Caproon v. Mitchell
| Court | Supreme Court of Nebraska |
| Writing for the Court | PER CURIAM. |
| Citation | 77 Neb. 562,110 N.W. 378 |
| Decision Date | 22 November 1906 |
| Parties | CAPROON v. MITCHELL. |
77 Neb. 562
110 N.W. 378
CAPROON
v.
MITCHELL.
Supreme Court of Nebraska.
Nov. 22, 1906.
An order overruling a motion to strike from a petition will not be reviewed on appeal, when not assigned as error in the motion for a new trial.
The plaintiff purchased a horse from the defendant, giving his note for the purchase price. The horse was lost to the plaintiff on account of a chattel mortgage made prior to his purchase, and his note had been transferred before due to a good-faith purchaser. Held, that he might recover from the defendant the amount of his note and interest.
Commissioners' Opinion. Department No. 2. Appeal from District Court, Antelope County; Boyd, Judge.
Action by Will Caproon against Hayden W. Mitchell. Judgment for plaintiff, and defendant appeals. Affirmed.
E. D. Kilbourn, for appellant.
O. A. Williams, for appellee.
DUFFIE, C.
In an action, commenced in county court, Caproon alleged that the defendant sold and delivered to him a horse for the sum of $45, then duly paid by a promissory note for that amount; that the horse at the time of the sale was mortgaged to the Edwards-Bradford Lumber Co., who thereafter took possession from the plaintiff, and that the horse was wholly lost to him. A trial resulted in favor of the plaintiff, and defendant appealed to the district court.
The plaintiff's petition in the district court was the same practically as that filed in the county court, except that it contained the additional averment that the note which plaintiff had given to defendant on the purchase of the horse “had been sold and transferred by the defendant before maturity for a valuable consideration to the Clearwater State Bank.” In the district court a motion was made to strike from the petition this additional averment for the reason that it presented an issue not raised or tried in the county court. The motion to strike was overruled, and this ruling is alleged as error. An examination of the motion for a new trial discloses that the ruling of the court on this motion was not alleged as error, or urged as a reason why a new trial should be granted. We cannot, therefore, consider this assignment. Barker v. Davies, 47 Neb. 78, 66 N. W. 11. The evidence taken upon the trial has not been preserved in a bill of exceptions, and we have nothing before us but the pleadings and the judgment entered. We can, therefore, only determine whether the judgment is supported by the pleadings. If the defendant...
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Weideman v. Peterson's Estate, No. 29200.
...on appeal, even though not assigned as error in the motion for a new trial. 2. First paragraph of syllabus in Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, and also first paragraph of syllabus of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, overruled. 3. The rule announced in Estate of Fit......
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Park Circle Motor Co. v. Willis, No. 8
...Moorehead v. Davis, 92 Ind. 303; Ellis v. Gosney's Heirs, 7 J. J. Marsh., Ky., 109; Noel v. Wheatly, 30 Miss. 181; Caproon v. Mitchell, 77 Neb. 562, 110 N.W. 378; Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150; Kingsbury v. Smith, 13 N.H. 109; Pine-Brownell Co. v. Coleman, 63 Ohi......
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Southern Gas & Gasoline Engine Co. v. Peveto
...Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; California Dry Dock Co. v. Armstrong (C. C.) 17 Fed. 216, contra; Caproon v. Mitchell, 77 Neb. 562, 110 N. W. In view of another trial, we suggest that we can see no reason why, if the evidence is such as to authorize a recovery by appellee of ......
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Weideman v. Peterson's Estate, No. 29200.
...on appeal, even though not assigned as error in the motion for a new trial. 2. First paragraph of syllabus in Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, and also first paragraph of syllabus of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, overruled. 3. The rule announced in Estate of Fit......
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Park Circle Motor Co. v. Willis, No. 8
...Moorehead v. Davis, 92 Ind. 303; Ellis v. Gosney's Heirs, 7 J. J. Marsh., Ky., 109; Noel v. Wheatly, 30 Miss. 181; Caproon v. Mitchell, 77 Neb. 562, 110 N.W. 378; Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150; Kingsbury v. Smith, 13 N.H. 109; Pine-Brownell Co. v. Coleman, 63 Ohi......
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Southern Gas & Gasoline Engine Co. v. Peveto
...Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; California Dry Dock Co. v. Armstrong (C. C.) 17 Fed. 216, contra; Caproon v. Mitchell, 77 Neb. 562, 110 N. W. In view of another trial, we suggest that we can see no reason why, if the evidence is such as to authorize a recovery by appellee of ......