Marvin v. Weider
| Decision Date | 06 May 1891 |
| Citation | 48 N.W. 825,31 Neb. 774 |
| Parties | WILLIAM MARVIN v. GEORGE WEIDER |
| Court | Nebraska Supreme Court |
ERROR to the district court for Pawnee county. Tried below before APPELGET, J.
REVERSED AND REMANDED.
Story & Story, for plaintiff in error.
G. M. Humphrey, contra.
This action was brought under section 40, chapter 4, Compiled Statutes, giving a lien upon the offspring of certain animals. A demurrer to the amended petition was overruled by Judge Broady, and leave 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 Appelget, 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, would not defeat a recovery.
Questions relating to the sufficiency of a petition should be determined before a jury is called and witnesses subpoenaed in the case, thus adding greatly to the costs and expenses of the trial. Where objections are not made until the hearing, a petition will, if possible, be sustained, and the cause proceed to judgment.
The judgment of the district court is reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED.
To continue reading
Request your trial