Marvin v. Weider
| Court | Supreme Court of Nebraska |
| Writing for the Court | PER CURIAM. |
| Citation | 48 N.W. 825,31 Neb. 774 |
| Parties | MARVIN v. WEIDER. |
| Decision Date | 06 May 1891 |
MARVIN
v.
WEIDER.
Supreme Court of Nebraska.
May 6, 1891.
1. In a district where there are two judges, a demurrer to an amended petition was overruled by Judge B., and leave given the defendant to answer, which he did. Afterwards the cause came on for trial before Judge A., who sustained an objection to the introduction of any evidence, on the ground that the petition failed to state a cause of action. Held error; that the ruling of one judge upon a matter directly involved in the case is binding upon the other, unless for cause it is set aside.
2. Petition, liberally construed, held to state a cause of action.
3. Questions relating to the sufficiency of the petition should be determined before the cause comes on for trial before a jury; and, where no objection is raised until that time, petition will, if possible, be sustained.
Error to district court, Pawnee county; APPELGET, Judge.
Story & Story, for plaintiff in error.
G. M. Humphrey, for defendant in error.
PER CURIAM.
This action was brought under section 40, c. 4, Comp. St., giving a lien upon the offspring of certain animals. A demurrer to the amended petition was overruled by Judge BROADY, and leave was given the defendant to answer. The defendant thereupon filed an answer, denying the facts stated in the petition, and pleading that such facts failed to state a cause of action. The cause afterwards came on for trial before Judge APPELGATE, who, after the jury had been impaneled and sworn, sustained an objection to the introduction of any testimony, on the ground that the petition failed to state a cause of action. This is a practice that cannot be tolerated. There are two judges in the first district, and a ruling made by one must be respected by the other, otherwise confusion and uncertainty will be the result. The action is brought against the defendant, who, it is alleged, purchased the mares and colts on which the plaintiff had a lien, and that he secreted the colts so that they could not be found, whereby the plaintiff was deprived of his lien. It is also alleged that the defendant knew of the existence of this lien when he purchased the property. Liberally construed, the petition states a cause of action, although it is probable that there is defect of parties defendant; the principal debtor being a necessary party. No objection is made on this ground, however, and it is at most a defect of parties, which, in a proper case,...
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Dickinson v. Lawson, 28649.
......658] petition should be determined before the cause comes on for trial before a jury.” Marvin v. Weider, 31 Neb. 774, 48 N. W. 825. [3] This court is committed to the rule: “Where an objection that a petition does not state a ......
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Drainage Dist. No. I of Lincoln Cnty. v. DiSt, 31075.
......Baker, 61 Neb. 841, 86 N.W. 692. [298 N.W. 132] 2. Syllabus 1 in Marvin v. Weider, 31 Neb. 774, 48 N.W. 825, is overruled. Syllabus 1 in Perry v. Baker, 61 Neb. 841, 86 N. W. 692;Tiernan v. Miller & Leith, 69 Neb. 764, 96 ......
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Follmer v. State, 16,931
...at which they were made, but the contention is that after the term of court at which the order is made it becomes final. Marvin v. Weider, 31 Neb. 774, 48 N.W. 825, is cited as authority for this position, and perhaps some of the language there used might suggest such a conclusion, but that......
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Follmer v. State, 16,931.
...at which they were made, but the contention is that after the term of court at which the order is made it becomes final. Marvin v. Weider, 31 Neb. 774, 48 N. W. 825, is cited as authority for this position, and perhaps some of the language there used might suggest such a conclusion, but tha......