Linton v. Cooper

• Citation: 75 Neb. 167,106 N.W. 170
• Parties: LINTON v. COOPER ET AL.
• Decision Date: 06 December 1905
• Court: Nebraska Supreme Court

75 Neb. 167

106 N.W. 170

LINTON

v.COOPER ET AL.

Supreme Court of Nebraska.

Dec. 6, 1905.

Commissioners' Opinion. Department No. 1. Error to District Court, Douglas County; Sears, Judge.

Action by Adolphus F. Linton against John Whitaker Cooper and others. Judgment for defendants and plaintiff brings error. Affirmed.John O. Geiser, for plaintiff in error.

Chas. A. Goss, for defendant in error.

AMES, C.

This is a proceeding in error to review a judgment of the district court sustaining a general demurrer to the petition of the plaintiff, and dismissing the action with costs, for the specific reason that it appears upon the face of the petition that the cause of action therein set forth was barred by the statute of limitations at the time the suit was begun.

The purport of the petition is that in January, 1889, the plaintiff delivered to the defendants certain shares of corporate stocks as a pledge to secure the repayment of a sum of money at that time borrowed by the plaintiff from the defendants, and that in May of said year the defendants converted said shares of stock to their own use, to the damage of the plaintiff in a sum equal to their alleged value, for which sum and interest from the last-named date he prays judgment. But the plaintiff seeks to evade the bar of the statute, apparent from the above-recited facts, by alleging that in 1899, in an action then pending in the district court for Douglas county, the same facts had been pleaded by the plaintiff as a defense to an action for the foreclosure of a certain mortgage that had been executed to secure the same loan of money, and in which a decree of foreclosure and sale was rendered, herein it was adjudged that upon payment and satisfaction of said decree the plaintiff herein should be entitled to a return of said corporate shares, and that full payment and satisfaction of said decree had been made. If the decree had concluded with the adjudication just recited, we should have little doubt of the correctness of the plaintiff's contention, but, on the contrary, it proceeds in the next following paragraph to a final disposition of the matter in the following language: “The court expressly refuses to inquire into or adjudicate the rights of the respective parties in and to the shares of stock, and this decree is without prejudice to the rights of the Lintons, or either of them, to demand a return of said shares of San Sebastian Nitrate stock on payment or satisfaction of the...