Hedges v. Roach

• Decision Date: 19 November 1884
• Parties: D. L. HEDGES, PLAINTIFF IN ERROR, v. EDWARD ROACH, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

21 N.W. 404

16 Neb. 673

D. L. HEDGES, PLAINTIFF IN ERROR, v. EDWARD ROACH, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 19, 1884

ERROR to the district court of Dixon county. Tried below before BARNES, J.

AFFIRMED.

Gantt & Norris, for plaintiff in error.

Barnes Brothers, for defendant in error.

OPINION

COBB, CH. J.

This action was originally commenced before a justice of the peace, on three promissory notes, bearing date June 13, 1876 and maturing respectively the 12th of September, October, and November, of the same year. There was a judgment for the defendant in the justice's court, and the cause taken to the district court by appeal. In the latter court, there was a judgment for the defendant on demurrer, and the plaintiff brings the cause to this court on error.

Three points are presented:

1. The court erred in overruling plaintiff's motion for a judgment on the pleadings.

2. The court erred in allowing defendant to withdraw his answer and file a demurrer to plaintiff's petition.

3. The court erred in sustaining defendant's general demurrer to plaintiff's petition.

It appears from plaintiff's brief, that the action was commenced in the justice's court on the 12th day of October, 1882, and the plaintiff for the purpose of bringing the case without the statute of limitations, put the following clause in his petition.

"Fifth. That since the cause of action accrued on said notes, said defendant has been absent at different times from the state of Nebraska, amounting in all to the period of about two years." The defendant answered, denying each and every allegation contained in said petition, except as in said answer thereafter specially admitted, which answer proceeded as follows: "1. * * * Admits the execution of the notes sued on, but saith that the said notes were given by the defendant to the plaintiff and one C. E. Hedges, and that said notes were transferred to plaintiff; that said notes were in consideration of the sale and delivery of a horse by said plaintiff to the said defendant, and for no other consideration whatever, and the said defendant further avers that in consideration that the said defendant would purchase the said horse from him, the said plaintiff, for the sum of $ 120.00, sixty dollars of which to be paid in cash and give his notes for the balance payable as set forth in plaintiff's petition, he, the said plaintiff, did warrant the said horse to be a good serviceable work horse and well broken to work, and the said defendant thereupon purchased the said horse and caused to be paid said plaintiff sixty dollars in cash, and gave his three certain promissory notes each for the sum of twenty dollars as stated in the said petition, and the said defendant avers that said horse was not a good serviceable work horse nor well broken to work but, on the contrary was almost entirely worthless and of little or no value as a work horse.

"2. And further answering, defendant says that subsequent to the purchase of said horse, and about ten days thereafter, he offered to return said horse to the plaintiff and rescind said trade, at Sioux City, Iowa, and that thereupon said plaintiff agreed with this defendant that if he, the said defendant, would keep said horse, as said horse was of no use to the plaintiff, and allow the said plaintiff to retain the $ 60 in cash paid him by defendant, that he, the said plaintiff, would release him from all liability on said notes, all of which defendant is ready to make appear.

"3. Further answering, defendant avers that the cause of action stated in plaintiff's petition did not accrue to said plaintiff against this defendant within five years before the commencing of this action, and this he is ready to make appear," etc.

After this answer was filed the plaintiff moved for judgment non obstante, and the overruling of his motion he assigns as the first error. It was no doubt the law and the practice, under the old system in courts of equity, that at a certain stage of the case the plaintiff could have it set down for argument on bill and answer, and when upon such argument it appeared to the court that the plaintiff's cause of action was undenied either at law or in fact, a decree would be rendered for the plaintiff. This practice has, I think, been superseded under the code by that of demurrer to the answer, motion for order requiring defendant to make his answer more definite and certain, and motions to strike the answer from the files as frivolous. Some one of these will, in each case, be found to...