Schmid v. Schmid

• Decision Date: 20 September 1893
• Citation: 56 N.W. 207,37 Neb. 629
• Parties: SCHMID v. SCHMID.
• Court: Nebraska Supreme Court

37 Neb. 629

56 N.W. 207

SCHMID

v.SCHMID.

Supreme Court of Nebraska.

Sept. 20, 1893.

Syllabus by the Court.

1. To obtain a review upon error of matters occurring upon a trial in the district court, a motion for a new trial must have been made in that court, but, in the absence of such a motion, this court will examine the question as to whether the petition states a cause of action.

2. A petition alleging an agreement within the statute of frauds, but not alleging that such agreement was in writing, is sufficient after judgment.

Commissioners' decision. Error to district court, Saunders county; Marshall, Judge.

Action by Regina Schmid against Frederick Schmid to obtain a reconveyance of land alleged to have been conveyed to defendant in trust. Plaintiff had decree, and defendant brings error. Affirmed.T. B. Wilson and Lamb, Ricketts & Wilson, for plaintiff in error.

Geo. I. Wright and M. B. Reese, for defendant in error.

IRVINE, C.

This case was originally brought into this court by appeal, but, the transcript not having been filed within the period prescribed by law, upon motion the appeal was dismissed, and the appellant given leave to file a petition in error. No motion for a new trial was made in the trial court, and that fact precludes us from an examination of any of the questions raised, except those which arise upon the assignment of error that the petition does not state facts sufficient to constitute a cause of action.

The petition alleges that the plaintiff, Regina Schmid, on August 23, 1887, was the owner of certain land described in the petition, and that the defendant, Frederick Schmid, the son of Regina, on said day, by the use of certain representations, unnecessary to here set forth, but which are alleged to have been false and fraudulent, induced Regina to convey to him said lands “upon the express understanding and agreement that said Frederick Schmid should thereafter at any time, upon request by the said Regina Schmid, her heirs, legal representatives, or assigns, reconvey said premises to said Regina Schmid, her heirs or assigns, or to such person or persons as she should designate, and should hold, use, and enjoy said premises * * * in trust for the said Regina Schmid, her heirs and assigns; the said conveyance of said plaintiff, Regina Schmid, to the said Frederick Schmid being for no consideration whatever, except the trust aforesaid.” It is alleged further that defendant now denies the trust. After stating...