Schmidt v. Henderson

• Decision Date: 09 May 1947
• Docket Number: 32200.
• Parties: SCHMIDT v. HENDERSON. SAME v. NEVILLE et al.
• Court: Nebraska Supreme Court

27 N.W.2d 396

148 Neb. 343

SCHMIDT v. HENDERSON.

SAME v. NEVILLE et al.

No. 32200.

Supreme Court of Nebraska

May 9, 1947

Syllabus by the Court.

1. The question of whether or not a party is entitled to a trial by jury is determinable by the nature of the case at its inception.

2. An action for an accounting may under one set of circumstances find its remedy in an action at law and under another find it within the jurisdiction of equity.

3. The basic reason for equitable jurisdiction in an action for an accounting is inadequacy of remedy at law.

4. Equity jurisdiction is not available for ordinary cases of mutual accounts between creditor and debtor but it is available where intimate or confidential relations of the parties are involved.

5. Where, by the terms of a lease, rent is reserved in a share of the crops, the landlord and tenant are tenants in common of growing crops.

6. An action in equity for an accounting is triable de novo on appeal to this court.

7. Every contract for the leasing of land for a longer period than one year is void unless the contract or some note or memorandum thereof is in writing and signed by the party by whom the lease is made.

8. A court of equity has power to compel specific performance of an oral lease for more than one year where there has been part performance.

9. An oral lease for only one year but entered into prior to the beginning of the term is void under the statute.

10. An oral lease for one year entered into before the commencement of the agreed term, though void, becomes valid on entry into possession at or after the commencement of the agreed term.

11. A lease of property held in common does not prevent partition. Partition of such property is subject to the rights of the lessee.

12. The action of forcible entry and detainer is a statutory proceeding and original jurisdiction thereof is conferred on justices of the peace, county courts, and municipal courts.

13. District courts are without original jurisdiction in actions of forcible entry and detainer.

14. Consent of parties cannot confer upon a court jurisdiction of the subject matter of an action.

George J. Marshall, of Riverton, for appellant.

Clifford H. Phillips, of Red Cloud, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, YEAGER, CHAPPELL, and WENKE, JJ.

YEAGER, Justice.

This was an action at its inception by George H. Schmidt, plaintiff against Harold Henderson, defendant, in one cause of action. Later by amended and supplemental petition it became an action in three causes of action. It comes here in three causes of action. The first cause of action was for reformation of a lease, the second was for an accounting of rents, and the third on its face was for a writ of assistance in favor of plaintiff and against the defendant. By title appearing on the transcript, the bill of exceptions, and the briefs, it appears as George H. Schmidt, plaintiff, v. Harold Henderson defendant, consolidated with Minnie Schmidt, plaintiff, v Matilda Wentz Neville et al., defendants. When or how the two cases became consolidated is not made clear.

The plaintiff at the inception of the action is the appellee and the defendant is the appellant. These two parties will be hereinafter referred to as plaintiff and defendant.

The defendant by his pleadings conceded the right to reformation and the first cause of action was dismissed by the court, but for the purposes of the case the lease was treated by the parties as having been reformed.

To the second and third causes of action the defendant filed answer. He also filed a cross-petition wherein he sought an accounting against the plaintiff.

Trial was had on the second and third causes of action, and on the second cause of action and the cross-petition the court found that defendant had failed to account for crop rents of the value of $543.76 and 42 bushels of barley and that plaintiff was indebted to defendant in the amount of $224.20. In accordance with the finding the court rendered judgment in favor of plaintiff and against defendant in the amount of $319.56 and 42 bushels of barley or the value thereof in Red Cloud Nebraska, on the 26th day of April 1946. On the third cause of action, or presumably so, a writ of assistance was allowed. From the judgment on these two causes of action the defendant has appealed.

In order that an understanding may be had of the true situation presented by this record it becomes necessary, before proceeding with a discussion of the stated grounds of reversal, to outline the ramifications of this case, some of which are exceedingly strange, before it came to this court.

