Donohue v. Hendrix
| Decision Date | 12 September 1882 |
| Citation | 13 Neb. 255,13 N.W. 215 |
| Parties | DONOHUE v. HENDRIX. |
| Court | Nebraska Supreme Court |
Motion to strike petition in error from the files.Clarkson & Hunt, for the motion.
Mr. Redick, contra.
This is a motion to strike a petition in error from the files-- First, because there is no bill of exceptions; second, because there was no motion for a new trial in the court below; third, because the plaintiff in error, defendant below, did not elect to stand upon his demurrer to the petition. Are any or all of the causes sufficient to authorize the court in striking the petition in error from the files? A bill of exceptions is necessary only in those cases where it is desired to bring into the record evidence or other matter which by law is not required to be entered of record. If, therefore, there is error appearing in the record proper, no bill of exceptions is necessary.
A motion for a new trial is necessary only in cases where a trial has been had. If the court has merely construed the pleadings, or some of them, as in sustaining or overruling a demurrer to a petition, answer, or reply, no motion for a new trial is necessary, because there has been no trial in the sense in which that word has been used in the statutes. But where evidence has been offered or introduced in order that the rulings of the court thereon may be reviewed on error, there must be a motion for a new trial, in which the specific grounds of error are set forth. Swanson v. Swanson, 12 Neb. 224; [S. C. 10 N. W. REP. 713.]
If a good cause of action is defectively stated in the petition, and a demurrer thereto is overruled, the party answering, in order to avail himself of the ruling thereon, must rest on his demurrer; and if he reply, he thereby waives this exception. This applies only to defects in the form of pleading. But if the facts stated in the petition do not constitute a cause of action, filing an answer by the defendant is not a waiver of such defect. Farrar v. Triplett, 7 Neb. 240.
The grounds assigned in the motion are not sufficient to justify the court in striking the petition from the files, and the motion is overruled.
To continue reading
Request your trial
-
Hans v. State
...the ruling on a plea in abatement could be reviewed without having been assigned as error in the motion for a new trial. (See O'Donohue v. Hendrix, 13 Neb. 255; Graves Scoville, 17 Neb. 593, 24 N.W. 222.) In Ford v. State, 46 Neb. 390, 64 N.W. 1082, it was ruled that alleged errors in overr......
-
Hans v. State
...ruling on a plea in abatement could be reviewed without having been assigned as error in the motion for a new trial. See O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. 215;Graves v. Scoville, 17 Neb. 593, 24 N. W. 222. In Ford v. State, 46 Neb. 390, 64 N. W. 1082, it was ruled that alleged err......
-
Horton v. State ex rel. Hayden
...unnecessary, but is, as was said in one case, an unintelligible request. Leach v. Sutphen, 11 Neb. 529, 10 N. W. 409;O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. 255;Farris v. State, 46 Neb. 857, 65 N. W. 890;Corwin v. Thomas, 83 Ind. 110;Foley v. Foley, 120 Cal. 33, 52 Pac. 122. The case of......
-
Parker v. Christensen, 39372
...The inquiry of this court in the action at law is limited to the sufficiency of the pleadings to support the judgment. O'Donohue v. Hendrix, 13 Neb. 255, 13 N.W. 215; Farris v. State, 46 Neb. 857, 65 N.W. 890; Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522; Walker v. Burtless, 82 Neb. 214, ......