Vaughan v. Omaha Wimsett Sys. Co., 31584.

• Citation: 9 N.W.2d 792,143 Neb. 470
• Decision Date: 04 June 1943
• Docket Number: No. 31584.,31584.
• Parties: VAUGHAN et ux. v. OMAHA WIMSETT SYSTEM CO.
• Court: Supreme Court of Nebraska

143 Neb. 470
9 N.W.2d 792

VAUGHAN et ux.
v.
OMAHA WIMSETT SYSTEM CO.

No. 31584.

Supreme Court of Nebraska.

June 4, 1943.

Appeal from District Court, Douglas County; Dineen, Judge.

Suit by Grover C. Vaughan and Marvel Vaughan against Omaha Wimsett System Company for cancellation of notes and chattel mortgages for usury, wherein the defendant filed a cross-petition for foreclosure of such chattel mortgages. From an order overruling plaintiffs' motion to vacate order overruling their motion for decree or judgment on the answer and cross-petition, and the decree entered therein for defendant, the plaintiffs appeal.

Reversed with directions.

Syllabus by the Court.

1. Without a bill of exceptions the only question which can be presented to this court is the sufficiency of the pleadings to support the judgment.

2. In general, a motion to make more definite and certain, or more specific, will not lie where the allegations of the pleadings, against which it is directed, are sufficiently definite, certain, or specific so as to inform the opposing party of the nature of the cause of action.

3. A motion for judgment on the pleadings is in the nature of a demurrer. It is in substance both a motion and a demurrer and the making of a motion for judgment on the pleadings does not waive the right to trial of an issue of fact.

[9 N.W.2d 793]

4. Upon the overruling of a motion for a judgment on the pleadings, the party so moving should be given the opportunity of electing whether he wishes to stand on his motion or to proceed further, and if he elects to proceed further then the case should be regularly assigned for trial upon its merits as to all issues raised by the pleadings.

W. A. Ehlers, of Omaha, for appellants.

W. M. Giller, of Omaha, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

This action was commenced in the district court for Douglas county by Grover C. Vaughan and Marvel Vaughan, husband and wife, as plaintiffs and appellants here, against the Omaha Wimsett System Company, a corporation, defendant and appellee here, alleging that the appellee, a corporation engaged in the loan business under sections 45-119 to 45-123, Comp.St.1929, did, in connection with a loan made to appellants and secured by a chattel mortgage on their household goods and furniture and on three subsequent renewals or refinancing thereof, make charges in excess of those provided by statute as in their petition set forth and by...