Fuller v. Cunningham

• Decision Date: 16 June 1896
• Parties: FULLER v. CUNNINGHAM.
• Court: Nebraska Supreme Court

48 Neb. 857

67 N.W. 879

FULLER

v.CUNNINGHAM.

Supreme Court of Nebraska.

June 16, 1896.

Syllabus by the Court.

1. A verdict not clearly against the weight of the evidence will not be disturbed, though there may have been sufficient evidence to support a contrary verdict.

2. Questions not raised before and considered by the trial court on the hearing of a case, will not be available when raised for the first time in this court.

3. Decisions upon points involved in a case, made by this court on a former hearing, become the law of the case, and, if the cause be brought again to this court, they will not, as a rule, be re-examined, or the ruling then made reversed, unless manifestly incorrect.

4. Objections to instructions examined, and held not well taken, and instruction requested held properly refused.

Error to district court, Douglas county; Hopewell, Judge.

Replevin by Dennis Cunningham against Francis C. Fuller. There was a judgment for plaintiff, and defendant brings error. Affirmed.C. A. Baldwin and Weaver & Giller, for plaintiff in error.

Cowin & McHugh, for defendant in error.

HARRISON, J.

Dennis Cunningham commenced this, an action of replevin, in the district court of Douglas county, against Francis C. Fuller, to recover the possession of a frame building in South Omaha, in which there had been and was being conducted a retail liquor business or saloon; also to recover the bar and fixtures, all furniture and other articles in use in the building and business. There was a trial of the issues, and judgment for defendant, which in error proceedings in this court, was reversed, and the cause remanded to the trial court for further proceedings. For a report of the former decision, see 35 Neb. 58, 52 N. W. 836. A second trial in the district court resulted in a verdict and judgment for the plaintiff, hence the presentation of the case here on error on behalf of the defendant, Francis C. Fuller.

Cunningham's claim to ownership and right of possession of this property in controversy was predicated upon an alleged purchase of it by him during the month of October, 1887, of Groner & Yates, a firm then in the retail liquor business in the building. Fuller's rights in the premises were grounded in an alleged purchase of the property from George W. Duncan, who asserted a sale to him by Groner & Yates of the same date as the alleged purchase by Cunningham, or that the transactions which were stated to constitute a purchase by Cunningham in reality made a sale to Duncan.

It is insisted in the argument in the brief filed for Fuller that the verdict was not supported by the evidence, and was contrary to the evidence. We have carefully examined and considered the evidence, and while, doubtless, it would sustain a verdict directly to the contrary of the one returned by the jury, it was sufficient to support the determination of the issues made by the jury as embodied in its verdict; and, agreeable to the established rule, the verdict will not be...