Citizens State Bank v. Pence

• Decision Date: 24 January 1900
• Docket Number: 9,133
• Citation: 81 N.W. 623,59 Neb. 579
• Parties: CITIZENS STATE BANK v. J. A. PENCE ET AL
• Court: Nebraska Supreme Court

81 N.W. 623

59 Neb. 579

CITIZENS STATE BANK v. J. A. PENCE ET AL

No. 9,133

Supreme Court of Nebraska

January 24, 1900

ERROR from the district court of Greeley county. Tried below before KENDALL, J. Affirmed.

AFFIRMED.

J. R Hanna, for plaintiff in error.

Ganoe & Howard, contra.

OPINION

NORVAL, C. J.

Mat S. Good was charged by the Citizens State Bank of Greeley Center with having disposed of certain chattels which he had mortgaged to the bank, and then absconded from the state. Subsequently Good was located in Faulkner county, in the state of Arkansas, and the bank procured to be issued by the executive of this state requisition papers for the arrest and return to Nebraska of the said Good to answer the crime of disposing of mortgaged chattels, and procured one James P Paxton, a resident of Greeley county, to be appointed, and named in the requisition papers as the special agent of the state to bring Good back from Arkansas. Pursuant to such appointment, Paxton went to Conway, Faulkner county, in April, 1891, and, in the attempt to arrest Good by the deputy sheriff of that county, Good shot and killed Paxton. The sheriff of Faulkner county telegraphed the facts to the bank and inquired what should be done with the remains of Paxton; and received in answer thereto a telegram stating: "Forward the remains here immediately. Write full details. Is Good arrested?" Thereupon the sheriff of Faulkner county went to J. A. Pence and J. D. Slade, undertakers at Conway, and delivered them said telegram from the bank, and procured them to take charge of the remains and prepare the same for shipment to said bank. The express company refused to receive the remains of Paxton unless placed in a metallic casket, so such a casket was furnished by the undertakers, and the body, after being properly prepared, was placed therein and shipped by the undertakers by express to the Citizens State Bank of Greeley Center, which paid the express charges thereon and received the remains on their arrival at that place. The bill of the undertakers, amounting to $ 128.60, the bank refused to pay; and this action to recover the same was instituted in the county court, where the bank recovered judgment. On appeal to the district court by the plaintiffs they obtained judgment for the full amount of their claim, with interest. The bank has brought the cause here for review.

In the district court the defendant interposed a motion to strike from the petition certain paragraphs therein, for the reason they set forth a new or separate and different cause of action from the one pleaded by the plaintiffs in the county court, which motion was sustained. Plaintiffs subsequently filed an amended petition, which was likewise assailed by a motion to strike out certain allegations contained therein which motion was denied; and the first complaint made in this court relates to said ruling. The cause of action stated in the amended petition was identical with that declared upon in the county court, namely, on an account for a casket, one suit of clothes, a suit of underwear and for services in embalming the body of Paxton. The facts were pleaded with more particularity in the district court than in the court from which the appeal was prosecuted; nevertheless, the identity of the cause of action was fully preserved. The plaintiffs...