Orcutt v. McNair
| Decision Date | 06 November 1902 |
| Citation | 3 Neb. [Unof.] 608,92 N.W. 200 |
| Parties | ORCUTT v. MCNAIR. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Baxter, Judge.
“Not to be officially reported.”
Action by Elizabeth McNair against Clinton Orcutt. Judgment for plaintiff, and defendant brings error. Affirmed.Charles W. Haller, for plaintiff in error.
Thomas & Nolan, for defendant in error.
This suit was brought to recover a balance claimed to be due from the plaintiff herein to the defendant in error, Elizabeth McNair, on the purchase price of a lot in the city of South Omaha sold to the plaintiff at the agreed price of $900; that only part payment had been made to her,--and prayed for a judgment for the balance alleged to be due her therefor. Plaintiff herein, by his answer, first denied that he purchased the lot at the agreed price of $900; admitted that he traded with defendant for the lot in question; and alleged that he had paid her, by way of cash and other items, the full price of the same. Defendant, by her reply, denied the allegations of the answer. On these issues the cause was tried to a jury, and resulted in a verdict and judgment for defendant in error for the sum of $135.35. From this judgment, plaintiff herein brought the case to this court.
No question is raised as to the pleadings or the proceedings in the case, and the only errors complained of are those alleged to have occurred upon the trial. It is contended that the verdict is not sustained by the evidence, and that the court erred in giving and refusing to give certain instructions to the jury. These are the only questions involved in this controversy. The defendant in error, among other points discussed in her brief, objects to the consideration of any of the plaintiff's assignments, because his petition does not allege that the court erred in overruling his motion for a new trial. We find on examination of the record that the petition lacks that essential averment, and that no leave to amend has been asked for or obtained. This being the condition of the record, errors alleged to have occurred on the trial will not be considered. James v. Higginbotham, 60 Neb. 203, 82 N. W. 625;Gandy v. Cummins (Neb.) 89 N. W. 777; Gregory v. Leavitt, Id. 764; Achenbach v. Pollock (Neb.) 90 N. W. 304. This rule has become the settled law of this state, and the only exception to it is where the question has not been raised or called to our...
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