Segear v. Westcott
| Decision Date | 20 February 1909 |
| Docket Number | No. 15,564.,15,564. |
| Parties | SEGEAR v. WESTCOTT. |
| Court | Nebraska Supreme Court |
SEGEAR
v.
WESTCOTT.
No. 15,564.
Supreme Court of Nebraska.
Feb. 20, 1909.
If the identity of the cause of action or ground of defense is preserved, a petition or answer may be amended on appeal to the district court.
At the close of the evidence each party requested a directed verdict in his favor, and neither party requested a submission of the case to the jury. The court thereupon dismissed the jury and decided the case upon the law and the evidence. Held, that plaintiff cannot complain upon appeal of this action by the trial court.
Appeal from District Court, Douglas County; Sears, Judge.
Action by James Segear against George Westcott. Judgment for defendant, and plaintiff appeals. Affirmed.
J. W. Eller, for appellant.
W. C. Lambert, for appellee.
LETTON, J.
The facts in this case were stated in a former opinion. 77 Neb. 550, 110 N. W. 379. 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...
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