In re Estate of Nilson

• Decision Date: 30 March 1934
• Docket Number: 28676
• Citation: 253 N.W. 675,126 Neb. 541
• Parties: IN RE ESTATE OF ANDERS G. NILSON. v. ALMITTA NILSON, APPELLANT: E. I. ELLIS, ADMINISTRATOR, APPELLEE, CHARLES M. SCHROEDER, INTERVENER, APPELLEE
• Court: Nebraska Supreme Court

253 N.W. 675

126 Neb. 541

IN RE ESTATE OF ANDERS G. NILSON.

E. I. ELLIS, ADMINISTRATOR, APPELLEE, v. ALMITTA NILSON, APPELLANT:

CHARLES M. SCHROEDER, INTERVENER, APPELLEE

No. 28676

Supreme Court of Nebraska

March 30, 1934

APPEAL from the district court for Burt county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. A litigant who has invoked the jurisdiction of the court upon a matter of which it has the power to take cognizance cannot thereafter object thereto.

2. " If a defendant desires an affirmative judgment against the plaintiff, he should state in his answer the ultimate facts to support his contention. If he fails to allege an essential fact, but it is pleaded by his adversary, an affirmative judgment in defendant's favor may be sustained by the pleadings." Snyder v. Collier, 85 Neb. 552 , 123 N.W. 1023, 133 Am.St.Rep. 682.

Appeal from District Court, Burt County; Leslie, Judge.

Accounting of E. I. Ellis, administrator of the estate of Anders G. Nilson, deceased, which was opposed by Almitta Nilson, and wherein Charles M. Schroeder intervened. From a decree of the district court sustaining generally the findings of the county court, Almitta Nilson appeals.

Affirmed.

William A. Ehlers, for appellant.

W. M. Hopewell and Orville Chatt, contra.

Heard before GOOD, EBERLY and DAY, JJ., and CHAPPELL and LANDIS, District Judges.

OPINION

CHAPPELL, District Judge.

A petition was filed in the county court of Burt county, Nebraska, on February 13, 1931, by E. I. Ellis, administrator, with the will annexed, of the estate of Anders G. Nilson, deceased, praying for approval of his accounts as administrator, for order of distribution of the funds then in his hands, for directions by the court as to certain money then in his possession, for final settlement of the estate, and for final discharge as administrator therein. He alleged in substance that the estate was insolvent, and that he had on hand $ 983.86 in cash and, in addition thereto, $ 3,200 concerning which he asked specific directions of the court as to its disposition. In this connection he alleged in substance that on or about March 21, 1930, he was called to the farm home of the deceased and his widow, Almitta Nilson, and that at that time Almitta Nilson gave into his possession cashier's checks upon the First National Bank of Tekamah, Nebraska, payable to deceased in the amount of $ 3,500; that at that time Almitta Nilson stated that $ 2,000 of this amount was to be hers, but that nothing was said concerning the remaining $ 1,500; that the petitioner brought the cashier's checks to town and, as agent of Anders G. Nilson, deceased, indorsed them, and has since that date retained this sum of money, except $ 300 thereof, in the accounts of the Tekamah Investment Company.

The court, upon the filing of this petition, fixed a time for hearing and notice of final settlement, and hearing thereon was duly given as provided by law. To this petition Almitta Nilson filed answer on February 13, 1931, objecting to that part of the petition with reference to the $ 3,200, denying generally each and every allegation with reference thereto, alleging that this money was her own individual personal property and not in the possession of the administrator as such, but that at all times since March 21, 1930, it had been deposited and invested with the Tekamah Investment Company, a corporation, to her credit and was no part of the estate. She then prayed that the court, upon hearing, find and direct that the $ 3,200 was not a part of the estate and that the administrator was not entitled to it.

The matter came on for hearing in the county court by agreement of all the parties, they being present in open court with their respective attorneys, together with Charles M. Schroeder, a creditor of the estate, and his attorney. Thereupon the county court entered a decree approving the final report of the administrator, ordering the distribution of funds in his hands, holding that the special fund of $ 3,200, as listed in the final report of the administrator, was and is the property of the estate, and specifically directed that it should be so considered in the distribution thereof; that, after the payment of certain claims, the balance then remaining in the administrator's hands should be distributed pro rata among the creditors, Charles M. Schroeder being one of them, and that the administrator was entitled to be discharged.

