Goken v. Dallugge

• Decision Date: 02 November 1904
• Citation: 101 N.W. 244,72 Neb. 22
• Parties: AHLRICH GOKEN ET AL. v. ELLA M. DALLUGGE
• Court: Nebraska Supreme Court

101 N.W. 244

72 Neb. 22

AHLRICH GOKEN ET AL. v. ELLA M. DALLUGGE

Supreme Court of Nebraska

November 2, 1904

JUDGMENT MODIFIED.

AMES, C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

This is a motion for leave to argue orally a motion for a rehearing from a decision in this case reported ante, p. 16. The error complained of is so manifest that oral argument could neither obscure it nor render it more plain, and would therefore be useless. The sole ground of the reversal as to the wife, Antje Goken, is the incompetency of the testimony of the physicians Lester and Rich, but we failed to observe at the time of preparing the opinion that this testimony was not objected or excepted to. If that fact was called to our notice on the argument, it failed to arrest our attention, and we also overlooked a brief mention of it in the brief accompanying the motion for a rehearing. The rule that a party cannot complain in this court of the admission of testimony to which he has not objected and excepted is too well settled to require the citation of authorities in its support.

It is recommended that the former decision of this court, in so far as it reverses the judgment of the district court against the wife, the plaintiff in error Antje Goken, be vacated and set aside, and that as to her the judgment of the last named court be affirmed.

LETTON and OLDHAM, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the former decision of this court, in so far as it reverses the judgment of the district court against the wife, the plaintiff in error Antje Goken, be vacated and set aside, and that as to her the judgment of the last named court be affirmed.

JUDGMENT MODIFIED.