Salisbury v. Berry Motor Co., No. 27942.

• Court: Supreme Court of Nebraska
• Writing for the Court: EBERLY
• Citation: 122 Neb. 605,241 N.W. 86
• Decision Date: 19 February 1932
• Docket Number: No. 27942.
• Parties: SALISBURY ET AL. v. BERRY MOTOR CO. ET AL.

122 Neb. 605
241 N.W. 86

SALISBURY ET AL.
v.
BERRY MOTOR CO. ET AL.

No. 27942.

Supreme Court of Nebraska.

Feb. 19, 1932.

[241 N.W. 87]

Syllabus by the Court.

1. A “defect of parties” means an absence of necessary parties, and the objection to a pleading that there are too many parties, or unnecessary parties, cannot be raised by a demurrer on the ground that there is “a defect of parties defendant.”

2. Instruction given by the trial court, set out in part in the opinion, held erroneous.

Appeal from District Court, Dawes County; Meyer, Judge.

Action by George Salisbury, revived in the name of Harry B. Salisbury and others, heirs at law and successors in interest of George Salisbury, deceased, against the Berry Motor Company, a copartnership consisting of Leo Berry and another, and others. From an adverse judgment, named defendant appeals.

Reversed and remanded.

Nichols & Johnson, of Chadron, and W. M. Elmen, of Lincoln, for appellant.

W. P. Rooney, of Hot Springs, S. D., and Chas. A. Fisher and Allen G. Fisher, both of Chadron, for appellees.

Heard before GOSS, C. J., DEAN, EBERLY, and PAINE, JJ., and REDICK, District Judge.

EBERLY, J.

This is an action at law by George Salisbury, as plaintiff, against the Berry Motor Company, a copartnership consisting of Leo Berry and Lyle Berry, Leo Berry and Lyle Berry, defendants, on an alleged oral contract of employment at a definite wage. To the amended petition of plaintiff the defendant Leo Berry demurred on the grounds: First, that the petition disclosed that there was “a defect of parties defendant;” and, second, that it did not allege facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant then filed a pleading containing an answer and cross-petition, the allegations of which were traversed by plaintiff's reply. There was a trial to a jury resulting in a verdict against the defendant Leo Berry in a sum stated, a finding for plaintiff on defendant's cross-petition, and judgment was entered thereon. From the judgment overruling his motion for a new trial, the defendant Leo Berry appeals.

[1][2] The first assignment of error here presented challenges the correctness of the trial court's ruling upon the demurrer. So far as the general demurrer is concerned, it is of course waived by the subsequent answer of the demurrant. It is insisted, however, that the demurrer for “misjoinder of parties defendant” should have been sustained. An inspection of the record discloses,...