Scott v. Spencer

CourtSupreme Court of Nebraska
Writing for the CourtPOST
Citation44 Neb. 93,62 N.W. 312
PartiesSCOTT v. SPENCER ET AL.
Decision Date20 February 1895

44 Neb. 93
62 N.W. 312

SCOTT
v.
SPENCER ET AL.

Supreme Court of Nebraska.

Feb. 20, 1895.



Syllabus by the Court.

1. This court may, under the provisions of section 144 of the Code, allow amendments in order to conform the pleadings to the facts proved in the trial court, provided such amendments do not change substantially the cause of action or defense.

2. But amendments will not be allowed, after judgment, which change substantially the nature of the action or defense.

3. The only means provided for the ascertainment by this court of the character of the evidence introduced before the district court is a bill of exceptions authenticated in the manner prescribed by law.


On rehearing. Denied.

For former report, see 60 N. W. 892.

[62 N.W. 312]

Drydon & Main and H. H. Wilson, for appellant.

Marston & Nevins, for appellee.


POST, J.

As intimated in the opinion heretofore filed in this case (60 N. W. 892), the proceeding below was one for the enforcement of a mechanic's lien against certain property in the city of Kearney, in which the appellant the Metcalf Cracker Company was alleged to have an interest. The answer was, in effect, a disclaimer of title by the defendant named, which alone appeals from a decree for the plaintiff, based upon a general finding in his favor. The argument of counsel for appellant when the cause was first submitted to us was directed to the merits of the controversy, but an examination of the record disclosed that the so-called “bill of exceptions” had not been authenticated in the manner prescribed by law in order to give it force or effect as such. The decree of the district court was accordingly affirmed on that ground, without reference to the issues presented by the pleadings. It is on this hearing practically conceded that the Metcalf Cracker Company has, according to the pleadings, no appealable interest, for the reason, as above shown, that the decree is for the enforcement of a lien against property as to which it has disclaimed title. However, in connection with the motion for a rehearing, counsel for the appellant submit an application for leave to amend its answer so as to conform to the issues actually tried. Accompanying said application are certain affidavits, including one by the presiding judge, to the effect that the cause was tried in the district court on its merits, and that the answer was therein construed, not as a disclaimer, but as putting in issue the validity of the alleged lien.

Our Code makes provision for amendment after judgment in certain cases, as follows: “The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party,

[62 N.W. 313]

or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto, by amendment.” Code Civ. Proc. § 144. Frequent constructions have been given the above provision, and its meaning as applied to the trial court is, we think, well understood. But in its application to this court, in proceedings brought here by petition in error or appeal, greater difficulty is encountered. The instances in which the rule of the statute has been invoked in favor of parties seeking to amend in this court are few, and will be noticed in the order reported. In Humphries v. Spafford, 14 Neb. 488, 16 N. W. 911, Lake, C. J., said: “We have no doubt whatever that amendment at this stage of the case is in harmony with section 144 of the Code, where the ends of justice seem to demand it.” The facts therein are not fully reported, and it does not appear whether the proofs were received without...

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11 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Brewer, 5 Tex. 566; Ry. Co. v. Bailey, 7 Ohio St. 88; Humphries v. Spafford, 14 Neb. 488; Bazzo v. Wallace, 16 Neb. 293; Scott v. Spencer, 44 Neb. 93; Darries v. Darries, 58 Mo. 222.) The receiver's compensation could not legally be allowed without notice to the plaintiffs in error, the par......
  • O'Neil v. Union Nat. Life Ins. Co., No. 33870
    • United States
    • Supreme Court of Nebraska
    • March 23, 1956
    ...a defense substantially different from those relied on at the original trial.' Nebraska cases cited in support are Scott v. Spencer, 44 Neb. 93, 62 N.W. 312; Peterson v. Lincoln County, 92 Neb. 167, 138 N.W. 122, Ann.Cas.1913E, 1309; Gadsden v. Thrush, 72 Neb. 1, 99 N.W. Only the case of Ga......
  • Perkins v. Butler Cnty.
    • United States
    • Supreme Court of Nebraska
    • February 20, 1895
    ...in place of the original creditors of the firm. This case is authority for holding that the mere fact that Chidester used the proceeds [62 N.W. 312]of the note in the construction of the courthouse would not entitle the plaintiffs to rank as partnership creditors. In Hayden v. Cretcher, 75 ......
  • Simms v. Andrews, No. 2121.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 3, 1941
    ...Romeyn v. Sickles, 108 N.Y. 650, 15 N.E. 698; Hensley v. Chicago, St. P., M. & O. Ry. Co., 126 Neb. 579, 254 N.W. 426; Scott v. Spencer, 44 Neb. 93, 62 N.W. In his seventh assignment of error, the Trustee asks: "In equity and good conscience, should the United States be granted equitable re......
  • Request a trial to view additional results
13 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Brewer, 5 Tex. 566; Ry. Co. v. Bailey, 7 Ohio St. 88; Humphries v. Spafford, 14 Neb. 488; Bazzo v. Wallace, 16 Neb. 293; Scott v. Spencer, 44 Neb. 93; Darries v. Darries, 58 Mo. 222.) The receiver's compensation could not legally be allowed without notice to the plaintiffs in error, the par......
  • O'Neil v. Union Nat. Life Ins. Co., No. 33870
    • United States
    • Supreme Court of Nebraska
    • March 23, 1956
    ...a defense substantially different from those relied on at the original trial.' Nebraska cases cited in support are Scott v. Spencer, 44 Neb. 93, 62 N.W. 312; Peterson v. Lincoln County, 92 Neb. 167, 138 N.W. 122, Ann.Cas.1913E, 1309; Gadsden v. Thrush, 72 Neb. 1, 99 N.W. Only the case of Ga......
  • Perkins v. Butler Cnty.
    • United States
    • Supreme Court of Nebraska
    • February 20, 1895
    ...in place of the original creditors of the firm. This case is authority for holding that the mere fact that Chidester used the proceeds [62 N.W. 312]of the note in the construction of the courthouse would not entitle the plaintiffs to rank as partnership creditors. In Hayden v. Cretcher, 75 ......
  • Simms v. Andrews, No. 2121.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 3, 1941
    ...Romeyn v. Sickles, 108 N.Y. 650, 15 N.E. 698; Hensley v. Chicago, St. P., M. & O. Ry. Co., 126 Neb. 579, 254 N.W. 426; Scott v. Spencer, 44 Neb. 93, 62 N.W. In his seventh assignment of error, the Trustee asks: "In equity and good conscience, should the United States be granted equitable re......
  • Request a trial to view additional results

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