Vogler's Estate, Matter of

• Decision Date: 26 January 1977
• Docket Number: No. 40742,40742
• Citation: 197 Neb. 454,249 N.W.2d 729
• Court: Nebraska Supreme Court
• Parties: In the Matter of the ESTATE of Jeffrey R. VOGLER, Deceased. Lawrence D. GILBERT and Virginia E. Gilbert, co-administrators of the Estate of Marcia D. Gilbert, Deceased, Appellants, v. Sharon L. VOGLER, Administratrix of the Estate of Jeffrey R. Vogler, Deceased, Appellee.

Page 729

249 N.W.2d 729

197 Neb. 454

In the Matter of the ESTATE of Jeffrey R. VOGLER, Deceased.

Lawrence D. GILBERT and Virginia E. Gilbert, co-administrators of the Estate of Marcia D. Gilbert, Deceased, Appellants, v. Sharon L. VOGLER, Administratrix of the Estate of Jeffrey R. Vogler, Deceased, Appellee.

No. 40742.

Supreme Court of Nebraska.

Jan. 26, 1977.

Syllabus by the Court

1. An order sustaining a motion to strike an allegation from a pleading, without further judicial action, is not a final order and is not appealable.

2. A general demurrer admits all the allegations of fact of the pleading to which it is addressed, which are issuable, relevant, material, and well-pleaded.

3. In actions not involving a prayer for extraordinary remedies, pleadings are to

be construed liberally in favor of the pleader.

4. The filing of a demurrer to a petition is a waiver of the right to insist that the allegations thereof be made more definite and certain.

5. In an action to recover damages sustained an account of wrongful death, allegations of plaintiff's capacity to sue, death of a person caused by the wrongful act, neglect, or default of the defendant, and the identity of next of kin and that they sustained damage from such wrongful death sufficiently state a cause of action.

Robert E. McKelvie, Thomas P. McNally, Alma, William H. Stowell, Phillipsburg, Kan., for appellants.

Conway & Connolly, Hastings, for appellee.

Heard before WHITE, C.J., and BOSLAUGH, NEWTON and BRODKEY, JJ., and KUNS, Retired District Judge.

KUNS, Retired District Judge.

This is an action to recover damages for wrongful death under section 30--809, R.R.S.1943. The appellants, Lawrence D. Gilbert and Virginia E. Gilbert, as coadministrators of the estate of Marcia D. Gilbert, deceased, filed their claim for damages for the wrongful death of their decedent in the estate of Jeffrey R. Vogler, deceased, in the county court of Webster County, Nebraska. An objection was filed to the allowance of the claim, and when no evidence was offered in support thereof at the hearing on claims, the claim was disallowed. The order of disallowance was appealed to the District Court for Webster County, Nebraska. After the trial court dismissed the fourth amended petition on appeal, an appeal was taken to this court. We reverse and remand the cause for further proceedings.

The case never proceeded beyond the pleading stage and the only questions presented relate to rulings upon motions and a demurrer. Appellants filed a petition on appeal, with allegations of their representative capacity, their status as heirs of the deceased, her death resulting from the wrongful act, neglect, or default of Jeffrey R. Vogler, deceased, and damage to them by reason thereof. A motion to make the allegation of the wrongful act, neglect, or default more definite and certain was sustained. In a first amended petition, appellants added a narrative of the circumstances alleged to have occurred during the period from the evening of September 15, 1974, and ending with the discovery of the body of the decedent 5 days later together with a statement of the suspicions and conclusions of the appellants and their argument that such matters constituted a circumstantial showing that Jeffrey R. Vogler, deceased, had committed some wrongful act. A motion to strike was sustained, ordering in part that paragraph 4(f) relating to statements of Jeffrey R. Vogler be stricken. A second amended petition was then filed and a general demurrer thereto was sustained. Next, a motion to strike was filed against a third amended petition and sustained as to an allegation of a dollar amount of general damages. Finally, a general demurrer was sustained to a fourth amended petition. When appellants failed to amend within the time allowed, the trial court dismissed the petition. A motion for a new trial assigned error as to the two orders sustaining motions to strike the allegations above mentioned and in the sustaining of the demurrer to the fourth amended petition and the dismissal thereof. The trial court overruled the motion for new trial and appellants argue the same assignments here.

Following the rulings as to each of the motions to strike, the appellants proceeded to file further amended petitions and complied with the orders of the court by not repeating the stricken allegations. No further action was taken by the court in this connection and none was necessary. An order sustaining a motion to strike some of the allegations of a pleading, without further judicial action, is not a final order and is not appealable. Barry v. Wolf, 148 Neb. 27, 26 N.W.2d 303; State ex rel. Sorensen v. State Bank of Omaha, 131 Neb. 223, 267 N.W. 532. No assignment of error will lie against the rulings.

Turning next to the question of the sufficiency of the allegations of the fourth amended petition to state a cause of action, it should be noted that the appellants repeated in each of their amended petitions the basic allegations concerning their capacity to sue, their status as next of kin to the deceased, her death by the wrongful act, neglect, or default of Jeffrey R. Vogler, deceased, and the damage to them by reason of such wrongful death. It is true that a lengthy narration of evidence, some of which would have been of dubious admissibility, together with argument concerning the probative effect of the evidence had been added by amendment. This material, being poorly pleaded, was probably not admitted by the demurrer. The rule is usually stated that a general demurrer admits all the allegations of fact of the pleading to which it is addressed which are...