In re McCleneghan's Estate

• Decision Date: 09 March 1945
• Docket Number: 31883.
• Citation: 17 N.W.2d 923,145 Neb. 707
• Parties: In re McCLENEGHAN'S ESTATE. McCLENEGHAN v. PULLIAM.
• Court: Nebraska Supreme Court

17 N.W.2d 923

145 Neb. 707

In re McCLENEGHAN'S ESTATE.

McCLENEGHAN v. PULLIAM.

No. 31883.

Supreme Court of Nebraska

March 9, 1945

Syllabus by the Court.

1. When a petition is filed to which a demurrer is sustained and with leave of court an amended petition is filed containing substantially the same allegations as the original petition it is proper practice to call the matter to the attention of the court by motion to strike such amended petition from the files.

2. In determining whether an amended petition states a cause of action the court will not ordinarily look beyond the pleading against which the attack is directed.

3. The rule that a demurrer searches the entire record applies only when a demurrer is filed to a pleading subsequent to the petition.

4. A pleading which has been superseded by an amended pleading is only evidence of the facts therein alleged, and must be introduced as any other evidence in order to be considered.

5. A rule that a party may at any and all times invoke the language of his opponent's pleading as rendering facts therein alleged indisputable applies only to statements in the pleadings upon which the case is tried.

6. Witzenburg v. State, 140 Neb. 171, 299 N.W. 533 distinguished.

7. Neither the fact that the petition may be informal or open to objection in respect of particular allegations, nor the fact that the record in the probate proceedings attacked may disclose facts at variance with some of its allegations afford any ground of demurrer or warrant for striking it from the files.

8. The statute of limitations, the statute of nonclaim and res adjudicata are ordinarily affirmative defenses. It is only when they affirmatively appear to exist from the petition itself that they afford a basis for the sustaining of a general demurrer.

9. A transcript on appeal may not be referred to in determining whether a petition states a cause of action.

Wells Martin & Lane, of Omaha, for appellant.

Ellick, Fitzgerald & Smith, of Omaha, Wm. R. Patrick, of Papillion, and Seymour L. Smith, of Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an appeal from a judgment of the district court dismissing plaintiff's petition on appeal from the county court after a motion to strike addressed thereto had been sustained and plaintiff had elected to stand thereon.

The second amended petition alleges that on and prior to May 12, 1942, Joseph McCleneghan, Jr., the plaintiff, and Joseph McCleneghan, Sr., were partners carrying on a livestock commission business at the Union Stock Yards in Omaha under the name of The Record Live Stock Commission Co. On May 12, 1942, Joseph McCleneghan, Sr., died. The plaintiff contends that as the sole surviving partner he is entitled to the possession of the assets and business of the partnership for the purpose of liquidation and distribution. One John A. Hart was appointed special administrator and on June 17, 1942, the will of Joseph McCleneghan, Sr., was admitted to probate and Hart was appointed executor of the estate. On May 18, 1942, the county court ordered Hart as special administrator to take possession of the business and assets of The Record Live Stock Commission Co., and to continue the business of the company. In compliance with this order Hart took possession of the property, assets and earnings of the partnership business up to and including September 5, 1942, when he resigned. During this period he collected funds from the partnership business in the amount of $3,777.40, $1,705.59 he paid out on claims on the order of the county court and $2,071.81 he retained in cash for distribution. Upon the resignation of Hart the county court appointed Lester V. Pulliam administrator de bonis non to complete the administration of the estate. Pulliam received the funds heretofore mentioned from Hart and now holds them subject to the order of the court. The petition alleges that plaintiff as the sole surviving partner has the duty of liquidating the affairs of the partnership and making distribution of the remaining assets, and is therefore entitled to the possession of the $3,777.40 as against the administrator. The petition further alleges that the partnership was fully liquidated in December, 1942, and that nothing remained to be done except to arrive at an accounting between the plaintiff as the sole surviving partner and the administrator of the estate. It is further alleged that at a hearing duly had in the county court on September 28, 1943, a full accounting of the affairs of the partnership was had which was approved by the administrator and the county, court. It was therein determined that the administrator held $3,777.40, which constituted the sole assets of the partnership and out of which the estate was entitled to $1,112.71 and the plaintiff to $2,664.69. This is the order from which this appeal was taken. Demand has been made for the payment of the funds above set out and the administrator has failed to pay the same or any part thereof to the plaintiff. The petition prays that the court order a distribution in accordance with the accounting had in the county court, or, if the court finds that a proper accounting has not been had, that a proper accounting be made and a distribution of assets ordered pursuant thereto. To this second amended petition the administrator filed a motion to strike, which was sustained and, plaintiff electing to stand thereon, the action was dismissed. Plaintiff contends that the trial court committed error in so doing.

The record shows that plaintiff filed his petition in the district court, after lodging his appeal there, on November 13, 1943. A general demurrer thereto was sustained on January 10, 1944. On the same day an amended petition was filed. The defendant moved to strike the amended petition on January 29, 1944. On April 10, 1944, this motion was sustained for the reason that the matters set forth in the amended petition were essentially the same facts pleaded in the original petition to which a demurrer had been sustained. On June 7, 1944, a second amended petition was filed. On June 22, 1944, a motion to strike the second amended petition was filed and on July 22, 1944, the motion to strike was sustained for the reason that the second amended petition was essentially the same as the original petition to which a general demurrer had been sustained.

When a petition is filed to which a demurrer is sustained and with leave of court an amended petition is filed containing substantially the same allegations as the original petition, the proper practice is to call the matter to the attention of the court by motion to strike such amended petition from the files. Clark v. Lincoln Liberty Life Ins. Co., 139 Neb. 65, 296 N.W. 449; Loghry v. Fillmore County, 75 Neb. 158, 106 N.W. 170. It is error, however, to strike such an amended petition if it is materially different from the original and states a cause of action. Wheeler v. Barker, 51 Neb. 846, 71 N.W. 750; Brandeen v. Beale, 117 Neb. 291, 220 N.W. 298. We are satisfied that the allegations of the second amended petition are materially different from the original and that it could not be properly stricken on that ground. The question to be determined is whether plaintiff's second amended petition states a cause of action.

The administrator contends that the petition contains two causes of action; one upon a personal oral promise of Joseph McCleneghan, Sr., to pay a bank overdraft of The Record Live Stock Commission Co. in the amount of $1,979.89 on February 1, 1938, the date of the formation of the partnership; the other, equitable in nature, seeking an accounting of the earnings of the partnership after the death of Joseph McCleneghan, Sr. The difficulty with defendant's position is that the second amended petition makes no mention of the aforesaid items or of the transactions out of which they arose. The petition merely alleges that Hart took possession of the assets of the partnership which amounted to $3,777.40 alleges that th...