Sorensen v. Sorensen

• Decision Date: 09 April 1903
• Docket Number: 12,753
• Citation: 94 N.W. 540,68 Neb. 483
• Parties: THOMAS SORENSEN ET AL. v. ALFRED HANS SORENSEN. [*]
• Court: Nebraska Supreme Court

94 N.W. 540

68 Neb. 483

THOMAS SORENSEN ET AL. v. ALFRED HANS SORENSEN. ^[*]

No. 12,753

Supreme Court of Nebraska

April 9, 1903

ERROR to the district court for Valley county: JAMES N. PAUL DISTRICT JUDGE. Reversed.

Reversed and remanded.

Alfonso M. Robbins, Herman Westover, F. E. Bishop, E. J. Babcock and J. W. Deweese, for plaintiffs in error.

A Norman, George W. Hall, Victor O. Johnson, Elliott J Clements and Edwin M. Coffin, contra.

POUND, C. BARNES and OLDHAM, CC., concur.

OPINION

POUND, C.

A general statement of the facts out of which this controversy arises may be found in an opinion rendered in another branch of the same proceeding. Sorensen v. Sorensen, 56 Neb. 729, 77 N.W. 68. When the cause was here before, the question was, who was entitled to appointment as administrator of the estate? After that question had been determined and the claims of the alleged widow disposed of, the petitioners in the present case, who are brothers and children of a deceased brother and sister of the intestate, filed a petition in the county court praying for distribution of the estate to them as heirs and distributees under the statute. Alfred Hans Sorensen, the defendant in error, by his guardian, answered, admitting the relationship of the petitioners to the intestate as alleged, admitting certain other allegations as to the condition of the estate, the property for distribution and the propriety of a distribution thereof, and denying generally all the other allegations of the petition. He alleged further that he was the son, and as such the sole heir and next of kin of the intestate, and prayed that all the property be turned over to him. In due course this proceeding was taken to the district court on appeal, and by order of the latter court, apparently at the instance of defendant in error, was tried upon the pleadings below. A verdict was rendered finding that Ellen Sorensen, the alleged widow, was lawfully married to the intestate, and that said Alfred Hans Sorensen was born of such marriage. Thereupon a judgment was entered in his favor, which is now before us on petition in error.

Several difficult and interesting questions have been argued, which we need not examine at this time for the reason that we think the trial court erred in its ruling as to the right to open and close. Prior to the trial, defendant in error filed a paper in which he admitted "that the brothers, nephews and nieces named in the petition for distribution in this proceeding are the heirs at law and next of kin of the said Hans C. Sorensen, deceased, and entitled to his estate, unless it be proved that said Hans C. Sorensen intermarried with one Ellen Ferguson and the cross-petitioner, Alfred Hans Sorensen, is the issue of said marriage and the legitimate son of the said Hans C. Sorensen, as alleged in the cross-petition of said Alfred Hans Sorensen." Upon this, over the objection and exception of plaintiffs in error, the right to open and close was granted to their adversary. The ruling is defended on two grounds: That the petition does not allege sufficiently there were no persons entitled to take as distributees in preference to petitioners, and hence that the general denial in the answer does not put such question in issue; and, second, that under the written admission and an oral admission in the same terms at the trial, the defendant in error had the burden of proof and was entitled to the right accorded him.

The first point, if tenable, goes much deeper than the mere question of burden of proof and right to open and close. If the petition does not set forth sufficiently that there are no persons of the several classes which, under the provisions of the statute, take precedence of and exclude brothers and sisters and the issue of brothers and sisters, as will be seen presently, no cause of action is stated. Hence, in substance, the defendant in error is contending that the petition does not state a cause of action. If a cause of action is stated, as against objection made for the first time after trial of the cause, and if the parties treated the petition as sufficient to raise an issue, and actually tried that issue, we do not see how it can be asserted that there was no issue to be joined by defendant's general denial, and that an essential element of the plaintiff's case, not expressly admitted, without which there could be no recovery, was not put in issue by such denial. Had objection been made either in the county court or the district court, a more specific statement would have been imperative. Without an allegation in the form of a statement of fact that there were no persons entitled to take under the statute in preference to the plaintiffs, the petition must have fallen before a timely objection. But no such objection was ever made. Consequently, we are compelled to look at the pleading from a different standpoint. Where issue is joined and a trial had without objection to the sufficiency of the petition, that pleading will be construed liberally, and if the essential elements of plaintiff's case may be implied from its terms by reasonable intendment, they will be regarded as alleged sufficiently. Latenser v. Misner, 56 Neb. 340, 76 N.W. 897; Omaha Nat. Bank v. Kiper, 60 Neb. 33, 82 N.W. 102; Fire Ass'n of Philadelphia v. Ruby, 60 Neb. 216, 82 N.W. 629; National Fire Ins. Co. v. Eastern Building & Loan Ass'n, 63 Neb. 698, 88 N.W. 863; Punteney Mitchell Mfg. Co. v. Northwall Co., 66 Neb. 5, 91 N.W. 863 In the three cases last cited, this rule was applied to oral objections to petitions at the trial. Where the petition is not attacked by motion or demurrer, but its sufficiency is challenged after issue joined and at the trial, it has been laid down repeatedly that the pleading will be "upheld if possible." Fire Ass'n of Philadelphia v. Ruby, supra; Norfolk Beet Sugar Co. v. Hight, 56 Neb. 162, 76 N.W. 566. In such case, it will be construed "in the light of the entire record." National Fire Ins. Co. v. Eastern Building & Loan Ass'n, supra. The language of this court in another connection, that "a pleading may be said to allege what can by reasonable and fair intendment be implied from its statements," applies here with peculiar force. Dailey v. Burlington & M. R. R. Co., 58 Neb. 396, 78 N.W. 722. Here the defendant treated the petition as sufficient. He answered it and went to trial without objecting to it, and he filed an "admission" in which he clearly assumed that plaintiffs had alleged the essential fact that there were no persons nearer in degree to the intestate who might claim under the statute. Hence we must take that fact to be sufficiently set forth.

The right to open and close is governed by section 283, Code of Civil Procedure. That section, which in this respect is merely declaratory of the general rule, has been construed repeatedly, and we think the fair import of its language and of the decisions by which it is interpreted may be stated thus: If any of the material facts of a petition are not admitted, but are denied, either directly or argumentatively the right to open and close is in the plaintiff. Rolfe v. Pilloud, 16 Neb. 21, 19 N.W. 970; Mizer v. Bristol, 30 Neb. 138, 46 N.W. 293; Seebrock v. Fedawa, 30 Neb. 424, 46 N.W. 650; Suiter v. Park Nat. Bank of Chicago, 35 Neb. 372, 53 N.W. 205; Welsh v. Burr, 56 Neb. 361, 76 N.W. 905; Summers v. Simms, 58 Neb. 579, 79 N.W. 155. It is obvious that if any material fact is put in issue, the plaintiff must fail, to that extent at least, unless he introduces evidence in support thereof; and this is true even where the sole issue, so far as the petition is concerned, is the amount of damages. Summers v. Simms, supra. Although the particular allegations of the petition put in issue are indefinite and ill stated, if they are enough to sustain a judgment, the right to...