Trayer v. Setzer

• Decision Date: 21 December 1904
• Docket Number: 13,563
• Citation: 101 N.W. 989,72 Neb. 845
• Parties: HARRY TRAYER ET AL. v. NORA SETZER
• Court: Nebraska Supreme Court

101 N.W. 989

72 Neb. 845

HARRY TRAYER ET AL. v. NORA SETZER

No. 13,563

Supreme Court of Nebraska

December 21, 1904

ERROR to the district court for Nemaha county: JOHN S. STULL JUDGE. Affirmed.

AFFIRMED.

John C Watson and B. F. Neal, for plaintiffs in error.

J. S McCarty and H. A. Lambert, contra.

AMES, C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

The facts in this case are not in dispute and are narrated in the brief of plaintiff in error as follows:

"As appears by the petition filed in the court below the defendant in error, Nora Setzer, commenced before the county court against Henry Trayer, one of the plaintiffs in error, a prosecution for bastardy. The bastardy complaint was filed on the 17th day of January, 1902, by Nora Setzer, the defendant in error, whose name was at the commencement of this action in the district court, Nora Trayer. On the 2d day of February, 1902, the prosecutrix was delivered of twins. That on the 31st day of January, 1903, the prosecutrix and the said Harry Trayer were married and the bonds of matrimony had never been dissolved. That after the marriage it was brought to the attention of the district court for Nemaha county that the said Harry Trayer refused to live and carry out his marriage vows with his then wife, and he, Harry Trayer, 'was brought into court where he appeared with his attorneys in open court at the regular February, 1903, term, thereof, and on said bastardy proceedings being called up and coming on for trial, he pleaded guilty thereto and in open court admitted that he was the father of said children,' whereupon the court adjudged the said Harry Trayer to be the father of said bastards and required him to enter into a bond with sureties for the payment of $ 1,000 for their support and maintenance, and thereupon the bond in suit was entered into by the defendants (plaintiffs in error) as such sureties. Thereafter, to wit, on the 16th day of May, 1903, the plaintiff instituted this action against the said Harry Trayer and his bondsmen, John Trayer and Albert Moody, plaintiffs in error herein. The plaintiffs in error answered, and the defendant in error replied thereto, setting up the above facts. The plaintiffs in error filed a motion for judgment upon the pleadings, which motion was overruled, and the court then permitted the plaintiff to call a jury, prove her bond, and entered judgment thereon. Plaintiffs in error filed motion for a new trial which was overruled. This action is brought to reverse the aforesaid proceedings."

No objection was made in the district court to the prosecution of the action in the name of Nora Setzer instead of that of Nora Trayer, and as such an objection is merely formal and not affecting the merits, it cannot be made for the first time in this court. It cannot be doubted that the plaintiff is the person for whose use and benefit the bond was given and is the real party in interest, whatever may be her true name.

It is urged by plaintiffs in error that husband and wife are, in legal contemplation, but one person, and are...