Reams v. Sinclair

• Decision Date: 02 January 1915
• Docket Number: No. 17873.,17873.
• Citation: 150 N.W. 826,97 Neb. 542
• Parties: REAMS v. SINCLAIR.
• Court: Nebraska Supreme Court

97 Neb. 542

150 N.W. 826

REAMS

v.SINCLAIR.

No. 17873.

Supreme Court of Nebraska.

Jan. 2, 1915.

Syllabus by the Court.

In a law action, if the parties submit their case for the determination of the court upon defendant's motion to direct a verdict in his favor, a verdict so directed and judgment thereon will be res judicata of the issues in the case.

Upon ruling in defendant's favor upon such motion, the court may, in its discretion, allow the plaintiff, upon his request, to introduce further evidence, and will do so when it appears that justice requires such action.

If, upon such motion, the plaintiff makes no request to be allowed to proceed further in the case, but appeals to this court from the judgment entered upon such verdict, he will not afterwards be allowed to litigate the issue involved in such action.

In an action of ejectment, the plaintiff must allege and prove a legal title and right of possession.

If an action in ejectment is decided for defendant because a writing relied upon by plaintiff as a conveyance in his chain of title is construed to be insufficient for that purpose, such judgment will not be a bar to a subsequent action in equity in which it is alleged and proved that the said writing transferred to the grantee named therein an equitable right to the land in question, and that such grantee duly conveyed his interest in the land to the plaintiff.

Appeal from District Court, Franklin County; Perry, Judge.

Action by John F. Reams against Albert W. Sinclair. From a judgment for plaintiff, defendant appeals. Affirmed.

W. C. Dorsey, of Bloomington, for appellant.

George J. Marshall, of Riverton, and Bernard McNeny, of Red Cloud, for appellee.

SEDGWICK, J.

This plaintiff began an action in ejectment against the defendant in the district court for Franklin county. When the evidence was completed, the trial court directed a verdict for the defendant. Upon appeal to this court the judgment of the trial court was affirmed. Reams v. Sinclair, 88 Neb. 738, 130 N. W. 562, Ann. Cas. 1912B, 989. Afterwards the plaintiff began this action in equity in the district court for Franklin county to establish and quiet his title in the same land. The trial court found the issues in favor of plaintiff, and entered a decree quieting his title, and the defendant has appealed.

[1] The defense relied upon is the former adjudication in the ejectment action. In that action, as above indicated, the parties proceeded to trial, and, when the evidence was in and the parties had rested, the court, upon the defendant's motion, directed the jury to find a verdict in the defendant's favor. There is considerable discussion in the briefs and many authorities are cited upon the question whether a judgment upon an involuntary nonsuit is a bar to another action for the same cause and between the same parties. The seeming conflict in the authorities upon this point is apparently largely due to changes from the common-law practice introduced by the Code procedure, and also to the different provisions in the Codes of the various states. Our Code provisions are plain and simple, and we have not generally found difficulty in applying them. Section 7654, Rev. St. 1913, provides:

“An action may be dismissed without prejudice to a future action: First--By the plaintiff, before the final submission of the case to the jury. * * * Second--By the court where the plaintiff fails to appear at the trial. Third--By the court for want of necessary parties. Fourth--By the court on the application of some of the defendants where there are others whom the...