Rea v. Bishop

• Decision Date: 06 June 1894
• Citation: 41 Neb. 202,59 N.W. 555
• Parties: REA v. BISHOP ET AL.
• Court: Nebraska Supreme Court

41 Neb. 202

59 N.W. 555

REA

v.BISHOP ET AL.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

1. The plaintiff alleged the payment to a third person of specific sums of money for the benefit and at the request of the defendant. The answer made no denial of the allegations of the petition, but pleaded insanity as a defense. Held, that under this state of the issues the defendant was required to first introduce testimony, and was entitled to the opening and close of the case.

2. The defense of insanity may be interposed to an action upon a contract without restoring what the insane person received thereunder, in cases where the ability does not remain of restoring what was received, in specie.

3. Instructions will not be reviewed unless the record discloses that exceptions were taken thereto; and, where error is assigned upon the refusal of a group of instructions en masse, they will be considered no further than to ascertain that some one of the group was properly refused.

Error to district court, Saunders county; Marshall, Judge.

Action by D. W. Rea against Presley Bishop and Jennie Bishop, as guardian of Presley Bishop. Judgment for defendants, and plaintiff brings error. Affirmed.

Robbins & Babcock and Good & Good, for plaintiff in error.

J. R. & H. Gilkeson, for defendants in error.

IRVINE, C.

The plaintiff in error sued the defendants in error to recover three sums of money: The first, on a promissory note for $102 alleged to have been executed by Bishop to one Harris, and signed by plaintiff as surety, and which plaintiff paid; the second, $10 in payment of a livery bill at Bishop's request; and the third, $9 paid to the county judge at the request of Bishop. The petition alleged that, since the transactions, Bishop had been adjudged insane, and his guardian was made a party defendant. The guardian answered for herself and Bishop, not denying any of the facts stated in the petition, but alleging that, at the time of all of the transactions, Bishop was insane, and that the plaintiff knew that fact when he incurred the obligation upon the note, and paid the two sums of money. The reply was practically a denial of these allegations.

Error is assigned upon the court's permitting to the defendants the opening and close of the case. An inspection of the record does not disclose who made the opening statement to the jury. The objection was taken to the court's permitting the defendants first to introduce evidence. Upon this subject, section 283 of the Code of Civil Procedure provides: “When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise direct: First. The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it. * * * Third. The party who would be defeated, if no evidence were given on either side must first produce his evidence; the adverse party will then produce his evidence. * * * In the argument the party required first to produce his evidence shall have the opening and conclusion.” The whole of plaintiff's petition was practically admitted by the answer. The issues were only those relating to Bishop's sanity. Under this state of the pleadings, if no evidence had been introduced, judgment would have gone for the plaintiff; and the court therefore correctly gave to the defendant the opening and close.

The principal question discussed is as to the liability of an insane person upon his contracts, when made, without fraud or deception, with one not aware of his insanity. This argument is, of course, based upon the instructions. The record does not show that any exceptions were taken to the instructions given by the court; and they cannot, therefore, be...