Foster v. DeVinney

• Citation: 28 Neb. 416,44 N.W. 479
• Parties: FOSTER ET AL. v. DEVINNEY ET AL.
• Decision Date: 07 January 1890
• Court: Supreme Court of Nebraska

28 Neb. 416

44 N.W. 479

FOSTER ET AL.

v.DEVINNEY ET AL.

Supreme Court of Nebraska.

Jan. 7, 1890.

Syllabus by the Court.

1. “In all actions tried by the court, there must be a general finding, and, when requested by one of the parties, a special finding, and, if the finding be vague, uncertain, or indefinite, it will not sustain the judgment.” Sprick v. Washington Co., 3 Neb. 253. 2. Issues properly presented to a trial court must be decided either by finding by the court or verdict of the jury, before a judgment can be rendered.

Error from district court, Johnson county; APPELGET, Judge.

S. P. Davidson, for plaintiffs in error.

C. K. Chamberlain, Daniel F. Osgood, A. M. Appelget, and L. C. Chapman, for defendants in error.

REESE, C. J.

Defendants in error each filed a separate petition before the city council of the city of Tecumseh, for a license to sell malt, spirituous, and vinous liquors in said city. Each application had 32 names attached. These petitions were filed on the 16th day of April, 1889, and on the 7th day of May remonstrances were filed in each case, in which the following among other objections to the issuing of the license were presented: That the applicant had violated the laws and ordinances governing the sale of liquor in said city during the year last past, by selling intoxicating liquors to habitual drunkards, and to minors, and by allowing treating in his place of business; that the petitions were not signed by the requisite number of freeholders of the ward where the saloons were proposed to be kept; that some of the signers (naming them) were not freeholders; that the names of others were signed without their authority, and that they wished to withdraw them therefrom. By agreement, the applications were so far consolidated as to allow of both being heard upon the same evidence, and decided at the same time, by the city council. A license was granted in each case, when the remonstrants appealed to the district court, where the cause was heard, and the decision of the city council was affirmed. The cases are now brought to this court by remonstrants, by proceedings in error.

It is objected by Frost that no appeal was taken in his case, for the reason that but one appeal was perfected, and, as there was no agreement in the district court that one case should abide the result of the other, the cases were not consolidated for any purpose save the hearing before the council. This objection, had it been made in the district court, would perhaps have been meritorious, but as the cases have been treated by all parties as one, since before the hearing by the council, the objection cannot now avail. It is conceded in this court that, as the name of E. T. Curren was signed to the application without her consent or authority, it should not be considered. This leaves 30 names, the statutory number; there being more than 60 freeholders in the ward. See section 25, c. 50, Comp. St. It is contended by the plaintiffs in error that the finding of the district court is insufficient to sustain the judgment. So far as this part of the journal entry of that court is concerned, the finding was as follows: “* * * And, after arguments of counsel, the court finds that the action of the city council should be affirmed, and the action of said city council in granting license to said applicant held valid,” etc. This objection was presented to the district court by the motion for a new trial, in the sixth clause thereof, by the following language: “(6) Because there is no legal and sufficient finding of fact by the court;” and it is insisted upon here. By section 428 of the Civil Code, a “judgment” is defined to be a final determination of the rights of the parties to an action. By section 297 it is provided that, “upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing the conclusions of fact found separately from the conclusions of...