Bishop v. Stevens

• Decision Date: 06 May 1891
• Citation: 31 Neb. 786,48 N.W. 827
• Parties: BISHOP v. STEVENS ET AL.
• Court: Nebraska Supreme Court

31 Neb. 786

48 N.W. 827

BISHOP

v.STEVENS ET AL.¹

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

1. When an appeal is taken from the county court to the district court, the case is to be tried in the appellate court upon the issues that were presented in the court from which the appeal was taken.

2. All new matter constituting an entire or partial defense to a cause of action must be concisely and distinctly set up in the answer, and is not admissible under a general denial.

Error to district court, Douglas county; DOANE, Judge.Scott & Scott, for plaintiff in error.

Bradley & De Lamatre, for defendants in error.

PER CURIAM.

This action was brought in the county court of Douglas county, by the defendants in error against the plaintiff in error, to recover for services alleged to have been rendered to the plaintiff in error, as real-estate agents, in effecting sales of a large amount of real estate, descriptions of which are set out in the petition. The answer of the defendant is a general denial. On the trial of the cause in the county court judgment was rendered in favor of the defendants in error. The plaintiff in error then appealed to the district court, where substantially the same petition and the same answer were filed as in the county court. Aterwards the attorneys for the plaintiff in error filed an amended answer in which, after denying certain matters stated in the petition, they admitted the service rendered by the defendants in error, but alleged that they were to take their pay in wild land at a certain price per acre. This answer was stricken from the files because it did not set up the same defense as was presented in the county court. The new matter set up in the answer of the plaintiff in error is substantially as follows: “Defendant denies that he is indebted to plaintiffs in the sums set forth in their petition, or in any sum or sums whatever, but alleges that, when the various lands in plaintiffs' petition described were given to him to trade as aforesaid, it was agreed by the defendant that plaintiffs, for their services in trading said lands, should have, by assignment of contract, so much of the lands of defendant remaining untraded as should, at their trade valuation, equal in value 5 per cent. of the first thousand, and 2 1/2 per cent. of the remainder, of the trade valuation of the land so traded; the said plaintiffs to select said amount of land from such as might remain untraded as aforesaid. Defendant has always been ready and willing, and now is ready and willing, to transfer, as aforesaid, to plaintiffs the amount of land to which said plaintiffs are entitled, for the lands by them traded, at any time when same shall be selected by the said plaintiffs.”

In O'Leary v. Iskey, 12 Neb. 136, 10 N. W. Rep. 576, it was held that, when an appeal was taken from the county court to the district court, the case was to be tried in the appellate court upon the issues that were presented in the court from which the appeal was taken, with the exception that matter arising after the trial, such as payment, compromise, release, etc., may be pleaded as a defense to the action. It is said, (page 137, 12 Neb., and page 576, 10 N. W. Rep.:) “A set-off arising before the commencement of the action, to be available in the appellate court, must have been presented to the court below for its adjudication. The reason is, an appeal, when a bond is given as in this case, has the effect to vacate the judgment of the court below, and presents the same issue to the appellate court for its determination as was presented in the court below. If new issues can be raised in the appellate court, it is not a trial of the same cause,--not, in fact, an appeal. An appeal brings up the case presented in the court below for a new trial, and the issues cannot be changed in the appellate court except by consent, or in the manner above suggested. Cases are to be tried on their merits; then, if either party is dissatisfied with the judgment, he may appeal.” This case was approved in Sawyer v. Brown, 17 Neb. 171, 22 N. W....