Weideman v. Peterson's Estate, No. 29200.

CourtSupreme Court of Nebraska
Writing for the CourtEBERLY
Citation261 N.W. 150,129 Neb. 74
PartiesWEIDEMAN v. PETERSON'S ESTATE.
Decision Date17 May 1935
Docket NumberNo. 29200.

129 Neb. 74
261 N.W. 150

WEIDEMAN
v.
PETERSON'S ESTATE.

No. 29200.

Supreme Court of Nebraska.

May 17, 1935.



Syllabus by the Court.

1. An order overruling a motion to strike a petition, or to strike from a petition, will be reviewed on appeal, even though not assigned as error in the motion for a new trial.

2. First paragraph of syllabus in Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, and also first paragraph of syllabus of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, overruled.

3. The rule announced in Estate of Fitzgerald v. Union Savings Bank, 65 Neb. 97, 90 N. W. 994, that, “on appeal to the district court from an order of the county court allowing or rejecting a claim against an estate, pleadings need not be filed unless directed by the court,” held abrogated by statutory changes of legislative enactment on which such rule was based.

4. “A motion may properly be overruled which cannot be allowed in substantially the same terms as requested.” Fox, Canfield & Co. v. Graves, 46 Neb. 812, 65 N. W. 887.

5. “A case must be tried in the district court upon appeal upon the issues tried in the lower court. This does not mean that no issuable fact can be pleaded in a petition in the district court that was not alleged in the bill of particulars in the lower court. If the identity of the cause of action is preserved in the petition it is sufficient.” Jacob North & Co. v. Angelo, 75 Neb. 381, 105 N. W. 189, 110 N. W. 570.

6. An oral promise to compensate one for past services, which do not appear to have been performed as a gratuity, and as to which the obligations created thereby are then not barred by the statute of limitations, as well as for future services, out of the promisor's estate, and that a legacy therefor shall be provided for the promisee, where, by the latter, such promise is thereafter accepted and performed, is an independent and substitutionary contract to which the statute requiring a new promise to be in writing does not apply.

7. Record examined, and held that the order of the district court denying motion for new trial on the ground of newly discovered evidence was erroneous.


Appeal from District Court, Cass County; Begley, Judge.

Proceeding by Ed A. Weideman against the estate of Neils P. Peterson, deceased. From an adverse judgment, defendant appeals.

Judgment reversed, and cause remanded, with directions.

[261 N.W. 151]

Courtright, Sidner, Lee & Gunderson, of Fremont, and W. A. Robertson, of Plattsmouth, for appellant.

Dwyer & Dwyer, of Plattsmouth, for appellee.


Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

EBERLY, Justice.

This action arises out of a claim against the estate of Neils P. Peterson, deceased, which, at the time of the hearing thereon in the county court, was in the following form (verification omitted):

“Estate of Neils P. Peterson, Deceased. In Account With
+--------------------------------------------------+
                ¦ ¦ ¦Dr.¦Cr.¦
                +------+-----------------------------------+---+---¦
                ¦1922-3¦Trip to Blair ¦16 ¦ ¦
                +------+-----------------------------------+---+---¦
                ¦1922-3¦2 Trips to Fremont ¦24 ¦ ¦
                +------+-----------------------------------+---+---¦
                ¦1922-3¦3 Trips to Kennard, Neb. ¦45 ¦ ¦
                +------+-----------------------------------+---+---¦
                ¦1923 ¦Cleaning House Greenwood ¦10 ¦ ¦
                +------+-----------------------------------+---+---¦
                ¦1923 ¦Nursing--Taking care of N. P. 3 wks¦150¦ ¦
                +------+-----------------------------------+---+---¦
                ¦1931 ¦Trip to Fremont ¦12 ¦ ¦
                +------+-----------------------------------+---+---¦
                ¦ ¦ ¦257¦ ¦
                +--------------------------------------------------+
                

That said deceased promised and agreed with claimant that he would pay said claim by providing for its payment in his will which he failed to do.”

To this claim the amended objections of the administrator, with the will annexed, challenged the sufficiency of the same; pleaded the four-year statute of limitations to all items thereof except the “1931 Trip to Fremont;” pleaded as an offset a note dated September 20, 1924, for the sum of $355.25, with interest at 5 per cent. due and payable “six months after date.” As to which note it was alleged, “No part of which has been paid.” These objections of the administrator closed with the prayer “that said claim * * * be disallowed by the court or in the alternative if the said claim be allowed in any amount to be allowed as a credit on the note hereinabove set out.”

In the county court the claim was disallowed and claimant prosecuted an appeal to the district court. In that court on April 8, 1933, the claimant filed a formal petition based on the same items of services set forth in the original claim, alleging that such services were rendered at the request of deceased; and “that all of said services were performed by claimant with the expectation and under the express agreement of compensation therefor; that said deceased when called on to pay said claim stated that he did not have the money with which to pay same and promised plaintiff that he would make provision for the payment thereof in his will; that subsequently thereto he stated to plaintiff in the year 1923 that he had made a will in which he had provided for the payment and compensation of plaintiff; that he would still need the assistance and advice of plaintiff in the future and plaintiff rendered services to him thereafter in reliance upon such statement; and plaintiff alleges that the said deceased did make a later will in which he provided for the compensation of plaintiff, but that said will was either lost or destroyed subsequent to the death of deceased. Plaintiff further states that the services rendered for and on behalf of said deceased were of the reasonable value of $257, no part of which has been paid.”

