Segear v. Westcott

• Citation: 120 N.W. 170,83 Neb. 515
• Decision Date: 20 February 1909
• Docket Number: 15,564
• Parties: JAMES SEGEAR, APPELLANT, v. GEORGE WESTCOTT, APPELLEE
• Court: Nebraska Supreme Court

120 N.W. 170

83 Neb. 515

JAMES SEGEAR, APPELLANT, v. GEORGE WESTCOTT, APPELLEE

No. 15,564

Supreme Court of Nebraska

February 20, 1909

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

J. W Eller, for appellant.

Lambert & Winters, contra.

OPINION

LETTON, J.

The facts in this case were stated in a former opinion, 77 Neb. 550. The provisions of the lease under which the plaintiff held possession of the land gave the lessor the right to dispose of a portion of the premises. Defendant's contention is that under this provision a street had been opened by the city over the land, which street he used during the time for which the plaintiff alleges he is indebted to him under an agreement to pay a monthly rent for the use of a private way over plaintiff's premises. At the second trial, after both parties had introduced their evidence and rested, the plaintiff moved the court to instruct the jury in his favor for the amount claimed, and the defendant moved the court to instruct the jury for the defendant. These motions were submitted together, whereupon the court upon its own motion discharged the jury and held the case for argument and further disposition, to which discharge and disposition of the case each party objected and excepted, but neither requested that the case be submitted to the jury under instructions. The case was then argued and submitted to the court, which took the same under advisement, and afterwards during the term found generally for the defendant and rendered a judgment dismissing the case, from which judgment the plaintiff has appealed.

An amended answer was filed in the district court, which, the plaintiff claims, changed the issues from those tried in the county court, and at the first trial in the district court. We think that there is no merit in this contention. While the exact language is not used in both answers, the identity of the defense is preserved. The plaintiff claimed the right of recovery for the use of a private way across his premises to the Missouri river. The defendant admitted the use of the private way for a certain period, alleged payment therefor, and claimed that a public way was created across the premises to the river which he used thereafter, and that he was not indebted to the defendant for such time as he used the public way. The matter in controversy was the same and the defense was substantially identical with that alleged in the county court. This is all that is necessary. Myers v. Moore, 78 Neb. 448, 110 N.W. 989; North & Co. v. Angelo, 75 Neb. 381, 110 N.W. 570.

It is next contended that the court erred in dismissing the jury and rendering judgment. We think that the mere fact that the court discharged the jury and thereupon rendered a judgment under the circumstances in this case is of no great moment. It was irregular, but not prejudicial. Where a verdict is directed by the court, the action of the jury is ministerial in its nature. The rendition of the verdict is at most a mere form, for, if the jury should return a verdict contrary to the direction, it would be the duty of the court to immediately set the same aside. The result in this case is no different than it would have been had the court directed the jury to return a verdict for the defendant. The general rule is that, where at the conclusion of a trial both parties request a directed verdict, they thereby, in effect, waive the jury and consent that the case may be determined by the court. The reason for the rule is clearly stated by Sanborn, J., in Phenix Ins. Co. v. Kerr 129 F. 723, as follows: "Where each of the parties to a trial by jury requests the court to...