Fox v. Graves
| Court | Supreme Court of Nebraska |
| Writing for the Court | NORVAL |
| Citation | 46 Neb. 812,65 N.W. 887 |
| Decision Date | 21 January 1896 |
| Parties | FOX ET AL. v. GRAVES. |
46 Neb. 812
65 N.W. 887
FOX ET AL.
v.
GRAVES.
Supreme Court of Nebraska.
Jan. 21, 1896.
1. Although the prayer for relief is a part of the petition, it is no portion of the statement of facts required to constitute a cause of action. The entire omission of any demand for judgment would not subject the petition to general demurrer.
2. A verdict must not exceed the sum prayed for in the petition. If it does, objection on that ground should be raised in the motion for a new trial, or it will be deemed waived.
3. Where a petition contains inconsistent counts, the proper motion is to strike out all but one, or require the plaintiff to elect upon which cause of action he will proceed to trial.
Error to district court, Madison county; Powers, Judge.
Action by George Graves against Fox, Canfield & Co. Judgment for plaintiff. Defendants bring error. Affirmed.
[65 N.W. 887]
Brome, Burnett & Jones, for plaintiffs in error.
Allen, Reed & Ellis, for defendant in error.
NORVAL, J.
Defendant in error filed his petition in the district court, alleging: “That Fox, Canfield & Co., on the 1st day of May, 1882, and at the times of the purchases and transactions hereinafter stated, was a partnership firm, doing business in the state of Nebraska, in Stanton county and adjoining counties; that the sole individual members of said partnership were and are the defendants George Fox. S. S. Canfield, and H. C. Brome; that the defendants, as such partners, in the partnership name, on or about the months of May, June, August, September, October, November, and December of the year 1882, and about the month of November, 1883, bought of plaintiff, and had delivered to them by plaintiff, at their request, lumber, bridge, and building material of the reasonable value of $1,501.38, which defendants agreed to pay on delivery, and on or about the 27th day of September, 1884, plaintiff paid freight for defendants, at their request, the sum of $132.50, no part of which has been paid except the sum of $1,026.92; that there is due plaintiff and remaining unpaid upon said account the sum of $606.92 principal and $125.95 interest; that a copy of the account for said material sold and freight paid, with all credits thereon, are hereto attached, marked ‘Exhibit A,’ and made part of this petition; wherefore plaintiff demands judgment against defendants for the sum of $734.52, and with interest thereon from July 20, 1885, less amount of certain freight bills, with costs.” Count 2: “Plaintiff, for further cause of action against the defendants, states that Fox, Canfield & Co. are a partnership firm carrying on business in Stanton county and adjoining counties in the state of Nebraska, composed of George Fox, S. S. Canfield, and H. C. Brome; that on or about the 1st day of July, 1885, the matters in controversy between plaintiff and defendants, being the amount set forth in Exhibit A, hereto attached, were, by agreement by plaintiff and defendants, referred to Knox Tipple and J. B. Walker as arbitrators, with authority in said arbitrators to consider, ascertain, and settle all matters...
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Weideman v. Peterson's Estate, No. 29200.
...“A motion may properly be overruled which cannot be allowed in substantially the same terms as requested.” Fox, Canfield & Co. v. Graves, 46 Neb. 812, 65 N. W. 887. 5. “A case must be tried in the district court upon appeal upon the issues tried in the lower court. This does not mean that n......
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Ames v. Parrott
...by the pleadings; and error in the ruling on the motion, which alone was assigned, had been waived by going to trial. In Fox v. Graves, 46 Neb. 812, 65 N. W. 887, it was held that an objection that the verdict and judgment exceeded the amount prayed for in the petition must be raised by mot......
-
Ames v. Parrott, 9,489
...by the pleadings; and error in the ruling on the motion, which alone was assigned, had been waived by going to trial. In Fox v. Graves, 46 Neb. 812, 65 N.W. 887, it was held that an objection that the verdict and judgment exceeded the amount prayed in the petition must be raised by motion f......
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Chi., B. & Q. R. Co. v. Martelle
...his opinion. With reference to the quære propounded in the second paragraph of his opinion, I would say that in the case of Fox v. Graves, 46 Neb. 812, 65 N. W. 887, this court has said: “Although the prayer for relief is a part of the petition, it is no portion of the statement of facts re......
-
Weideman v. Peterson's Estate, No. 29200.
...“A motion may properly be overruled which cannot be allowed in substantially the same terms as requested.” Fox, Canfield & Co. v. Graves, 46 Neb. 812, 65 N. W. 887. 5. “A case must be tried in the district court upon appeal upon the issues tried in the lower court. This does not mean that n......
-
Ames v. Parrott
...by the pleadings; and error in the ruling on the motion, which alone was assigned, had been waived by going to trial. In Fox v. Graves, 46 Neb. 812, 65 N. W. 887, it was held that an objection that the verdict and judgment exceeded the amount prayed for in the petition must be raised by mot......
-
Ames v. Parrott, 9,489
...by the pleadings; and error in the ruling on the motion, which alone was assigned, had been waived by going to trial. In Fox v. Graves, 46 Neb. 812, 65 N.W. 887, it was held that an objection that the verdict and judgment exceeded the amount prayed in the petition must be raised by motion f......
-
Chi., B. & Q. R. Co. v. Martelle
...his opinion. With reference to the quære propounded in the second paragraph of his opinion, I would say that in the case of Fox v. Graves, 46 Neb. 812, 65 N. W. 887, this court has said: “Although the prayer for relief is a part of the petition, it is no portion of the statement of facts re......