In 1944 plaintiff was agent for Minnie Schmidt and others who were owners as tenants in common of the northeast quarter of Section 23, Township 3, North, Range 10, West of the 6th Principal Meridian, in Webster County, Nebraska. On February 12, 1944, plaintiff, as agent, leased this land to the defendant for one year from March 1, 1944, to March 1, 1945, and on December 2, 1944, he again leased the land to the defendant. The second lease period was from March 1, 1945, to March 1, 1946. Both leases were in writing. The agreed rental to be paid to the extent necessary to set it forth here was one-third of all grain delivered to market at the expense of the lessee, for pasture $2 an acre, and in the case of the planting of cane the lessor was to receive one acre of corn for each three acres of cane or $5 for each acre of cane planted.

In October of 1945 Minnie Schmidt instituted action for partition of the described land. That case was docketed as case No. 5278. The land was sold to plaintiff herein pursuant to decree in that case and the sale was confirmed by the court on April 2, 1946. The defendant herein was a defendant in that action as tenant in possession. The effect of the decree of partition was to declare that he had no interest in the title to the land but the decree in nowise adjudicated his right to possession as occupying tenant.

Plaintiff filed his original petition herein on March 1, 1946, wherein he asked for an accounting of rents on the two leases hereinbefore mentioned. This was before confirmation of sale. This case was docketed as case No. 5293. An answer and cross-petition was filed by defendant and a trial had on issues joined. Apparently a decree or judgment was rendered but it was set aside on motion for new trial which was granted. On May 15, 1946, an amended and supplemental petition was filed bearing the consolidated title under which the case comes to this court. That petition contained but one cause of action.

Then on May 25, 1946, a second amended and supplemental petition was filed. This is the petition which comes to this court in three causes of action.

On April 16, 1946, plaintiff filed an application in case No. 5278 for a writ of assistance the purpose of which was to cause defendant and Hulda Henderson to vacate the real estate in question. The status of Hulda Henderson is not described. An order to show cause why the writ should not be allowed was issued and served. On April 25, 1946, the defendant answered in writing the order to show cause. No action is shown to have been taken on the order to show cause and the response thereto until the trial herein.

Apparently it was after April 25, 1946, and before May 15, 1946, that cases No. 5278 and No. 5293 were consolidated since the third cause of action in the petition on which the case before us was tried was substantially an application for a writ of assistance to carry into effect that part of the decree in case No. 5278 in effect declaring that the defendant had no interest in the lands in question.

In answer to the third cause of action the defendant alleged that he was entitled to retain possession under an oral lease for one year from March 1, 1946, which by reason of part performance by him was valid and binding upon the plaintiff. The same showing as was made in the answer to the third cause of action was made in response to the order to show cause on the application for writ of assistance in case No. 5278.

Notwithstanding the unusual and extraordinary steps which have been taken in this litigation no procedural attack has been made upon any of them.

On the trial the first cause of action was dismissed; on the second cause of action and the cross-petition which pertained thereto a judgment was rendered in favor of plaintiff for $319.56 and 42 bushels of barley or the value thereof in Red Cloud, Nebraska, on the 26th day of April 1946; and apparently no disposition was made of the third cause of action in case No. 5293, but it appears that a writ of assistance was ordered in case No. 5278.

It should be pointed out here that the defendant made a demand for a jury trial of the second cause of action.

The defendant assigns as grounds for reversal (1) that the judgment on the second cause of action is not sustained by the evidence, (2) that the judgment on the second cause of action is contrary to law, (3) that the court erred in refusing to grant a jury trial on the second cause of action, (4) that the court erred in not compelling the real parties in interest to appear in the third cause of action, (5) that the judgment on the third cause of action is not supported by sufficient evidence, (6) that the judgment on the third cause of action is not sustained by law, and (7) that the court decided both causes of action on secondary evidence when the best evidence was produced.

The assignment relating to real party in interest requires no further discussion beyond the statement that this question was never presented for consideration by the pleadings and at no time before the filing of his motion for a new trial was it presented to ...