Levi v. Fred

• Decision Date: 02 January 1894
• Citation: 38 Neb. 564,57 N.W. 386
• Parties: LEVI ET AL. v. FRED.
• Court: Nebraska Supreme Court

38 Neb. 564

57 N.W. 386

LEVI ET AL.

v.FRED.

Supreme Court of Nebraska.

Jan. 2, 1894.

Syllabus by the Court.

1. It is a well-settled rule in this state that an appeal to the district court must be tried on the same issues as in the court from which the appeal was taken.

2. An objection that a petition filed in the district court introduced a new cause of action will not be considered by this court where it appears that no objection was made or exception taken on that ground until after the trial in the lower court.

3. While, on appeal to the district court, the plaintiff must prosecute the same cause of action as in the court of original jurisdiction, yet, in drafting his petition, he is not confined to the allegations contained in his pleading in the court below, so long as the identity of the original cause of action is preserved.

4. Instructions will not be reviewed by this court where no exceptions were taken by the party complaining at the time the charge was read to the jury.

Error to district court, Douglas county; Irvine, Judge.

Action by David Fred against Henry Levi and another for breach of contract. Plaintiff had judgment, and defendants bring error. Affirmed.Chas. Offutt, for plaintiffs in error.

Slabaugh, Lane & Rush, for defendant in error.

NORVAL, J.

This was an action for damages for breach of contract, brought by David Fred against Henry Levi and Davis Skolinkowski, before a justice of the peace. From a judgment in plaintiff's favor the defendants appealed to the district court, where Fred obtained a judgment against the defendant Skolinkowski. After the selection of the jury in the district court, plaintiff was permitted to file an amended petition, and this ruling of the court is assigned as error. It is insisted by counsel for plaintiffs in error that the amended petition introduced a new and different cause of action from that tried in the justice court. The principle has been frequently stated in the decisions of this court that a party has a right to have the action tried on the same issues as in the court from which the appeal was taken. But this is a right that can be waived. The objection, to be available, must be made at the proper time. The defendants below did not at the time state any ground of objection to the filing of the amended petition, but simply excepted to the ruling being made. It was in the motion for a new trial that complaint was first made that the issues had been changed. A party will not be permitted to wait until he ascertains that the verdict is against him, and then urge that the identity of the issues was not preserved on appeal. Fairness to the trial...