Moores v. Jones

• Decision Date: 04 March 1903
• Citation: 93 N.W. 1016,4 Neb. [Unof.] 319
• Parties: MOORES v. JONES.
• Court: Nebraska Supreme Court

4 Neb. [Unof.] 319

93 N.W. 1016

MOORES

v.JONES.^a1

Supreme Court of Nebraska.

March 4, 1903.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Fawcett, Judge.

“Not to be officially reported.”

Action by Medora Allayne Jones against Frank E. Moores. Judgment for plaintiff, and defendant brings error. Affirmed.James H. Adams, for plaintiff in error.

J. C. Kinsler and J. H. McIntosh, for defendant in error.

POUND, C.

But two errors are argued; one that the evidence does not establish plaintiff's ownership of the note sued on, the other that the judgment recites it is to draw interest at 7 per cent. per annum. There is no assignment of error in overruling the motion for a new trial, so that the first point would not be before us if it had any merit. Gandy v. Cummins (Neb.) 89 N. W. 777;Achenbach v. Pollock (Neb.) 90 N. W. 304. But it has none. Plaintiff sues on a note given to her husband in her lifetime, which she received as a distributee of his estate. Aside from the presumption arising from her possession and production of the note, the evidence that it passed to her in due course of administration is full and complete, and there is nothing to the contrary. The other point is settled by section 4, c. 44, Comp. St.; Connecticut Mut. Life Ins. Co. v. Westerhoff, 58 Neb. 379, 78 N. W. 724, 79 N. W. 731, 76 Am. St. Rep. 101;Havemeyer v. Paul, 45 Neb. 373, 63 N. W. 932. The proceedings in error are without merit, and frivolous.

We recommend that the judgment be affirmed.

BARNES and OLDHAM, CC., concur.

PER CURIAM.

The conclusions reached by the Commissioners are approved, and, it appearing that the adoption of their recommendation will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

a1. Rehearing denied April 22, 1903.