Bennett v. Bennett

• Citation: 96 N.W. 994,65 Neb. 441
• Parties: LEVI BENNETT, GUARDIAN, APPELLEE, v. EZRA BENNETT, APPELLANT
• Decision Date: 07 October 1903
• Court: Supreme Court of Nebraska

96 N.W. 994

65 Neb. 441

LEVI BENNETT, GUARDIAN, APPELLEE, v. EZRA BENNETT, APPELLANT

Supreme Court of Nebraska

October 7, 1903

Affirmed.

GLANVILLE C. BARNES and ALBERT, CC. concur.

OPINION

GLANVILLE, C.

This case has once been decided by this court and the opinion written by POUND, C. is published on page 432, ante.

An extended motion for rehearing and an elaborate argument in support thereof was filed, and a rehearing allowed, and we have again carefully examined the record and considered the briefs and arguments on both sides, examining the evidence with special reference to the rule announced in Faulkner v. Sims, filed March 18, 1903, holding in effect that the re-examination of an appealed equity case should be in fact a trial de novo, to see if under such rule we should hold the judgment and finding of the lower court to be right.

Without discussing the evidence here, but referring to the former decision for a sufficient statement thereof, we will say that upon the evidence we are fully satisfied with the finding and judgment of the trial court; indeed, we are not prepared to say that we would have been satisfied with its decision had it been in favor of the defendant.

The burden of the argument made for the appellant is upon the propositions that the petition does not state a cause of action, and is also fatally defective because it does not show that the plaintiff had capacity to sue as the guardian of Emery W. Tuttle, and because it is claimed that he did not so sue as guardian. A sufficient statement of the case to show the basis of these contentions will be found in the former opinion.

A demurrer was filed to the petition upon which the case was tried on the grounds that the plaintiff had no legal capacity to sue; and that the petition does not contain facts sufficient to constitute a cause of action. This was overruled and the defendant answered. In the answer no question is raised as to plaintiff's capacity to sue, except by a denial of the allegation of his appointment as guardian, and no question is raised anywhere in the pleading as to the action being prosecuted in the name of the real party in interest. Upon the trial no objection whatever was made to the taking of testimony on account of any defects in the petition.

Much contention of the appellant, in his argument and brief, is disposed of by the following stipulation, which is a part of the record: "The parties agree that Levi Bennett was duly appointed by the county court of Boyd county, Nebraska, as guardian of Emery W. Tuttle on the 21st day of November, 1899, and that he gave the bond, required to be given as such guardian by order of the court, and duly qualified as such guardian and is still such guardian." After entering into such a stipulation it is useless for the appellant to further contend that the plaintiff was not in fact such guardian, or to attack his appointment collaterally, simply because the petition in this action, which is not one for the appointment of a guardian, does not state grounds for such appointment. The stipulation admits that he was duly appointed by the proper court, duly qualified and was still such guardian. In the condition of the record, and after such a stipulation as this, the plaintiff would be entitled to amend his petition, if necessary, to make it conform to these stipulated facts. It is therefore not worth while to give time or space to any more full discussion of this contention than is found in the former opinion.

Another contention of the appellant is, that because to authorize the county court to appoint a guardian for Emery W. Tuttle it must have been made to appear in that court that he was mentally incompetent to have the charge of, and management of, his property; and because this action is brought by the guardian so appointed, therefore the plaintiff must allege and prove that Emery W. Tuttle at the time of making the conveyance in question was so mentally incompetent to have the charge and management of his property as to render the deed in question absolutely void, because of the total want of capacity to make the deed at the time it was made. In this we think he is wrong; the question of such capacity at the time of the hearing was in issue in the guardianship case and was so decided by the court that the plaintiff was duly appointed guardian, and is res judicata. The plaintiff then had a right to bring this action to set aside the conveyance in question without allegation or proof that, at the time it was made, his ward was totally without capacity to make it, if upon any equitable grounds the ward himself, or anyone...