Gage v. Bloomington Town Co.

• Decision Date: 03 October 1893
• Parties: GAGE ET AL. v. BLOOMINGTON TOWN CO.
• Court: Nebraska Supreme Court

37 Neb. 699

56 N.W. 491

GAGE ET AL.

v.BLOOMINGTON TOWN CO.

Supreme Court of Nebraska.

Oct. 3, 1893.

Syllabus by the Court.

1. In an action of ejectment against 23 different defendants, Z. and 8 others united in an answer signed by W., their attorney, while G., with 12 others, by their attorney, F., filed an answer alleging a defense different from that stated in the answer of Z. After a finding and judgment for the plaintiff against all of the defendants, a motion for a new trial was filed, alleging errors of law occurring at the trial, and signed “E. A. F., Attorney for Defendants.” Held, in the absence of evidence that F. appeared in the district court for the defendants who joined in the answer of Z., the latter have no standing in this court, and are not entitled to have the judgment reviewed.

2. On proceedings by petition in error to review a judgment of the district court, the minutes of the judges on the trial docket will not be received to impeach the judgment as entered at large upon the journal, and approved by the judge.

Error to district court, Franklin county; Morris, Judge.

Action in ejectment by the Bloomington Town Company against James D. Gage and others. Plaintiff had judgment, and from an order denying a new trial defendants bring error. Affirmed.E. A. Fletcher, for plaintiffs in error.

Sheppard & Black, for defendant in error.

POST, J.

This was an action by the defendant in error in the district court of Franklin county to recover the W. 1/2 of the S. W. 1/4 of section 31, township 2, range 14 W., in said county. There were named in the petition 23 different defendants, of whom Julia M. Zideker and 8 others joined in an answer by their attorney, H. Whitmore, and James D. Gage, with 12 others, joined in an answer by E. A. Fletcher, their attorney. These pleadings will for convenience be referred to as the “Gage answer” and the “Zideker answer.” It is alleged, among other things, by the plaintiff below, that it is a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska. The Zideker answer consists of a denial, in the following language: “The defendants deny that said plaintiff is or ever has been a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska.” The Gage answer consists (1) of a general denial; (2) an allegation that certain conveyances through which the plaintiff claims title were made without consideration; (3) an allegation that the Franklin Town Company, the plaintiff's immediate grantor, at the time of the execution of the deed to it, and at the time it attempted to convey to plaintiff, was not a corporation, and incapable of receiving, holding, or conveying the title to property of any kind or character. The reply to each answer is a general denial. From the transcript filed in the court it appears that a trial was had on the 12th day of December, 1890, which resulted in a finding and judgment for the plaintiff below against all of the defendants therein. On the 19th day of the same month a motion for a new trial was filed, alleging, as grounds therefor, that the finding is against the law and the evidence; also errors occurring at the trial. Said motion is signed, “E. A. Fletcher, Attorney for Defendants.”

1. The first proposition argued is that the defendants named in the Zideker answer have no standing in this court, for the reason that they did not join in the motion for a new trial. In that proposition we fully concur. So far as we are informed, Mr. Fletcher appeared in the district court only for the defendants named in the answer signed by him. Since the record fails to disclose the filing of a motion for a new trial by the defendants named, we must assume that they were satisfied with the judgment below, and cannot now complain.

2. It is apparent that the motion of the other defendants was not filed within the time required by law, and was for that reason properly overruled. The...