Almitta Nilson perfected an appeal to the district court for Burt county, Nebraska, whereupon the case was tried upon the transcript and pleadings from the county court. After full hearing, the parties all being present in court with their attorneys, decree was entered by the district court sustaining generally the findings of the county court. Almitta Nilson then filed a motion for new trial, which was sustained by the court, and as a part of the order sustaining such motion, the court ordered that the parties file pleadings setting forth their issues. She, thereupon, filed a petition in the district court for Burt county, Nebraska, in which she set forth verbatim all of the allegations of the administrator's petition which he filed in the county court with reference to the $ 3,200 fund in controversy, her answer to that petition, and the findings of the county court with reference thereto. She then alleged that no other pleadings were filed with respect to this fund in the county court; that the entire $ 3,200 was her own personal, individual property and not the property of the deceased or the estate, and prayed that the fund described in the administrator's petition for final settlement and account be decreed to be her personal property and no part of the estate. To this petition the administrator filed answer without traversing the allegations of her petition, but renewing his prayer as made in the county court. To the answer she filed reply denying generally the allegations thereof and reasserting her claim to the fund.

The creditor, Charles M. Schroeder, also filed an answer to her petition denying generally the allegations of her petition and praying that the fund in controversy be found by the court to be a part of the estate. After a motion was overruled to strike the answer of the creditor, she filed reply thereto denying generally the allegations of the answer.

A trial was had in the district court for Burt county, Nebraska, upon these issues and a decree was entered finding generally that there was not sufficient evidence before the court to sustain her claim to this fund, directing the administrator to distribute the remaining assets according to the further order of the county court after a certified copy of this decree should be filed therein.

Appeal is taken by her to this court. She contends that, the administrator not having filed reply to her answer in the county court and not having denied the allegations of her petition in the district court, no issue was ever presented in either court by the pleadings upon which a judgment could be based; in other words, not being denied by the administrator, it was a legally admitted fact in both courts that she was the owner of the fund. This contention cannot be sustained. There is no provision of the statute requiring that such pleadings be filed in the county court by the administrator. He was an officer of the court under its supervision, direction and control, in an in rem proceeding. Lewis v. Barkley, 91 Neb. 127; Fitch v. Martin, 83 Neb. 124, 119 N.W. 25, on rehearing, 84 Neb. 745; Stichter v. Cox, 52 Neb. 532, 72 N.W. 848; Estate of Fitzgerald v. First Nat. Bank of Chariton, 64 Neb. 260, 89 N.W. 813; In re Estate of Creighton, 91 Neb. 654, 136 N.W. 1001; In re Estate of Sweeney, 94 Neb. 834, 144 N.W. 902. Further, no objection was made either orally or in writing that no reply had been filed; the trial proceeded as if the answer was denied generally, and it was waived. Loan & Trust Savings Bank v. Stoddard, 2 Neb. (Unof.) 486; Schuster v. Carson, 28 Neb. 612, 44 N.W. 734; Missouri P. R. Co. v. Palmer, 55 Neb. 559, 76 N.W. 169; Minzer v. Willman Mercantile Co., 59 Neb. 410, 81 N.W. 307; Gruenther v. Bank of Monroe, 90 Neb. 280, 133 N.W. 402; Gross v. Scheel, 67 Neb. 223, 93 N.W. 418; Hunter v. Weiner, 103 Neb. 538, 172 N.W. 521; In re Estate of Cheney, 78 Neb. 274, 110 N.W. 731; Krbel v. Krbel, 84 Neb. 160, 120 N.W. 935; American Freehold Land Mortgage Co. v. Smith, 84 Neb. 237, 120 N.W. 1113; Crilly v. Ruyle, 87 Neb. 367, 127 N.W. 251. The case of Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023, disposes of appellant's contention with reference to the issues in the district court. In this case the court said: "If a defendant desires an affirmative judgment against the plaintiff, he should state in his answer the ultimate facts to support his contention. If he fails to allege an essential fact, but it is pleaded by his adversary, an affirmative judgment in defendant's favor may be sustained by the pleadings." See Maxwell, Pleading and Practice (4th ed.) 152, 689. Appellant made all of the administrator's petition in the county court with reference to the $ 3,200 fund and her answer thereto filed in the county court, together with the findings of the county court, a part of her petition in the district court, and the administrator in his answer prayed for affirmative relief as prayed in his petition in the county court. After appellant filed reply thereto, the trial proceeded without this objection as if the issues had been properly made up. This court will take into consideration all of the facts pleaded in the various pleadings and render judgment accordingly. Snyder v. Collier, supra.

Appellant contends that the county court was without jurisdiction of...