Beckwith v. Dierks Lumber & Coal Co.

Decision Date20 December 1905
Citation75 Neb. 349,106 N.W. 442
CourtNebraska Supreme Court


Syllabus by the Court.

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 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.


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 plaintiff. Again, no exception was taken to the action of the trial court in directing a verdict for the defendant, and the conclusive presumption arises that plaintiff was satisfied with this...

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