Bushnell v. Thompson

• Decision Date: 30 June 1937
• Docket Number: 30047.
• Citation: 274 N.W. 453,133 Neb. 115
• Parties: BUSHNELL v. THOMPSON ET AL.
• Court: Nebraska Supreme Court

274 N.W. 453

133 Neb. 115

BUSHNELL v. THOMPSON ET AL.

No. 30047.

Supreme Court of Nebraska.

June 30, 1937

Syllabus by the Court.

Failure or refusal of plaintiff to comply with a proper order of the court with respect to amendment of petition may be valid ground for dismissal of the action.

Appeal from District Court, Sioux County; Meyer, Judge.

Action by Esther N. Bushnell against Addie Thompson and another impleaded with Burt Furman. From a judgment of dismissal plaintiff appeals.

Affirmed.

Charles A. Fisher, of Chadron, and W. M. Iodence, for appellant.

Boyd & Metz, of Alliance, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOOD Justice.

Plaintiff brought this action in ejectment alleging a legal estate in and right to possession of the following described realty: " A strip of land about 30 rods in width, north and south, and 100 rods in length, east and west, which is situated along the north side, and immediately adjoining and abutting upon the north side of the section line between sections 1 and 12 in township 28 north of range 50 in said county, which tract comprises a portion of the south half of the southeast quarter and the southeast quarter of the southwest quarter of said section 1."

Defendants Addie Thompson and Eugene E. Thompson in their answer alleged as defenses that the land claimed by plaintiff was not in section 1, but was a part of section 12, and that defendants had been in possession thereof, under claim of ownership, for more than ten years, and pleaded the statute of limitations. Plaintiff's reply was in the nature of a general denial. A trial of the issues resulted in the following verdict: " We, the jury duly impaneled and sworn in the above entitled cause, do find for the defendant Burt Furman. We also find that the plaintiff has a legal estate in and is entitled to the possession of the tract of land described in her petition and also find for the plaintiff as to her claim for damages as against the defendants Addie Thompson and Eugene E. Thompson and assess the amount of her recovery therefor at $288." It may be observed that the court directed a verdict in favor of defendant Furman.

Motions for a new trial were filed by Addie Thompson and Eugene E. Thompson, and later the court sustained these motions, and, realizing that plaintiff's description of the land claimed by her was so indefinite that no one could tell what particular tract of land was claimed, gave leave to plaintiff to amend her petition, to accurately describe the tract of land claimed by her, and ordered that, unless she did so amend her petition within 60 days, the action would be dismissed. After the lapse of more than 60 days, plaintiff not having amended her petition but having stated in open court that she elected to stand upon her petition, the court entered judgment of dismissal. Plaintiff has appealed.

It is apparent that plaintiff has not in her petition described any tract of land with particularity, so that it could be ascertained. The most that may be said for it is that the south boundary of the tract is the south line of section 1, in township 28, north of range 50 west, but, in truth and in fact, if the range is 50 west, it is not in the county in which trial was had, but would be in Box Butte county, to the...