Kehr v. Kehr
| Decision Date | 23 March 1962 |
| Docket Number | No. 35116,35116 |
| Citation | 173 Neb. 532,114 N.W.2d 26,6 A.L.R.3d 463 |
| Parties | , 6 A.L.R.3d 463 Ruth Helen KEHR, Appellant, v. Norris W. KEHR, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A party on appeal may not properly assign the admission of evidence as error when no objection was made thereto in the trial.
2. A trial court may properly direct the inclusion of all matters in a bill of exceptions which it had before it and which it considered, although such matters were not formally received.
3. In a suit for a divorce from bed and board the court has power to adjust the property rights of the parties when the evidence and circumstances require it.
4. It is the general rule that the commencement of a second suit for the same cause of action cannot be pleaded in abatement of the first suit.
5. But when the second suit embraces more as to the subject matter than the first, the court may properly abate the first action and permit the parties to proceed in the second where complete relief can be granted, and thus avoid a multiplicity of suits.
Person & Dier, Holdrege, for appellant.
Anderson, Storms & Anderson, Holdrege, for appellee.
Heard before CARTER, MESSMORE, YEARGER, SPENCER, BOSLAUGH and BROWER, JJ.
This is an appeal from a judgment of the district court for Gosper County sustaining a plea in abatement and dismissing plaintiff's petition for a partition of certain lands held by the parties in joint tenancy.
Plaintiff and defendant were wife and husband during the times pertinent to this appeal. They were the owners of 400 acres of farm land in Gosper County which they owned in joint tenancy. On December 9, 1960, plaintiff filed an action to secure a partition of these lands. On the same day, plaintiff filed an action to obtain an absolute divorce, child custody, child support, and a determination of property rights. Defendant thereupon filed a plea in abatement in the partition case on the ground that the relief sought in that case could be determined in the divorce action and that the partition action should be abated to avoid a multiplicity of suits. Before hearing on the plea in abatement, plaintiff dismissed her divorce suit without prejudice. The objections of defendant to the dismissal of the divorce action were overruled by the trial court. Defendant's plea in abatement was thereupon overruled.
On April 27, 1961, plaintiff filed a suit in the district court for Gosper County to obtain a divorce from bed and board. The defendant thereupon filed a second plea in abatement in the partition suit which the trial court sustained. The plaintiff has appealed from the order of the trial court dismissing the partition suit.
The plaintiff complains that the trial court admitted the files in the divorce action and in the suit for divorce from bed and board without a proper foundation being laid therefor. It is a sufficient answer to this assignment of error for us to say that no objection was made to the offer of the files in evidence. Plaintiff may not complain of the admission of evidence to which no objection was made.
Plaintiff contends that the files in the divorce and separate maintenance actions were not formally received in evidence by the trial court and that it is error for that court to direct their inclusion in the bill of exceptions.
It is the rule in this state that the trial court may properly direct the inclusion of all matters in a bill of exceptions which it had before it and which it considered in determining the case. That the files in question were offered and considered by the trial court, although not formally received, is established by the record. Under such circumstances the trial court may properly order their inclusion in the bill of exceptions. State ex rel. Bankers Reserve Life Ass'n v. Scott, 59 Neb. 499, 81 N.W. 305; State ex rel. Cobb v. Fawcett, 64 Neb. 496, 90 N.W. 250; Peterson v. Skiles, 173 Neb. 223, 113 N.W.2d 105.
Whether or not the district court has jurisdiction in a suit for divorce from bed and board to determine the property rights of the parties appears pertinent to a decision of the present appeal. The...
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