To this pleading defendant filed a motion, in the alternative, that said petition be entirely stricken, or in the alternative that said petition be stricken as to certain portions designated in the motion. The overruling of this motion in toto by the trial court is the first error presented for our consideration.

[1] The motion for a new trial does not specifically set out this ruling of the court as a specific ground of error, and appellee insists that this court is committed to the doctrine: “The motion for new trial must give the trial court an opportunity to correct all errors complained of. No alleged error can be considered in this court as ground for reversal unless so brought to the attention of the trial court.” Waxham v. Fink, 86 Neb. 180, 125 N. W. 145, 28 L. R. A. (N. S.) 367, 21 Ann. Cas. 301.

The error presented to this court in the Waxham Case was the refusal of the trial court to direct a verdict for the defendant on the ground of the insufficiency of the evidence. The assignments of the motion for a new trial in that case included, “the verdict is not sustained by sufficient evidence,” or “the verdict is contrary to law,” and were held ample to challenge the attention of the trial court to its ruling in refusing to direct a verdict for the defendant. On this ground the judgment of the trial court was reversed. However, such Waxham

[261 N.W. 152]

Case is not an authority on the question here presented.

Section 20-1142, Comp. St. 1929, declares: “A ‘new trial’ is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party.” This section then enumerates eight distinctive grounds for motions for new trial. Sections 20-1143 and 20-1144, Comp. St. 1929, provide when and how such application for new trial shall be made.

In Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, this court, in an opinion by Duffie, C., announced the principle: “An order overruling a motion to strike from a petition will not be reviewed on appeal, when not assigned as error in the motion for a new trial.”

The case of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, is cited in the...

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16 practice notes
  • Strong v. Sunset Copper Co., 28069.
    • United States
    • United States State Supreme Court of Washington
    • June 14, 1941
    ...country, support that statement: Christian Women's Board of Missions v. Clark, 140 Ark. 262, 215 S.W. 631; Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150; Devine v. Murphy, 168 Mass. 249, 46 N.E. 1066; Schwartz v. Edmunds, 20 Cal.App.2d 530, 67 P.2d 351; In re Gould, 257 A.D. 109,......
  • Park Circle Motor Co. v. Willis, No. 8
    • United States
    • Court of Appeals of Maryland
    • December 5, 1952
    ...7 J. J. Marsh., Ky., 109; Noel v. Wheatly, 30 Miss. 181; Caproon v. Mitchell, 77 Neb. 562, 110 N.W. 378; Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150; Kingsbury v. Smith, 13 N.H. 109; Pine-Brownell Co. v. Coleman, 63 Ohio App. 259, 26 N.E.2d 216; Balte v. Bedemiller, 37 Or. 27,......
  • In re Estate of Kothe, 29696
    • United States
    • Nebraska Supreme Court
    • July 14, 1936
    ...case below, without framing issues by pleadings, it should be noted that this court announced the rule in Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150, that statutory changes by legislative enactment have abrogated the previous rule that new pleadings in estate appeals need not......
  • Sedlak v. Duda, No. 31704.
    • United States
    • Supreme Court of Nebraska
    • April 7, 1944
    ...motion may properly be overruled which cannot be allowed in substantially the same terms as requested.”’ Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150, 153. The first paragraph of defendant's motion is that plaintiff be required to separately state and number his causes of actio......
  • Request a trial to view additional results
16 cases
  • Strong v. Sunset Copper Co., 28069.
    • United States
    • United States State Supreme Court of Washington
    • June 14, 1941
    ...country, support that statement: Christian Women's Board of Missions v. Clark, 140 Ark. 262, 215 S.W. 631; Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150; Devine v. Murphy, 168 Mass. 249, 46 N.E. 1066; Schwartz v. Edmunds, 20 Cal.App.2d 530, 67 P.2d 351; In re Gould, 257 A.D. 109,......
  • Park Circle Motor Co. v. Willis, No. 8
    • United States
    • Court of Appeals of Maryland
    • December 5, 1952
    ...7 J. J. Marsh., Ky., 109; Noel v. Wheatly, 30 Miss. 181; Caproon v. Mitchell, 77 Neb. 562, 110 N.W. 378; Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150; Kingsbury v. Smith, 13 N.H. 109; Pine-Brownell Co. v. Coleman, 63 Ohio App. 259, 26 N.E.2d 216; Balte v. Bedemiller, 37 Or. 27,......
  • In re Estate of Kothe, 29696
    • United States
    • Nebraska Supreme Court
    • July 14, 1936
    ...case below, without framing issues by pleadings, it should be noted that this court announced the rule in Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150, that statutory changes by legislative enactment have abrogated the previous rule that new pleadings in estate appeals need not......
  • Sedlak v. Duda, No. 31704.
    • United States
    • Supreme Court of Nebraska
    • April 7, 1944
    ...motion may properly be overruled which cannot be allowed in substantially the same terms as requested.”’ Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150, 153. The first paragraph of defendant's motion is that plaintiff be required to separately state and number his causes of actio......
  • Request a trial to view additional results

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