Union Stockyards Nat. Bank of S. Omaha v. Lamb
| Decision Date | 18 December 1912 |
| Docket Number | No. 16,837.,16,837. |
| Citation | 139 N.W. 216,92 Neb. 608 |
| Parties | UNION STOCKYARDS NAT. BANK OF SOUTH OMAHA v. LAMB ET AL. |
| Court | Nebraska Supreme Court |
In an action on a promissory note, signed by a defendant, and it is not alleged in the petition that such defendant is a married woman, the fact that she is such, if relied upon as a defense, must be alleged in the answer, in which case the burden of proof is upon the defendant to establish the fact, and, if proved, the burden of proof is upon the plaintiff to prove that the contract was made by the defendant with reference to and for the purpose of binding her separate property and estate.
If a cause of action is stated in the petition, the fact that the pleading contains allegations of redundant and unnecessary matter, which does not conflict with nor weaken the proper averments made, will not render the petition demurrable as not alleging facts sufficient to state a cause of action.
“The rule is settled that this court will, on its own motion, refuse to consider a document appearing in the record and purporting to be a bill of exceptions when not authenticated as such by the certificate of the clerk of the trial court.” State Bank v. Bradstreet, 89 Neb. 186, 130 N. W. 1038, 38 L. R. A. (N. S.) 747.
Instructions given and refused are examined and no error discovered in the action of the court thereon.
If a litigant desires that special findings of fact be made and returned by a trial jury, he should request their submission.
In an action against a married woman on a note, an instruction that the material question to be decided was, “Did the parties at the time the note in suit was executed contract with reference to and upon the faith and credit of the separate estate of the defendant?” is not erroneous in the use of the word “parties,” since that word referred to the parties to the contract and suit, including all.
The refusal of an instruction that defendant is not bound by any act of her husband as her agent, unless the jury find from the testimony that he had authority from her to so act, is not ground for reversal, where the testimony is not before the appellate court.
Appeal from District Court, Greeley County; Hanna, Judge.
Action by the Union Stockyards National Bank of South Omaha against Mary Lamb and another. From a judgment for plaintiff, defendant Mary Lamb appeals. Affirmed.James R. Swain, of Greeley Center, for appellant.
John E. Kavanaugh, of Alva, Okl., and Parish & Martin, of Omaha, for appellee.
This is an action by plaintiff against Mary Lamb and M. Lamb to recover the balance due upon a promissory note executed by both defendants. It is alleged in the petition that the note sued upon is a renewal of a note previously given for the same indebtedness; the former note having been signed by both defendants. The fifth paragraph of the petition is as follows: It is alleged in the sixth paragraph of the petition that the consideration named in the notes and mortgage was extended to the defendant Mary Lamb, and the entire contract whereby she became indebted to the plaintiff was made with the defendant Mary Lamb, whereby she pledged her separate property for the faithful performance of the obligation named in said notes and mortgage. Defendant M. Lamb filed no answer. Mary Lamb answered (1) by a general denial of the unadmitted averments of the petition; (2) admitted the signing of the note upon which the action was based, but alleged that “she is a married woman, the wife of M. Lamb, the defendant in this case, and was such at all times mentioned in said petition, and a resident of the state of Nebraska; that she never signed said note mentioned in paragraph 2 of plaintiff's petition or any agreement connected therewith with reference to her separate property, estate, or business, nor with a view of binding her separate property, estate, or business, but signed said note solely as surety for said M. Lamb and for no other purpose”; (3) avers that she never received any consideration for said note, other than the fact that she signed it as surety, and that she never had any business dealings with plaintiff and was not indebted to it in any sum and signed said note at its request as surety only. The reply was, in substance, a general denial. A jury trial was had.
[1] It is suggested in the transcript that, at the commencement of the introduction of evidence, the defendant Mary Lamb objected to the introduction of any evidence for the reason that the petition did not contain facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant Mary Lamb. The objection appears to have been overruled and exception taken, and the ruling is presented in this court for error. The contention seems to be that it is shown by the paragraphs in the petition herein above referred to that the action is against Mary Lamb as a married woman, and, that being the case, the petition is deficient for want of an allegation that she signed the note upon the faith of her separate estate which she then had and continued to have at the time of filing the petition. A number of cases are cited in the brief sustaining this view, and the law is probably as contended for, if in a proper case; but we fail to see that it can be applied to this case. There is no averment in the petition that Mary Lamb is, or was, a married woman.
[2] We are unable to see the necessity for the averments in the petition above quoted and set out, since they fall short of making the allegation...
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