Darner v. Dagett

• Decision Date: 16 November 1892
• Citation: 35 Neb. 695,53 N.W. 608
• Parties: DARNER v. DAGETT.
• Court: Nebraska Supreme Court

35 Neb. 695

53 N.W. 608

DARNER

v.DAGETT.

Supreme Court of Nebraska.

Nov. 16, 1892.

Syllabus by the Court.

1. It is the settled law of this state that, when an appeal is taken from the county court to the district court, the cause is to be tried in the latter court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the trial.

2. The testimony in a case should be confined to the issues formed by the pleadings.

3. In a cause tried to a jury, the admission of evidence which has no legitimate bearing on any matter put in issue by the pleadings, and which is prejudicial to the party complaining, is good ground for reversal of the judgment.

4. An assignment of error in a motion for a new trial and in a petition in error that “the court erred in admitting the evidence of witnesses for plaintiff, and excluding the evidence offered by defendant, as shown by pages 5 and 6 of the record, furnished by the official reporter, and made a part of the record by the bill of exceptions herein,” is sufficient to entitle the party to review the rulings of the trial court on the admission and rejection of testimony, recorded on said pages of the transcript of the evidence.

5. The jury, after retiring for deliberation, returned into court, announced that they were unable to agree, and requested to have a portion of the testimony of the defendant read to them by the official stenographic reporter, which was done in the presence of the attorneys for the respective parties. Held not reversible error.

6. An exception must be taken to the giving of instructions in a civil case, in order to review them in this court.

Error to district court, Dawson county; HAMER, Judge.

Action by Daniel Dagett against H. A. Darner to recover money alleged to have been fraudulently and erroneously demanded and received by defendant from plaintiff. There was judgment for plaintiff, and defendant brings error. Reversed.C. W. McNamar and G. W. Fox, for plaintiff in error.

H. M. Sinclair, for defendant in error.

NORVAL, J.

Defendant in error brought this action in the county court, alleging in his petition filed therein, in substance, that the defendant sold him a stock of hardware, for which Dagett was to pay the Chicago market prices of said classes of goods; that defendant furnished plaintiff an invoice of said goods, and falsely and fraudulently represented to plaintiff that the same was correct and based upon said market, which invoice amounted to the sum of $3,997.65, which amount plaintiff, relying on said representations, paid; that said invoice was not correct, and was not based upon the Chicago market, as agreed upon; that it was incorrectly added up, so that it was $99 more than it should have been; that the invoice price so furnished was in excess of the Chicago market to the amount of $450, and that there was a shortage of goods, the same being charged on said invoice, and paid for by plaintiff, to the amount of $400; with prayer for judgment against the defendant for $949, with interest thereon. The defendant answered by a general denial. Upon the trial the plaintiff recovered a judgment, and the defendant appealed therefrom to the district court, where the plaintiff obtained a verdict for $635, for which sum judgment was rendered.

The first error complained of relates to the ruling of the court below in sustaining plaintiff's motion to strike out all of the defendant's answer excepting the general denial. The petition in the county and district courts was the same. In the appellate court the defendant filed an answer alleging, in effect, that plaintiff representedhe was the owner of a valuable farm in Dawson county worth $2,700, free from incumbrance, excepting a mortgage for $1,300, which plaintiff proposed to trade for said stock of goods; that defendant, relying on said statements and representations, traded said stock for said farm, and took plaintiff's notes for the difference between the farm as so represented and the price of said stock as invoiced; that in truth said farm was not worth more than $1,800; that defendant, relying on said representations of the plaintiff as to the value of said farm, did not go to see it, and did not examine the mortgage records until long after said trade; that there was an additional mortgage on said farm at the time for $130.50, which plaintiff concealed from defendant, which mortgage defendant was obliged to and did pay, to his damage in the sum of $130.50. The defendant, further answering, denied each and every allegation of the petition, not by him specifically denied, and asked judgment for said sum of $130.50.

It is obvious that the court did not err in striking out of the answer the allegations therein relating to the representations of the plaintiff as to the value of the farm and the incumbrances thereon, for the reason no such issue was presented in the county court. As already stated, the answer in that court was simply a general denial. Defendant should have set up in his first answer his counterclaim for damages. Not having done so, he could not present it for the first time in the district court on the trial of his appeal. It is firmly settled in this state that a cause is to be tried in the district court upon appeal upon the same issues as in the court from which the appeal was taken, with the exception of new matter arising after the first trial. O'Leary v. Iskey, 12 Neb. 136, 10 N. W. Rep. 576;Baier v. Humpall, 16 Neb. 127, 20 N. W. Rep. 108;Railway Co. v....