Linville v. Kowalski

• Decision Date: 12 March 1948
• Docket Number: 32375.
• Citation: 31 N.W.2d 281,149 Neb. 402
• Parties: LINVILLE et al. v. KOWALSKI et al.
• Court: Nebraska Supreme Court

31 N.W.2d 281

149 Neb. 402

LINVILLE et al. v. KOWALSKI et al.

No. 32375.

Supreme Court of Nebraska

March 12, 1948

Syllabus by the Court.

1. When a plaintiff invokes a remedy in law and by amended petition invokes a remedy in equity, the identity of the cause of action being preserved; the defendant joins issue and affirmatively seeks an equitable remedy; and the cause is tried and decree entered in equity; the defendant cannot thereafter successfully complain that the form of the action was changed from one in law to one in equity.

2. Where a party, having the right to object, voluntarily submits to the jurisdiction of a court of equity, the cause will be retained for trial on its merits and the proper relief awarded.

Theodore L. Kowalski, pro se, and Philip R. Kneifl, both of Omaha, for appellants, cross-appellees.

Winters & Winters, of Omaha, for appellees cross-appellants.

Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ and BARTOS and JACKSON, District Judges.

SIMMONS Chief Justice.

This action originated as one in ejectment. It involves the right of possession of one part of a duplex residence property sold to plaintiffs by the defendants. By amended petition plaintiffs sought possession by praying for a determination of the rights of the parties and for specific performance of an alleged agreement to surrender possession. Defendants answered and cross-petitioned, praying for specific performance of the contract as they alleged it to be giving them the right to retain possession, or, in the alternative for a reconveyance and accounting, and for equitable relief. Trial was had resulting in a judgment for the plaintiffs. Defendants appeal. Plaintiffs cross-appeal as to the amount of a money recovery. We affirm the judgment of the trial court.

Defendants' first argued assignment of error is that the court erred in transferring the cause from the law to the equity docket, and permitting a hearing upon the cause in equity, contending that the cause of action remained substantially the same.

It appears that following the filing of the amended petition plaintiffs moved to transfer the cause from the law to the equity docket. The motion was granted. No resistance to the motion nor objection to the order granting it is shown. Defendants answered and cross-petitioned, without raising the issue now presented, and clearly invoked the equity jurisdiction of the court. Trial was had to the court without objection. During the trial defendants treated the issues as calling for equitable relief. This question was raised first in the motion for a new trial, and then only to the extent of alleging error in transferring from the one docket to the other. Here the defendants' contention is that they are entitled to equitable relief and state that we have jurisdiction to try this case de novo on the merits.

In Scroggin v. Johnston, 45 Neb. 714, 64 N.W. 236, plaintiff was given permission to change his petition from one in ejectment to one in equity. The defendants set up matters for equitable cognizance and demanded equitable relief. The cause was tried as one in equity. We held that the defendants, so pleading and trying the cause, could not thereafter successfully complain that the form of the action was changed. The form of action goes to the remedy, not to the cause. The identity of the cause of action was preserved. The trial court's order was not erronous. See Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302, L.R.A. 1917E, 1103.

The defendants' next contentions are that the court decreed performance of a contract which the parties had not made, and that in any event the plaintiffs have an adequate remedy at law. These contentions require a review of the evidence and the record.

The evidence shows the following factual situation. The defendants are husband and wife. Reference hereinafter to the defendant's testimony means that of defendant Mr. Kowalski. His wife did not testify and it appears her participation herein was to sign the papers involved.

On February 24, 1945, the plaintiffs signed an instrument on a printed form directed to a realty company, whereby they agreed to purchase the real estate involved in this action for $11,500. It also provided for a deposit of $200 and (inserted in longhand) 'Balance cash on date of closing subject to a loan of $8,500. subject to owner having a lease for 6 months at $45 per month renewable at his option and subject to O. P. A. ruling and regulation.' This instrument included a receipt from the realty company for the $200, which contains this clause in print: 'In the event of the refusal or failure of the purchaser to consummate the purchase, the owner or vendor may, at his option, retain the said money hereby paid, as liquidated damages for such failure to carry out said contract of sale.' Also a part of said instrument is an undated acceptance of the proposal signed by the defendants. It appears to have been signed about the date of the other executions in the instrument. It further appears the parties understood that the reference to the $8,500 loan was to a loan which the plaintiffs had to secure to make the purchase price. The plaintiffs negotiated a loan for an amount less than $8,500 but sufficient to enable them to make the purchase price payment. The loan had been approved and the transaction was ready for closing on March 3, 1945. The parties met at the loan office.

The defendants presented a lease for six months renewable at defendants' option. Plaintiffs testified that they refused to sign the lease and refused to complete the transaction under that condition. Defendant testified that they told him they could not get a loan with that sort of a lease on the property, and that the loan company required a lease for a definite period of time. The representative of the loan company denied that any such requirement was made, and testified that the loan had been approved prior to the meeting of the parties on March 3. Further negotations were had with the result that on March 6 1945, the parties again met at the loan company, and executed and delivered an instrument on a printed form entitled 'City...