Bastian v. Weber
| Decision Date | 28 January 1949 |
| Docket Number | 32512. |
| Citation | 35 N.W.2d 791,150 Neb. 709 |
| Parties | BASTIAN v. WEBER et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The right of an appellee in an action to have reviewed a portion of a judgment or decree against him depends upon whether or not he has perfected a cross-appeal and has assigned error in relation thereto agreeable to the provisions of statute and the rules of this court.
2. A correct decision of the district court will not be disturbed on appeal because the court gave a wrong or insufficient reason therefor.
3. The rule has no application where it is the decision that is attacked as distinguished from the reason given for the decision.
4. To constitute an equitable estoppel, there must exist a false representation or concealment of material facts, with actual or constructive knowledge by the party against whom estoppel is claimed, without knowledge or means of knowledge by the party to or from whom made, and reliance thereon by the party to or from whom made to his prejudice.
5. In order that a binding contract may result from an offer and acceptance, it is essential that the minds of the parties meet at every point, and that nothing be left open for future arrangement.
Mark J. Ryan, of So. Sioux City, and Budd B. Bornhoft, of Wayne for appellant.
H D. Addison, of Wayne, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action by Viola Bastian, plaintiff and appellant, against William F. Weber, George Hollman, and Alice Hollman. Albert P. C. Bastian and Ernest Woehler were made additional parties defendant by answer and cross-petition of the defendant William F. Weber. William F. Weber is the only defendant who has made an appearance here, and on the issues presented no consideration of any right of the other parties is required. He will be referred to hereinafter as appellee.
The action as instituted was in ejectment. Appellant alleged that she was the owner of the legal title and entitled to the possession of the north half of Lot 14 and all of Lot 15 in Block 4, Original Town of Wayne, Wayne County, Nebraska, but that the defendant, appellee, unlawfully keeps her out of possession thereof. She prayed for judgment accordingly.
To the petition appellee filed an answer in which he denied all allegations of the petition except that he was in possession of the premises. He asserted that he was rightfully in possession.
In addition to his answer the appellee filed an equitable cross-petition. In consequence the action was tried to the court as in equity.
In the cross-petition appellee set out that he and plaintiff were married April 7, 1932, and that on August 4, 1932, the parties as husband and wife went into possession of the real estate in question as their home and they continued to use it as their home until about June 1947 when appellant abandoned the premises to appellee; that he continued to occupy the premises up to the time of the filing of the cross-petition; that during the time in question appellee made permanent improvements on the premises which included remodeling the house and making two apartments out of it, painting, repairing, and placing thereon another building all of the value of approximately $2,000.
It is further set out that on the separation of the parties a division of property was made and that it was agreed that appellee was to have possession of the premises in question as long as he desired and that by reason of the statements, promises, acts, and the agreement made by appellant she is estopped to deny defendant's right to possession of the said premises and that to deny such right would be a fraud upon him.
It is further set out that some of the rights and interests of appellee in the premises grow out of the maritial relationship previously existing between the parties.
He prayed for dismissal of the petition, a determination of his property rights in the premises, and for other equitable relief.
The reply admitted the preexisting marital relationship but otherwise was a general denial of the allegations of the cross-petition.
Following a trial findings were made and decree entered pursuant thereto. The court found that appellant was the owner of the premises by virtue of adverse possession; that a divorce decree entered in favor of appellant and against appellee in the state of Oregon on September 16, 1947, was valid and that by reason thereof no homestead rights attached in favor of appellee to the premises; that appellant was bound by her acts, conduct, and statements and by reason thereof she is estopped to deny appellee's right to occupancy and possession of said premises as long as he desires to reside therein; that appellee's right of occupancy should be decreed and that appellee should be required to pay taxes and special assessments against the premises and keep them in good condition and to keep fire and windstorm insurance thereon in an amount not less than that carried at the time of trial, until the further order of the court, but that he should not be required to pay special assessments contemplated by a foreclosure action entitled City of Wayne v. Rodgers et al.
The decree provided: 'IT IS THEREFORE CONSIDERED, ADJUDGED, ORDERED AND DECREED BY THE COURT that the petition of the plaintiff be dismissed at plaintiff's cost and that defendant's right of occupancy and possession of the premises involved, to-wit: * * *, be decreed in said defendant according to the above findings of the court.'
It is from these findings and this decree that appellant has taken her appeal.
There is but one assignment of error. It is as follows: 'The court erred in holding that the plaintiff was estopped to deny defendant's possession.'
Full examination of the record and of the briefs discloses that this assignment presents the only question for determination on this appeal.
The appellee sets forth as the issues tried and decided the following:
1. Has the defendant a homestead right in the premises involved?
2. Was plaintiff's Oregon divorce decree valid?
3. Were the defendant's homestead rights in the premises terminated by the Oregon divorce decree obtained by plaintiff on constructive service?
4. Did the trial court have a legal right to determine the property rights of these divorced parties in the premises involved?
5. Was plaintiff entitled under all the facts to possession of the premises as against the defendant who was in possession?
As to the first and third of these the finding and decree were against the appellee and therefrom he has taken no appeal or cross-appeal and has not in his brief predicated assignment of error thereon. The decree therefore in those respects has become a valid and binding adjudication.
In Meade Plumbing, Heating & Lighting Co. v. Irwin, 77 Neb. 385, 109 N.W. 391, 393, this court said: 'It follows, then, that the finding and judgment against Irwin was erroneous; but, as we find nothing in the record showing a cross-appeal, and his brief assailing the decree was not filed in due season, he is not entitled to have the decree reviewed.' The decision in this case was reversed in a later opinion appearing as 77 Neb. 391, 111 N.W. 636, but this conclusion was not disturbed. In the later opinion it was held that there was a proper cross-appeal noted in the brief which though filed out of time would be considered sufficient in view of the fact that appellant did not object to service or filing and did not move to have it stricken.
Rule 1d of the Revised Rules of the Supreme Court is as follows:
Rule 8b 4 is as follows:
Rule 8a 2(4) is as follows:
The statute which relates to assignments of error and contemplates controlling and implementing rules by this court is the following: S. 25-1919, R.S.1943.
The appellee not having complied with these essential requirements of statute and Supreme Court rules, this court cannot with propriety consider the question of whether or not the court erred in the determination of these two issues.
The appellee in an effort to avoid the force of this conclusion places reliance upon the rule that a correct decision will not be disturbed on appeal because the court gave a wrong or insufficient reason therefor.
That this is a well-recognized and a proper rule to be invoked where applicable there can be no question. See Longnecker v Longnecker, 90 Neb. 784, 134 N.W. 926, and Kanaly v. Bronson, 97...
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