Linville v. Kowalski

• Citation: 31 N.W.2d 281,149 Neb. 402
• Decision Date: 12 March 1948
• Docket Number: No. 32375.,32375.
• Parties: LINVILLE et al. v. KOWALSKI et al.
• Court: Supreme Court of Nebraska

149 Neb. 402
31 N.W.2d 281

LINVILLE et al.
v.
KOWALSKI et al.

No. 32375.

Supreme Court of Nebraska.

March 12, 1948.

Appeal from District Court, Douglas County; Chase, Judge.

Action in ejectment by Robert O. Linville and another against Theodore L. Kowalski and another, wherein the plaintiffs filed an amended petition seeking a determination of rights of parties and specific performance of an alleged agreement to surrender possession, wherein the defendants filed a cross-petition. Judgment for plaintiffs, and defendants appeal and plaintiffs cross-appeal.

Affirmed.

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.

[31 N.W.2d 282]

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...