Davey v. Aevermann

• Citation: 192 N.W. 956,110 Neb. 62
• Decision Date: 27 March 1923
• Docket Number: 22893
• Parties: JOE DAVEY, APPELLEE, v. PAUL AEVERMANN ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

192 N.W. 956

110 Neb. 62

JOE DAVEY, APPELLEE, v. PAUL AEVERMANN ET AL., APPELLANTS

No. 22893

Supreme Court of Nebraska

March 27, 1923

APPEAL from the district court for Dixon county: GUY T. GRAVES JUDGE. Reversed.

REVERSED.

D. Van Donselaar and C. H. Hendrickson, for appellants.

J. J McCarthy, contra.

Heard before MORRISSE, C. J., ALDRICH and GOOD, JJ., BEGLEY and BUTTON, District Judges.

OPINION

GOOD J.

Action on negotiable promissory note by the holder against the makers thereof. Plaintiff had the verdict and judgment thereon and defendants have appealed.

Paul Aevermann, Herman Aevermann and Mrs. William Aevermann were the makers and Lou Conway the payee of the note. Plaintiff purchased the note from the payee. The petition was in the usual form. A joint answer of all the defendants alleged that the note was procured by fraud, misrepresentation and duress, but failed to allege any facts that would constitute fraud or duress as to any of the defendants except Mrs. William Aevermann. Failure of consideration was also alleged. The reply was a general denial. At the close of all the evidence, on plaintiff's motion, a verdict was directed in his favor.

1. Defendants complain that the court abused its discretion in denying them leave to file amended and substitute answers. The record fails to show any ruling of the court upon this question, and further fails to show that any request was made for leave to file any amended or substitute answers. This court will not review an alleged ruling of the district court where the record brought to this court fails to disclose that the ruling complained of was, in fact, made by the trial court.

2. Complaint is made because the trial court excluded evidence tending to establish fraud in procuring the signature of Mrs. William Aevermann to the note. If any error was committed in this respect, it was not prejudicial to any of the defendants other than Mrs. William Aevermann, because no facts constituting fraud were alleged, and the evidence offered did not tend to establish any fraud as to them; nor can the error, if any, be considered in this court as to Mrs. William Aevermann, because she did not file a separate motion for a new trial. All of the defendants joined in one motion for a new trial, and, under the rule established in this jurisdiction, if error assigned in the motion for a new trial is not good as to all, it is not good as to any of the joint movers. Hoke v. Halverstadt, 22 Neb. 421, 35 N.W. 204; Long & Smith v. Clapp, 15 Neb. 417, 19 N.W. 467; Dorsey v. McGee, 30 Neb. 657, 46 N.W. 1018; McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704; Harvey v. Harvey, 75 Neb. 557, 106 N.W. 660.

3. Complaint is made because the court took the case from the jury and directed a verdict for the plaintiff upon his motion. Where the verdict of a jury is directed in a law action, the parties against whom the verdict goes are entitled to have the most favorable construction put upon the evidence received...