Huffman v. Rhodes

• Decision Date: 09 June 1904
• Docket Number: 13,516
• Citation: 100 N.W. 159,72 Neb. 57
• Parties: HENRY HUFFMAN, APPELLEE, v. J. R. RHODES, ADMINISTRATOR, APPELLANT
• Court: Nebraska Supreme Court

100 N.W. 159

72 Neb. 57

HENRY HUFFMAN, APPELLEE, v. J. R. RHODES, ADMINISTRATOR, APPELLANT

No. 13,516

Supreme Court of Nebraska

June 9, 1904

APPEAL from the district court for Custer county: HOMER M. SULLIVAN JUDGE. Dismissed.

MOTION SUSTAINED.

A. R Humphrey and J. R. Dean, for appellant.

Homer M. Sullivan and C. L. Gutterson, contra.

OPINION

HOLCOMB, C. J.

Appellee moves for a dismissal of this cause out of court, on the ground that the action is not appealable under the provisions of section 675 of the code authorizing appeals only in actions in equity. The questions presented by the motion call for a determination of the nature and character of the present action which has been removed to this court by appeal as distinguished from proceedings in error.

The controversy had its inception in the probate court, wherein was filed by the appellee a claim for several hundred dollars against the estate of one Hiram Curtis, deceased, which was then being administered upon in that tribunal. From an adverse decision by the county judge, the claimant, appellee here, appealed his case to the district court. At the time of the trial in the district court, upon issues raised by the pleadings filed in the county court and from which it is obvious that the action was one at law for the recovery of an alleged indebtedness owing by the intestate to the claimant and after the impaneling of a jury and the introduction of evidence by both parties the record recites: "After testimony had been introduced by both parties and both parties had rested, the following order and stipulation was made: It was announced by the court that as a matter of law the court concludes that the theory upon which plaintiff sought to recover in the county court and the facts upon which he sought to recover in the county court, raised a question that the county court had no jurisdiction to determine, and that the appeal to this court also leaves this court without jurisdiction to determine said case, and for the reason that neither court had jurisdiction, the action as a claim against the estate ought to be dismissed. Whereupon, by agreement of all parties in open court, the plaintiff is to file a petition in equity for an accounting, alleging the trusteeship and trust relations of the deceased with the plaintiff, and the suit shall proceed as an original action against the administrator to establish the trust claimed by plaintiff to be in his hands as such administrator, the administrator agreeing to file an answer and the case to be tried hereafter by the court as an equity action for an accounting. Whereupon, by the order of the court, the jury is discharged from the further consideration of said case. It is further agreed between the parties, that all costs up to this time in the county court, be paid by plaintiff." New pleadings were filed in which the intestate was sought to be charged as trustee having received and had control and the investment of certain moneys alleged to have come into his hands belonging to the claimant and for an accounting, and a trust was sought to be impressed upon the estate of the deceased for the satisfaction of such obligation. After joinder of issues under the new pleadings filed after entry of the above mentioned order, the record discloses that the cause came on again to be heard at a subsequent term of court, at which time the court found and concluded that, as a matter of law, the order hereinbefore referred to holding that the county court had no jurisdiction and that such cause could not be maintained against the estate as a debt was erroneous and wrong; and the court further concludes that since the parties agreed that said case might be tried to the court without a jury, that this court still has jurisdiction to try and determine said case upon the theory upon which it was begun in the county court. Findings were thereupon made to the effect that the estate was indebted to the plaintiff in a specified sum which it was adjudged the plaintiff was entitled to recover of and from the estate and which should be allowed out of such estate and which amount it was adjudged and decreed the plaintiff should have and recover from the defendants in the action; and the proceedings and judgment were ordered to be certified back to the county court.

The appellant's position regarding the effect of the proceedings had and the rulings made and judgment finally rendered, of which we have heretofore made mention, can probably be best stated in the words of counsel. In the brief in resistance to the motion to dismiss it is said: "The...