Lucas v. Lucas
| Decision Date | 14 June 1940 |
| Docket Number | 30801. |
| Citation | 292 N.W. 729,138 Neb. 252 |
| Parties | LUCAS v. LUCAS ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When a defendant moves for a dismissal at the close of plaintiff's evidence, he thereby admits plaintiff's evidence to be true, together with every conclusion which fairly and reasonably may be drawn therefrom.
2. Where a trial court in an equity case erroneously dismisses the suit at the close of plaintiff's evidence, this court ordinarily will remand the case for a new trial.
3. Where a defendant pleads a counterclaim, and upon the conclusion of plaintiff's evidence moves for and procures a dismissal of plaintiff's cause of action, he thereby waives his counterclaim .
4. But where it appears that such dismissal of plaintiff's cause of action was erroneous, the parties are entitled to be placed in the same position they were in before the error occurred.
Appeal from District Court, Douglas County; Dineen, Judge.
Suit in equity by Alice C. Lucas, an alleged incompetent person through her next friend and guardian, Kenneth C. Sutherland against Arthur W. Lucas and Theresa Lucas for an accounting of certain moneys alleged to have been fraudulently obtained from her, wherein defendants filed a counterclaim. From a judgment dismissing the plaintiff's cause of action, the plaintiff appeals.
Judgment dismissing action as to Theresa Lucas affirmed, and, as dismissing the cause of action of Arthur W. Lucas, reversed and cause remanded for a new trial as to him.
Bernard R. Stone, of Omaha, and Kenneth C. Sutherland, of Fremont, for appellant.
Barney W. Gill, of Omaha, for appellees.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ.
This is a suit in equity brought by Alice C. Lucas, an alleged incompetent person, through her next friend, against Arthur W. Lucas and Theresa Lucas, son and daughter-in-law, respectively, of the plaintiff, for an accounting of certain moneys alleged to have been fraudulently obtained from her. At the close of plaintiff's testimony both defendants moved for a dismissal of plaintiff's cause of action. The motions were sustained and plaintiff appeals.
The record discloses that in 1934 plaintiff received the proceeds of two mortgages owned by her in the total amount of $900, which were turned over to the defendant Arthur W. Lucas. In October, 1936, plaintiff received the proceeds of a judgment for personal injuries sustained in an accident in the amount of $4,315, which were also delivered to Arthur W. Lucas. It is established that Arthur W. Lucas, on and after October 16, 1936, was speculating on the stock market, with the result that the moneys in question were lost. The record further shows that, after the moneys were lost, defendants placed the plaintiff in the Douglas County Poor Farm, where she has since been cared for at the expense of the county.
The evidence shows that plaintiff had lived with Arthur W. Lucas for several years and, at the time of the filing of the petition in this case in 1938, she was more than 80 years of age. It is contended that she was not capable of handling her own business affairs and, as a result thereof, defendants fraudulently procured plaintiff's money and converted it to their own use.
Defendants pleaded in their answer that plaintiff was engaged in speculating in stocks as a partner of Arthur W. Lucas. An instrument designated " joint account" appears in the record, purporting to have been signed by plaintiff and Arthur W. Lucas. It is provided in the " joint account," among other things, that all securities or proceeds in the hands of the brokerage company to whom the instrument was given shall upon the death of one belong to the other in so far as the company was concerned.
Plaintiff testifies that she repeatedly told Arthur W. Lucas she would have nothing to do with the " board of trade" because of the unfortunate experiences of her husband in making similar speculations. She further testifies that she did sign some papers at the request of Arthur W. Lucas and, upon inquiry as to what they were, his answer was: " Never you mind, never you mind." She further testifies to similar answers to inquiries concerning the whereabouts of her money. She also says that she never knew that Arthur W. Lucas was using her funds until Byron Lucas, a grandson, informed her that " Uncle Arthur was dealing on the board of trade with my money."
At the close of plaintiff's testimony, defendants severally moved for a dismissal, and the motions were sustained. An examination of the record discloses that a case was not made against Theresa Lucas, and that the trial court did not err in sustaining the motion as to her. An entirely different question is raised, however, as to the defendant Arthur W. Lucas.
This being an appeal in an equity case, it is to be tried de novo on the record made in the district court. Dappen v Weber, 106 Neb. 812, 184 N.W. 952, 187 N.W. 230.It is also the rule when defendant...
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