Gaughran v. Crosby

• Decision Date: 22 September 1891
• Citation: 49 N.W. 776,33 Neb. 33
• Parties: GAUGHRAN ET AL. v. CROSBY.
• Court: Nebraska Supreme Court

33 Neb. 33

49 N.W. 776

GAUGHRAN ET AL.

v.CROSBY.

Supreme Court of Nebraska.

Sept. 22, 1891.

Syllabus by the Court.

1. In order to review the proceedings in the trial of an equity cause by petition in error, a motion for a new trial must be filed in the district court the same as in an action at law.

2. The failure to file such a motion is not sufficient ground for dismissing the petition in error.

Error to district court, Dakota county; NORRIS, Judge.

Action by John Gaughran and others against Mary Crosby to set aside a deed of certain land. Judgment for defendant. Plaintiffs bring error. Affirmed.C. L. Wright and Jay Bros., for plaintiffs in error.

Spalding & Taylor and John T. Spencer, for defendant in error.

NORVAL, J.

On the 15th day of March, 1888, one Hugh Gaughran, then a resident of Dakota county, died, leaving his brothers and sisters, John Gaughran, Bridget Morf, Peter Gaughran, Mary Crosby, Catherine Leith, and Mat Gaughran, his sole heirs at law. In January, 1888, Hugh Gaughran conveyed his real and personal property to the defendant, Mary Crosby, his sister. The plaintiffs in error brought this action to set aside the deed to the real estate and the bill of sale of the personalty executed by said Hugh Gaughran in favor of said Mary Crosby, on the ground that the same were procured by fraud and undue influence exerted by the defendant. Upon the pleadings and proofs, the court found the issues in favor of the defendant, and dismissed the action. The plaintiffs prosecute error to this court. The case is submitted upon a motion to dismiss, and upon the merits.

The defendant in error moves to dismiss the petition in error for the reason that no motion for a new trial was filed in the district court. While it is indispensable that a motion for a new trial be made in the trial court, in order to entitle a party to a review, by proceedings in error, of the errors occurring at the trial, yet the failure to file such a motion is not sufficient ground for dismissing the petition in error, as the errors assigned may be based upon the pleadings and judgment, and this court will not, on a motion to dismiss, look into the record to ascertain if such is the case. Cheney v. Wagner, 30 Neb. 262, 46 N. W. Rep. 427. The motion to dismiss is therefore overruled. No motion for a new trial having been filed in the district court, we are precluded from examining any of the alleged errors which occurred during the trial, or whether the evidence...