Barton v. Erickson

• Decision Date: 20 March 1883
• Citation: 15 N.W. 206,14 Neb. 164
• Parties: GUY C. BARTON, PLAINTIFF IN ERROR, v. EMIL E. ERICKSON ET AL., DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 206

14 Neb. 164

GUY C. BARTON, PLAINTIFF IN ERROR, v. EMIL E. ERICKSON ET AL., DEFENDANT IN ERROR

Supreme Court of Nebraska

March 20, 1883

ERROR to the district court for Lincoln county. Tried below before GASLIN, J.

AFFIRMED.

Hinman & Neville, for plaintiff in error, cited: Tyler on Ejectment 75. 2 Washburn, 194-6. 2 Story's Equity, 478. Cleage v. Hydin, 6 Heisk, 73. Morton v. Green, 2 Neb. 45.

George E. Pritchett, for defendant in error, cited: Hightown v Williams, 38 Ga. 597. Dae v. Johnson, 3 Ill 522. Conger v. Converse, 9 Iowa 554. Brooks v. Chaplin, 2 Vt. 381.

OPINION

MAXWELL, J.

This is an action of ejectment brought by the defendants in error as trustees against the plaintiff to recover the possession of lots 7 and 8 in block 115 in the town of North Platte. On the trial of the cause in the court below a verdict was returned in favor of the defendants, upon which judgment was rendered. The plaintiff brings the cause into this court by petition in error.

While the jury were being impaneled, Alfred Samuelson, August Johnson, and Theodore Lowe, called as jurors, while being examined on the voir dire, stated in substance that they were members of the Lutheran church, and were thereupon challenged by the attorneys for the plaintiff in error as not being unbiased persons. The court overruled the challenge, and this is assigned for error.

None of the persons thus challenged appear to have belonged to the organization at North Platte. But one of them was asked that question, and he answered that he lived at a considerable distance from the town, and had nothing to do with the organization there--in other words, the jurors challenged were members of the denomination known as Lutheran, but were not members of this particular organization. An elector of a county or city is competent to sit as a juror in any case brought against the county or city, his interest being considered too remote to affect his judgment. This being so, why should a juror, otherwise acceptable, be rejected simply because he is a member of the same denomination as one of the parties to the suit? No fair-minded person would permit such a consideration to affect his judgment in the slightest degree. The challenges were properly overruled.

The defendants in error claim title under the following deed:

"This indenture made this seventh day of December, A. D. 1868, between the Union Pacific Railroad Company, by its agent and trustee, of the first part, and H. W. Kuhns, pastor Lutheran Church of Omaha, of the county of Douglas and state of Nebraska, of the second part.

"Witnesseth: That in consideration of the sum of one dollar in hand paid by the said H. W. Kuhns, the receipt whereof is hereby acknowledged, the said party of the first part has quit-claimed, remised, and released, and does hereby quit-claim, remise, and release unto the said party of the second part all their right, title, and interest in and to the following described premises, situated in the county of Lincoln and state of Nebraska, and described as follows, to-wit: Lots No. seven and eight (7, 8,) in block No. one hundred and fifteen (115) town of North Platte. Donated in trust for use of the Lutheran Church, with all and singular the hereditaments and appurtenances thereunto belonging, to have and to hold the above described premises to the said party of the second part and to their heirs and assigns forever.

"In witness whereof the said party of the first part has, through its agent and trustee, as aforesaid, executed and delivered this instrument the day and year above written.

"GRENVILLE M. DODGE,

"Agent and Trustee.

"In presence of

"J. E. HOUSE.

"STATE OF NEBRASKA, "COUNTY OF DOUGLAS,

"On this seventh day of December, A.D. 1868, before me, notary public within and for said county, personally appeared the above named Grenville M. Dodge, agent and trustee of the Union Pacific Railroad Company, to me known to be the identical person who executed the foregoing instrument, and acknowledged the same to be his voluntary act and deed and the voluntary act and deed of the Union Pacific Railroad Company.

"OSCAR F. DAVIS,

"Notary Public."

They also introduced proof tending to show the organization of the society at North Platte, of which the defendants were trustees, and a deed from Kuhns to them as such trustees for the lots in question. There was other testimony in the case, to which it is unnecessary to refer.

The plaintiff in error claims to derive title to the lots in question from the Union Pacific Railroad as follows: In the year 1868, one Charles E. Buchanan was station agent at North Platte, and appears to have acted as land agent also. This man testifies that the lots in question were given to the school district upon condition that it would build thereon, which it did. That is, that the witness set apart those lots for school purposes. He also states that a deed for the same was made. In this he is evidently mistaken, as no such deed was offered in evidence. The powers of this agent are stated by J. E. House, his immediate superior, as follows:

Q. Any contracts that these station agents made had to be afterwards ratified by you or General Dodge?

A. Yes.

Q. Describe the manner in which a station agent would make a contract with a man, sell him a lot in North Platte or any other towns on the road?

A. They were furnished a price list, a map of the town showing the lots, and were furnished application slips upon which the numbers of the lots and prices were all in blank; they were also furnished contracts. The contracts were made in duplicate, and sent to the office with the first installment, whatever it was, for the contracts to be ratified and returned for signatures.

Q. Was the contract sent in before the application slips?

A. They all came together.

Q. Then if the proposed contract was satisfactory?

A. It was signed by the parties at...