Haller v. Blaco
| Decision Date | 22 March 1883 |
| Citation | 15 N.W. 348,14 Neb. 195 |
| Parties | WILLIAM D. HALLER, PLAINTIFF IN ERROR, v. RICHARD BLACO, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Washington county. Tried below before SAVAGE, J.
AFFIRMED.
L. W Osborn, for plaintiff in error.
E Estabrook, for defendant in error.
OPINION
This is a petition in error from Washington county. The original action was brought by the plaintiff in error in the county court, for the forcible entry and detention of a quarter-section of land, where the defendant had judgment in his favor, which, on proceedings in error to the district court, was affirmed. This judgment of affirmance is now here for review.
The errors assigned are practically three. First. The refusal of the court "to make separate findings as required by law." Second. That the finding of the county judge was against the evidence. Third. The exclusion of certain tax receipts offered in evidence.
As to the first error complained of, the record only shows that "the plaintiff requested the court to make separate findings of fact, which the court refused to do." There was no error in this refusal. The statutory provision by which this demand upon the court is supposed to have been justified, does not entitle a party to "separate findings of fact," but simply to a statement in writing of "the conclusions of fact found separately from the conclusions of law." Sec. 297, civil code. The request therefore was not within the contemplation of the statute. Besides, there was but a single conclusion of fact to be passed upon, and that was simply whether the evidence showed the complaint to be true. The court did find expressly "that the complaint" was "not true," which gives ample opportunity for review upon the question of the findings being supported by the evidence.
The second assignment cannot be upheld. The evidence was clearly insufficient to sustain the complaint. The charge was that "Blaco did, on the first day of December 1876 unlawfully and forcibly enter upon the said premises, and has unlawfully and forcibly detained the same" from the plaintiff. The evidence offered by the plaintiff was to the effect merely that he claimed the land under a tax deed, which by this court had been pronounced invalid (Haller v. Blaco, 10 Neb. 36, 4 N.W. 362); that Haller himself had never in person been upon the land, but had executed a lease of it to one Mortenson, who, at his instance, in the fall of 1876 had erected a small house and stable thereon, with the intention of living there; that even when Mortenson went on the land, under this lease, the defendant Blaco was in actual possession, engaged in plowing, and had during that year raised and harvested a crop of wheat thereon; that soon after Mortenson had completed the house, Blaco moved...
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