Tuttle v. City of Omaha

• Decision Date: 04 May 1898
• Parties: TUTTLE v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

55 Neb. 55
75 N.W. 50

TUTTLE
v.
CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

May 4, 1898.

Syllabus by the Court.

On the facts set out in the opinion, held, that the appellant was entitled as a matter of right to dismiss her appeal.

Appeal from district court, Douglas county; Ambrose, Judge.

Suit by Elizabeth Tuttle against the city of Omaha and others. There was a decree for defendants, and plaintiff appeals. Dismissed.

[75 N.W. 50]

Winfield S. Strawn, for appellant.

W. J. Connell, for appellees.

RAGAN, C.

Elizabeth Tuttle brought a suit in equity to the district court of Douglas county against the city of Omaha and some railroad companies and others. The object of the action was to obtain a decree declaring an ordinance passed by the city vacating the intersection of some streets, and permitting such intersection to be occupied by the railroad companies, void, and to oust the railroad companies from the possession of such intersection. The trial resulted in a decree dismissing Mrs. Tuttle's action, from which she appealed to this court. Before the trial of the Tuttle suit

[75 N.W. 51]

in the district court. H. Goldberg also brought a suit against the parties made defendants in the Tuttle suit, and for the same purpose. It seems from a stipulation in the record that the Goldberg suit was tried at the same time the Tuttle suit was tried, but whether any decree was ever entered in the Goldberg suit the record does not inform us. Mrs. Tuttle has now filed here a motion to dismiss her appeal, the appellees consenting thereto. This motion is resisted by Goldberg. He insists that this court should retain the appeal, and determine the case upon its merits, because of the fact that the Goldberg case and the Tuttle case involve the same question, the pleadings and issues being the same; that they were tried in the district court as one case, and that it was agreed between Goldberg and the city of Omaha that the appeal in the Tuttle case should operate as an appeal also in the...