Ball v. La Clair

Decision Date07 January 1885
Citation22 N.W. 118,17 Neb. 39
PartiesBALL v. LA CLAIR.
CourtNebraska Supreme Court


Error from York county.

France & Harlan, for plaintiff.

Sedgwick & Power, for defendant.


This action was brought in the court below on a guardian's bond, to compel the principal defendant to account for and pay over certain moneys alleged to have been received by her, as the guardian of the plaintiff, and his sister and assignor, and to hold the other defendants therefor as her sureties on the said bond. It is not deemed necessary to advert to the pleadings further than to say that the petition contained no allegation of proceedings in or application to the probate court after the appointment of said guardian, and the approval of her bond as such, except the following: “That on the thirteenth day of December, 1882, the probate judge of said Seward county duly granted the plaintiff permission to prosecute suit upon the above-described bond or obligation in writing.” Issue was joined, and a trial had to a jury, a verdict and judgment for the plaintiff, and the cause brought to this court on error. It appears from the bill of exceptions that upon the commencement of the examination of the first witness on the part of the plaintiff, counsel for defendants objected to the introduction of any evidence on the part of the plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection was overruled, and the witness received, to which defendants excepted. It was held by this court in the case of Curtis v. Cutler, 7 Neb. 315, that “an objection to the admission of any evidence on the ground that the petition does not state a cause of action may be taken at any time during the progress of the trial, and is not waived by answer or failure to demur,” etc. This case was cited with approval by the court in the case of Catron v. Shepherd, 8 Neb. 308;S. C. 1 N. W. REP. 204; and the said holding may be regarded as expressing the settled law of this state. Our first duty, then, is to see whether the facts stated in the petition do or not constitute a cause of action which, if admitted or proved, would authorize the district court to enter judgment in favor of the plaintiff and against the defendants.

Section 16, art. 6, Const., provides as follows: Sec. 16. County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and settlement of their accounts, in all matters relating to apprentices. * * *” The provisions of statute passed before the adoption of the present constitution, but which, not being in conflict therewith, are still in force, are as...

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