Troup v. Horbach

• Decision Date: 09 February 1899
• Citation: 57 Neb. 644,78 N.W. 286
• Parties: TROUP ET AL. v. HORBACH ET AL. (BLAKELY ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

57 Neb. 644

78 N.W. 286

TROUP ET AL.

v.HORBACH ET AL. (BLAKELY ET AL., INTERVENERS).

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. Where a judgment in an equitable action is reversed, and the cause remanded for further proceedings not inconsistent with the opinion filed in the case, the district court may, if consistent with the views expressed in the opinion, permit a reformation of the issues, and a trial de novo.

2. But there is no strict and absolute right to file new pleadings in such case. The matter is committed to the sound discretion of the court, and its action in the premises will not be reversible error, unless it amounts to an obvious abuse of discretion.

3. In order to bring up for review any action of the trial court with reference to the amendment of pleadings, it must appear by the record that an exception was taken to the order complained of.

4. An order denying an application for leave to amend pleadings is interlocutory, and not appealable.

5. An order refusing a party permission to dismiss his action is not final, and cannot be brought here for review by appeal.

6. On appeal to this court the only question to be considered is whether the judgment or final order responds to, and is warranted by, the pleadings and proofs. To reach errors in interlocutory orders, a petition in error should be filed with the record.

Appeal from district court, Gage county; Letton, Judge.

Action by Elsie D. Troup and others against Paul W. Horbach and others to enforce stockholders' liability. A judgment for plaintiffs was reversed, except as to defendant G. M. Johnston and certain defaulted defendants (74 N. W. 326). From a judgment on second trial dismissing plaintiffs' amended complaint and the cross petition of Nathan Blakely and the Brush Electric Company, interveners, plaintiffs appeal. Affirmed.J. E. Cobbey, G. M. Johnston, Griggs, Rinaker & Bibb, and A. C. Troup, for appellants.

John D. Howe, E. R. Duffie, A. H. Babcock, and A. Hazlett, for appellees.

SULLIVAN, J.

This equitable action was commenced by creditors of an insolvent corporation against its stockholders to recover unpaid stock subscriptions. A judgment of the district court in favor of the plaintiffs was brought here for review, and at a former term reversed, except as to the defendant G. M. Johnston and certain other defendants, who were defaulted. The cause was remanded for further proceedings not inconsistent with the views expressed in the opinion. Troup v. Horbach (Neb.) 74 N. W. 328. After receiving the mandate, the district court permitted the plaintiffs to file an amended and supplemental petition. This pleading being filed, the defendants Horbach, Horbach, and Lantry moved the court for an order striking it from the files, or else “to dismiss them from said petition.” The motion assigned various reasons for the action it invoked. It was submitted on June 8th, and sustained on the grounds (1) that the additional facts alleged in the petition had not been discovered since the former trial; (2) that the material matters contained in the petition had been already tried and adjudicated; and (3) that the averments of the original petition are the same as those contained in the amended and supplemental petition. To the ruling on the motion no exception was taken, and the court thereupon rendered judgment “that defendants Horbach, Horbach, and Lantry go hence without day.” On June 8th the Brush Electric Company, which had intervened in the action, obtained an order dismissing its cross petition without prejudice. June 27th this order was set aside, and an order entered dismissing the cross petition of all interveners, unless amendments presenting material new matter should be filed by them on or before July 1st. Nathan Blakely, one of the interveners, filed an amended cross petition; and to this pleading Horbach, Horbach, and Lantry immediately addressed a motion similar to the one by which the amended and supplemental petition of the plaintiffs had been successfully assailed. The motion was sustained on the grounds (1) that it contained no supplemental matter; (2) that it contained no facts of which Blakely was ignorant at the time of the trial; and (3) that the matters contained in the amended pleading were, in substance, identical with those contained in the original cross petition, and had been already adjudicated. The Brush Electric Company having tendered no amendment, the court, upon sustaining the motion directed against Blakely's amended pleading, dismissed the cross petitions of both interveners, as to Horbach, Horbach, and Lantry. There is nothing in the record to indicate that the action has been finally disposed of as to all the defendants. Except as to Johnston, the defendants defaulted, and the appellees herein, the case seems to be still pending and undetermined in the district court of Gage county. It may be doubtful, under the circumstances, whether the appeal gives this court jurisdiction of the case; but, assuming that it does, we proceed to consider some of the questions discussed by counsel in the briefs.

The plaintiffs and the intervener Blakely have declined to discuss the sufficiency of the new pleadings filed by them in the case. They do not attempt to show that the amendments were substantial, but seem to rest their claim to a reversal of the judgments on the proposition that they had a strict and absolute right to amend, and to a trial in the usual way of the sufficiency and truth of their allegations. The Brush Electric Company stands upon the proposition that the vacation of the order...