Beckwith v. Dierks Lumber & Coal Co.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation75 Neb. 349,106 N.W. 442
PartiesBECKWITH v. DIERKS LUMBER & COAL CO.
Decision Date20 December 1905

75 Neb. 349
106 N.W. 442

BECKWITH
v.
DIERKS LUMBER & COAL CO.

Supreme Court of Nebraska.

Dec. 20, 1905.



Syllabus by the Court.

[106 N.W. 442]

A judgment will not be reversed for error of law occurring at the trial, unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling the motion for a new trial. James v. Higginbotham, 82 N. W. 625, 60 Neb. 203.

A party who fails to object to an instruction is conclusively presumed to be satisfied with it as given.

One claiming title to personal property through a sale under attachment proceedings in

[106 N.W. 443]

justice court must show legal notice to the defendants of the pendency of the action and that the property claimed was attached therein.


Commissioners' Opinion. Department No. 2. Error to District Court, Custer County; Hostetter, Judge.

Action by Joseph Beckwith against the Dierks Lumber & Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. W. Beal and H. J. S. Linn, for plaintiff in error.

J. S. Kirkpatrick, C. H. Holcomb, G. E. Hager, and Milton Schwind, for defendant in error.


DUFFIE, C.

The Dierks Lumber & Coal Company is the owner of a lot and building in the city of Broken Bow, Neb. A tenant erected a shed addition to this building and put a counter and some shelving therein. He afterwards sold all his right in the premises to Warner Bros. Robinson, another tenant, occupied the building until some time in May, 1901, when he vacated, and the Dierks Company then rented the same to one Dischous. In the meantime Beekwith, the plaintiff in error, commenced an action aided by attachment in justice court against Arthur and Joseph Warner and A. Wallace, obtained judgment, and had the shed, counter, and shelving sold, himself becoming the purchaser. The Dierks Company refusing to recognize his ownership, this action was brought for the value of the property and for rents. After the plaintiff had introduced his evidence the court directed a verdict for the defendant, overruled a motion for a new trial, and entered judgment for costs against the plaintiff.

The judgment must be affirmed for several reasons. The petition fails to allege error in overruling the motion for a new trial. If the court did not err in overruling the plaintiff's motion for a new trial, it is evident that the judgment appealed from is the only one that could have been entered, and errors of law occurring at the trial, if any, were not prejudicial to the...

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5 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...(Ariz.), 85 P. 1070; Lemon v. Ward, 3 Ariz., 219; James v. Higginbotham, 60 N.W. 203; 82 N.W. 625; Beckwith v. Dierks L. Co. (Neb.), 106 N.W. 442; Doorley v. Buford (Okla.), 49 P. 936.) Where the appeal is taken more than one year after the rendition of the judgment, and the motion for new ......
  • Schickedantz v. Rincker
    • United States
    • Supreme Court of Nebraska
    • 20 Diciembre 1905
    ...of January, which plaintiff refused. A demurrer to this answer was sustained by the district court, and, defendant electing to stand [106 N.W. 442]upon his demurrer, judgment was rendered against him for $75, as rent for the month of January, 1903, from which judgment defendant prosecutes e......
  • Warner v. Sohn, No. 15,851.
    • United States
    • Supreme Court of Nebraska
    • 14 Diciembre 1909
    ...verdict for the defendant, and the conclusive presumption arises that plaintiff was satisfied with this instruction.” Beckwith v. Dierks, 75 Neb. 349, 106 N. W. 442. Assignments of error predicated on the holding of the court in directing a verdict for defendants will therefore be disregard......
  • Barnum v. Chamberlain Land & Loan Co., No. 3501.
    • United States
    • Supreme Court of South Dakota
    • 1 Junio 1914
    ...of such contention, cites the following cases: Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1062;Beckwith v. Dierks Lumber & Coal Co., 75 Neb. 349, 106 N. W. 442;Warner v. Sohn, 85 Neb. 571, 123 N. W. 1054;De Lendrecie v. Peck, 1 N. D. 422, 48 N. W. 342;McNab v. Northern P. R. Co., 12 N......
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5 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...(Ariz.), 85 P. 1070; Lemon v. Ward, 3 Ariz., 219; James v. Higginbotham, 60 N.W. 203; 82 N.W. 625; Beckwith v. Dierks L. Co. (Neb.), 106 N.W. 442; Doorley v. Buford (Okla.), 49 P. 936.) Where the appeal is taken more than one year after the rendition of the judgment, and the motion for new ......
  • Schickedantz v. Rincker
    • United States
    • Supreme Court of Nebraska
    • 20 Diciembre 1905
    ...of January, which plaintiff refused. A demurrer to this answer was sustained by the district court, and, defendant electing to stand [106 N.W. 442]upon his demurrer, judgment was rendered against him for $75, as rent for the month of January, 1903, from which judgment defendant prosecutes e......
  • Warner v. Sohn, No. 15,851.
    • United States
    • Supreme Court of Nebraska
    • 14 Diciembre 1909
    ...verdict for the defendant, and the conclusive presumption arises that plaintiff was satisfied with this instruction.” Beckwith v. Dierks, 75 Neb. 349, 106 N. W. 442. Assignments of error predicated on the holding of the court in directing a verdict for defendants will therefore be disregard......
  • Bailey v. Security Ins. Co.
    • United States
    • Supreme Court of Oregon
    • 15 Marzo 1921
    ...Land & Loan Co., supra; Peterson v. Siglinger, 3 S. D. 255, [100 Or. 170] 52 N.W. 1062; Beckwith v. Dierks Lumber, etc., Co., 75 Neb. 349, 106 N.W. 442; Warner v. Sohn, 85 Neb. 571, 123 N.W. 1054; De Lendrecie v. Peck, 1 N. D. 422, 48 N.W. 342; McNab v. Northern P. R. Co., 12 N.D. 568, ......
  • Request a trial to view additional results

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