Ure v. Bunn

• Decision Date: 21 May 1902
• Citation: 90 N.W. 904,3 Neb. [Unof.] 61
• Parties: URE v. BUNN ET AL.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 61

90 N.W. 904

URE

v.BUNN ET AL.

Supreme Court of Nebraska.

May 21, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county; Jessen, Judge.

“Not to be officially reported.”

Action by William G. Ure against Conrad Bunn and the Omaha Mercantile Company. Judgment for plaintiff, and defendants appeal. Affirmed on condition.¹Joel W. West and Chas. Ogden, for appellants.

H. W. Pennock, for appellee.

POUND, C.

This is an appeal from a decree foreclosing certain tax liens at suit of the plaintiff, and a mortgage at suit of a defendant and cross petitioner. Three objections are urged, namely, that the cross petition for foreclosure of the mortgage lacks the required averment that no proceedings have been had at law, that the evidence adduced at the hearing to show that no such proceedings had been taken is insufficient to sustain the decree, and that the tax sale is invalid because it appears that the taxes and costs were not paid to the treasurer until some 10 days after the sale.

The appellants made no point with respect to the defect in the petition at any stage of the proceedings in the district court. On the contrary, they permitted the cross petitioner to introduce evidence tending to show that there had been no proceedings at law, without objection, and the cause was tried on the theory that such fact was in issue. We have some doubt whether advantage can be taken of the defect at this time, under such circumstances. Publishing Co. v. Zizkovsky, 42 Neb. 64, 60 N. W. 358;Whitney v. Preston, 29 Neb. 243, 45 N. W. 619;Insurance Co. v. Timm, 23 Neb. 526, 37 N. W. 308. In the cases cited, no reply had been filed, but allegations of new matter in the answer were treated by all parties as denied. In Bailey v. Landingham, 52 Iowa, 415, 3 N. W. 460, the same rule was applied where there was no answer to the petition. In Lounsbury v. Purdy, 18 N. Y. 515, 520, it was held that, if the proof supplied facts which the petition omitted to state, it was “competent for the court to amend the pleading.” Where the required evidence is introduced without objection, the pleading may be amended, even in the appellatecourt, to conform to the proof. Humphries v. Spafford, 14 Neb. 490, 16 N. W. 911. But it would seem that we need not ourselves make an amendment which the parties have not sought to make, because the principle on which the authorities first cited proceed ought to have equal application to a petition. When the parties try an issue without objection as if it were duly raised by the pleadings, no one is prejudiced by the fact that it is not set forth therein. In such case the error is merely formal, and is no ground for reversal of a judgment, in view of section 145, Code Civ. Proc. Miller v. Spaulding, 41 Wis. 221;Vassau v. Thompson, 46 Wis. 345, 1 N. W. 4. In Miller v. Spaulding a pleading setting up an injury done by a domestic animal was defective for want of an allegation of scienter. Nevertheless the question of knowledge as to the disposition of the animal was tried without objection. The court held that the defect had become one of form only. However this may be, under section 144, Code Civ. Proc., amendments in furtherance of justice to conform to the proof are proper at any time, before or after judgment. There is no reason why appellee should not be allowed to amend the cross petition after the cause...