Childerson v. Childerson

• Citation: 66 N.W. 281,47 Neb. 162
• Decision Date: 18 February 1896
• Docket Number: 6154
• Parties: JOHN W. CHILDERSON v. MARY A. CHILDERSON
• Court: Supreme Court of Nebraska

66 N.W. 281

47 Neb. 162

JOHN W. CHILDERSON v. MARY A. CHILDERSON

No. 6154

Supreme Court of Nebraska

February 18, 1896

ERROR from the district court of Clay county. Tried below before HASTINGS, J.

AFFIRMED.

Thomas H. Matters, for plaintiff in error.

Leslie G. Hurd, contra.

OPINION

HARRISON, J.

The plaintiff herein alleges the relationship of husband and wife as existing between himself and the defendant; that, as the outcome of difficulties and dissensions during the course of their married life, the wife left the home and abandoned the plaintiff, and he, as a consideration for her return to him and the family relations and duties and continuance thereof and therein, did, during the year of 1889 convey by deed to the wife certain lands in Clay county Nebraska; that on or about the 8th day of December, 1891, the defendant violated her promise and contract and again departed from the home of the parties, and abandoned the plaintiff, by which act he became entitled to the property conveyed to her. Hence he prays a decree against her, requiring its reconveyance to him. The wife, in answer to the pleas of the plaintiff herein, admits the assumption of the marriage relation by and between plaintiff and herself, and that after some years of married life disagreements and contentions arose and prevailed, and finally to such an extent that she for-sook the home and her marital rights, and also the duties, or was forced so to do, but she affirmatively states that at the time of the marriage to plaintiff she was the owner of certain property, both personal and real, the proceeds of which the plaintiff reduced to his possession and used in such manner and for such purposes as he desired, and the lands which the plaintiff conveyed to her were so conveyed to her in payment and to reimburse her for the appropriation of the proceeds of her separate property. To this answer of defendant there was filed a reply which in effect denied the affirmative matter contained therein or avoided its force, and reasserted the substantive matters set forth in the petition in so far as it related to the consideration for the conveyance of the lands from plaintiff to defendant. At the close of the trial of the issues the court rendered a decree favorable to defendant, by which the action was dismissed and the costs taxed against the plaintiff, and the case is presented here for review.

The record here is entitled as in an appeal, but a petition in error was filed and a summons in error was caused to be issued. Under such circumstances it will be presumed that the plaintiff has elected to present the case to this court by error proceedings. (Woodard v. Baird, 43 Neb. 310, 61 N.W. 612; Monroe v. Reid, 46 Neb. 316 64 N.W. 983; Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903.) If this is treated as an error proceeding, then the errors assigned in the petition cannot be reviewed, for the...