Lederer v. Union Savings Bank of Lincoln

• Decision Date: 15 June 1897
• Docket Number: 7338
• Citation: 71 N.W. 954,52 Neb. 133
• Parties: ALEXANDER LEDERER ET AL., APPELLEES, v. UNION SAVINGS BANK OF LINCOLN, APPELLANT
• Court: Nebraska Supreme Court

71 N.W. 954

52 Neb. 133

ALEXANDER LEDERER ET AL., APPELLEES, v. UNION SAVINGS BANK OF LINCOLN, APPELLANT

No. 7338

Supreme Court of Nebraska

June 15, 1897

APPEAL from the district court of Lancaster county. Heard below before HALL, J. Affirmed.

AFFIRMED.

Brown & Leese, for appellant.

Pound & Burr, contra.

OPINION

IRVINE, C.

This was an action brought by Lederer & Strauss, a copartnership doing business in Des Moines, Iowa, and the State Savings Bank of Des Moines, against the Union Savings Bank of Lincoln, Nebraska, the object being to declare a trust on behalf of the plaintiffs as against the defendant for a portion of a judgment in favor of one Louie Meyer, and by Meyer assigned to the defendant. There was a decree for the plaintiffs, and the defendant appeals. The defendant demurred to the petition on the grounds, first, that there was a defect of parties defendant, and second, that the petition did not state facts sufficient to constitute a cause of action. The first ground of demurrer was based on the fact that Louie Meyer was not made a party defendant. It is provided by the Code that the defendant may demur to the petition when it appears on its face "that there is a defect of parties plaintiff or defendant." (Code of Civil Procedure, sec. 94.) Also, that "When any of the defects enumerated in section 94 do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action." (Sec. 96.) It has frequently been held that in order to preserve the right to have a ruling on demurrer reviewed, the party seeking the review must stand on his pleading or demurrer, and if he pleads over by amendment, answer, or reply, the error, if any, is waived. (Mills v. Miller, 2 Neb. 299; Pottinger v. Garrison, 3 Neb. 221; Harral v Gray, 10 Neb. 186, 4 N.W. 1040; Dorrington v Minnick, 15 Neb. 397, 19 N.W. 456; Buck v Reed, 27 Neb. 67, 42 N.W. 894.) While the objection that the petition does not state a cause of action may be interposed at any time, and the judgment of the district court thereon reviewed, this is because section 96 of the Code provides that that defect is not waived by failure to demur. The ruling in such case which is subject to review is that on the objection subsequently interposed, and not merely the ruling on the demurrer. The defect complained of was that Louie Meyer was not a party to the action. If he were a necessary party this fact was disclosed by the petition itself, and the defect was waived by answering over. The ground of the general demurrer was that it did not appear from the face of the petition that plaintiffs had not an adequate remedy in an action at law. Under the Code this objection goes at most to the form of the prayer of the petition. The plain object of the suit was to declare a trust, a subject of equitable cognizance. But aside from this, if the petition stated a cause of action a demurrer would not lie merely because the prayer sought equitable relief instead of a judgment at law. That question would arise on the application for a jury trial, and no such application was made.

The remaining questions go to the merits of the case. One John H Witte executed two notes,--one for $ 200, payable to the order of Lederer & Strauss; the other for $ 400, payable to the order of Louie Meyer. The latter note was sold by Louie Meyer to the plaintiff, the State Savings Bank of Des Moines. Witte died. The plaintiffs being informed of the fact, Lederer & Strauss sent a copy of the note they held to Louie Meyer with instructions to present a claim against the estate therefor. The State Savings Bank indorsed its note "Pay L. Meyer, or order, for collection, account of State Savings Bank, Des Moines, Iowa," and sent the original note, so indorsed, to Meyer. Meyer, instead of presenting the claims on behalf of the owners of the paper, presented a claim in his own name embracing several...