In re Simon's Estate
| Decision Date | 03 March 1948 |
| Docket Number | 32357. |
| Citation | 31 N.W.2d 231,149 Neb. 382 |
| Parties | In re SIMON'S ESTATE. LITTLE v. SIMON et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
If an appellant seeks reversal and dismissal of an action, and the appellee consenting thereto prays for the same result this court will ordinarily reverse and dismiss the cause and tax costs in conformity with section 25-1933 R.S.1943.
J L. Gagnon, of Falls City, and Lee Killigar, of Auburn, for appellants.
John C. Mullen and Gerald M. Mullen, both of Omaha, for appellee.
Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ and BARTOS and JACKSON, District Judges.
On October 14, 1944, James O. Little, hereinafter called plaintiff, filed a claim in the county court of Richardson County against the estate of Leonard E. Simon, deceased, to recover for services rendered. On October 16, 1944, the administrator refused to honor the claim, writing across the face thereof 'DISALLOWED:'. However, on May 28, 1946, the claim was heard on the merits and allowed by the county court.
The administrator and heirs at law of deceased perfected an appeal therefrom to the district court within the time provided by law. Thereafter, plaintiff did not file his petition in the district court until August 19, 1946, some 83 days after judgment was rendered in the county court. In other words, his petition was filed out of time without prior permission of the court upon good cause shown. See §§ 24-544 and 27-1306, R.S.1943.
On the same day, August 19, 1946, the administrator filed a motion in the district court to strike plaintiff's petition from the files and enter an order of non-suit. On August 27, 1946, a hearing was had on that motion, whereat the administrator adduced evidence showing laches and neglect on the part of plaintiff, who adduced no evidence in reply thereto. On that same day the motion was overruled, and on September 17, 1946, the administrator filed an amended answer in conformity with permission of the court granted September 10, 1946, denying generally and preserving therein the substance of his prior motion. On December 6, 1946, plaintiff filed a motion to strike that portion of the answer, which was overruled by the trial court.
Plaintiff filed a reply in the nature of a general denial, and on July 30, 1947, the issues were heard on the merits. On August 12, 1947, the trial court entered its decree finding generally in favor of plaintiff and allowing the claim.
Motions for new trial were overruled, whereupon the administrator and heirs at law, hereinafter called defendants, appealed to this court, assigning as error, among other things, the trial court's refusal to nonsuit plai...
To continue reading
Request your trial