Hackler v. Miller

• Decision Date: 18 December 1907
• Docket Number: 14,793
• Citation: 114 N.W. 274,79 Neb. 209
• Parties: MUNSEY HACKLER, APPELLANT, v. HOWARD MILLER ET AL., APPELLEES
• Court: Nebraska Supreme Court

114 N.W. 274

79 Neb. 209

MUNSEY HACKLER, APPELLANT, v. HOWARD MILLER ET AL., APPELLEES

NO. 14,793

Supreme Court of Nebraska

December 18, 1907

AFFIRMED.

OPINION

BARNES, J.

This case is before us on a rehearing. By our former opinion ante, p. 206, the judgment of the district court in favor of the defendants was affirmed, for the reason that the plaintiff's action was one for damages for trespass in the nature of assault and battery committed by false imprisonment, and was barred by the statute of limitations when it was commenced. We think the rule of law announced in the opinion is sound, but an examination of the record convinces us that it does not correctly dispose of one of the questions presented thereby. The plaintiff's amended petition contained two causes of action; one for malicious prosecution, and the other for a trespass in the nature of an assault and battery committed by false imprisonment. The record discloses that it was made to appear that plaintiff was designated in his petition, and his action was brought in the name of, "Munsey Hackley," instead of "Munsey Hackler," which is his true name. The defendant therefore objected to the plaintiff's evidence and the objection was sustained, to which an exception was noted. Plaintiff thereupon made the following request: "The plaintiff, Munsey Hackler, asks leave of court to change the words 'Munsey Hackley' to the words 'Munsey Hackler' by amendment, either by interlineation or by filing such other pleading as the court may order. To which the defendants, Miller and Reavis, objected, because the same is incompetent, improper, and because it changes the name of the plaintiff in this case, and because the statute of limitations under the name of Munsey Hackley has already run. By the court: I will allow the amendment, but not by interlineation, and I am not passing on the question of the statute of limitations raised by the objection. To which ruling the defendants except." Thereupon the following agreement was made in open court: "Now, it is agreed between the parties that the evidence taken up to this time may stand as applicable to the amendment filed." So it appears beyond question that the plaintiff asked and obtained the ruling of which he now complains, and to which he entered no objection. This sufficiently disposes of his assignment "that the court erred in requiring him to amend his petition," and which he alleges resulted in the interposition of the plea of the statute of limitations." After the proceedings above mentioned were had, the defendants filed their answers, which contained both a general denial and a plea of the statute of limitations. Plaintiff replied instanter, and the trial proceeded. By filing his amended petition he acquiesced in the ruling of the court, and waived his exception thereto.

The plaintiff introduced a record of the proceedings in the justice court, which were the basis of the action for malicious prosecution, to which defendants objected for the reason that it appeared that the plaintiff's cause of action was barred by the statute of limitations. The court overruled the objection, and properly so in our opinion, because the first cause of action set forth in the plaintiff's petition was one for malicious prosecution; and, although the complaint filed before the justice of the peace failed to state facts sufficient to charge the plaintiff with the commission of a crime, and no judgment which could have been enforced was ever pronounced against him, yet, in order to terminate the prosecution or avoid the effects of the record in the justice court, he deemed it necessary to appeal to the district court, and so the cause was pending and undisposed of until it was dismissed by the county attorney. The action having been commenced within one year after such dismissal, his cause of action for malicious prosecution was not barred by the statute of limitations. Not so, however, as to the cause of action for assault and battery committed by the alleged false imprisonment. The court should have sustained the defendants' objection to the introduction of any testimony in support of the plaintiff's second cause of action, but of this the plaintiff is not in a position to complain. The court having overruled the objection predicated upon the statute of limitations, that matter was practically eliminated from the case, and the defendants were, in effect, deprived of that defense. It is true it remained in the answers because it was not attacked by the plaintiff, and, neither party having requested the court to instruct the jury on that point, no instruction was given in relation to it. So it would seem that the jury could not have considered it in arriving at their verdict.

After the ruling above mentioned the trial proceeded on the plaintiff's theory of the case. The jury were instructed upon that theory,...