Fritz v. Grosnicklaus

• Decision Date: 24 November 1886
• Citation: 30 N.W. 411,20 Neb. 413
• Parties: JOHN G. FRITZ AND PAULINA FRITZ, PLAINTIFFS IN ERROR, v. CRIST GROSNICKLAUS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

30 N.W. 411

20 Neb. 413

JOHN G. FRITZ AND PAULINA FRITZ, PLAINTIFFS IN ERROR, v. CRIST GROSNICKLAUS, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 24, 1886

ERROR to the district court for Holt county. Tried below before TIFFANY, J.

AFFIRMED.

Uttley & Small, for plaintiffs in error.

Kinkaid & King, for defendant in error.

OPINION

REESE J.

This is a proceeding in error to the district court of Holt county.

The first question presented for decision is as to the alleged error of the district court in its ruling upon a demurrer to the petition of defendant in error, who was plaintiff below.

The petition is as follows:

"1st. The plaintiff for cause of action states the facts to be that on the 13th of May, 1881, he purchased, and thereby became the owner of, the northeast quarter of section thirty-two (32), township twenty-nine (29), range eleven (11) west sixth principal meridian, in Holt county, Nebraska.

"2d. That, at the time of said purchase, plaintiff and one David L. Ludwig were contemplating a co-partnership to carry on a general milling and other kindred business in Holt county, Nebraska, the members of which were the said plaintiff and said David Ludwig, and no others, in the said contemplated company. Partnership was to be Grosnicklaus & Co., but said partnership at the time of said purchase had not been formed.

"3d. That plaintiff, supposing at the time of said purchase that said contemplated partnership would be formed, and, to save the expense of recording said property, had said real estate deeded to Grosnicklaus & Co., to inure to the use of said partnership when it should be formed, as was then contemplated.

"4th. That the plaintiff paid the entire purchase price of said lands from his own individual funds.

"5th. That said contemplated co-partnership between plaintiffs and said David Ludwig was not, at the time of said purchase, nor at any time prior or subsequent thereto, actually formed, and no such co-partnership has ever in fact existed.

"6th. That the defendants now claim title, the nature and extent of which is unknown to plaintiff, in and to said premises by virtue of a partnership formed between the said plaintiffs and the said defendants herein and one Anna Grosnicklaus; but said partnership was formed long after the purchasing of said lands by plaintiff, and that neither of said defendants have any title or interest in said land or any part thereof.

"7th. The plaintiff further says that the claim of said defendants to title of said land casts a cloud upon the title of this plaintiff to said land.

"8th. The plaintiff further says that he is the absolute owner of said land in fee simple, and defendants have no right or title in the same. First. Plaintiff therefore prays that each of said defendants may be summoned to appear and show cause why the title of plaintiff should not be quieted in and to said lands. Second. That on the final hearing of this cause this plaintiff be decreed to be the absolute and sole owner of said premises, and that upon the final hearing of said cause said defendants and each of them be perpetually enjoined from having or claiming any interest or title in and to said premises or any portion thereof, and that plaintiff have such other and further relief as may be just and equitable.

The grounds for demurrer are that the petition does not state facts sufficient to constitute a cause of action, and that "it does not appear from the facts stated that there is any cloud on plaintiff's title."

The demurrer was overruled.

It is insisted that the petition fails to state a cause of action in that it does not contain any averments describing the character of the alleged claim of plaintiffs in error, nor that they have no title or interest in the land described in the petition.

It must be conceded that the petition is not skillfully drawn, and is not as full in its averments as might be desired by a careful pleader but we think that by the application of the liberal rules which prevail, under the code, for the construction of pleadings (Humphries v. Spafford, 14 Neb. 488, 16 N.W. 911. Sec....