, to wit, upon the 1st day of October, 1893, and for the balance of the consideration for said property the said party of the second part shall at the same time, to wit, upon the 1st day of October, 1893, execute and deliver to said Perry E. Baird two notes in the sum of $500.00 each, in favor of said Perry E. Baird, and secure the same by mortgage upon the property hereinabove mentioned, to be purchased by the said party of the second part upon October 1st, 1893; one of the said notes to be due and payable on or before April 1st, 1894, and one to be due on or before October 1st, 1894, and each of the said notes to draw interest until paid at the rate of 10 per cent. per annum, interest payable semiannually,--thus making the total sum of $3,625.00 in money and notes to be paid by the said party of the second part at the time the sale and transfer of said property is made, to wit, upon the 1st day of October, 1893, which sum is in addition to the sums which are to be paid under the said lease prior to October 1st, 1893. It is further agreed that if the party of the second part should desire to procure a loan to enable her to meet the payment of the said $2,625.00 to be made at the time of the purchase of said property, to wit, October 1st, 1893, the said party of the second part shall be allowed to secure said loan to the extent of $2,000 by giving a first mortgage upon said property to be bought by her as aforesaid, providing the face value of the note or notes thus to be secured by the said mortgage shall not in the aggregate exceed the sum of $2,000; and in case the said loan of said $2,000 shall be made by the said party of the second part, and secured by mortgage as stated above, then, and upon that event, the two notes of $500 each in favor of said Perry E. Baird, which have been mentioned above, shall be secured by mortgage upon said property second to the said mortgage of $2,000, otherwise the said two notes of $500 each are to be secured by first mortgage: provided, always, that this agreement is not a present sale of said property, but is an agreement to sell at a future time, upon the fulfillment of certain conditions precedent to said sale; and the title, ownership, and possession of the said property remains in the party of the first part until the sale and transfer is made; and the possession of the party of the second part under the lease herein specified to be made is and shall be in the possession of the tenant, and not of the ownership, and the party of the first part shall have the right to take possession of said property by the terms of the said lease, as provided by law in leasing property, in the same manner as though this agreement were not made, providing that the terms of the said lease are not complied...