Welsh v. Burr

• Decision Date: 20 October 1898
• Citation: 76 N.W. 905,56 Neb. 361
• Parties: WELSH v. BURR ET AL.
• Court: Nebraska Supreme Court

56 Neb. 361

76 N.W. 905

WELSH

v.BURR ET AL.

Supreme Court of Nebraska.

Oct. 20, 1898.

Syllabus by the Court.

1. The filing of a reply is a waiver of the right to assail the answer on the ground that the averments are not sufficiently definite and certain.

2. Where a plaintiff is required to introduce any evidence in support of his case, he is entitled to first introduce his testimony before the jury, and also the right to open and close the argument.

Error to district court, York county; Bates, Judge.

Action by R. K. Welsh against George F. Burr and others on a promissory note. From a judgment for defendants, plaintiff brings error. Reversed.G. W. Bemis, for plaintiff in error.

F. C. Power, for defendants in error.

NORVAL, J.

This suit was upon a promissory note by the indorsee against the makers. The petition alleges the execution and delivery of the instrument declared on to the Royal Sewing Machine Company, the payee mentioned therein, the indorsement of the note by it, and that the plaintiff is the owner thereof, and that no part has been paid, except the sum of $90 on October 20, 1893. The answer admitted the execution and delivery of the note, the payment of the $90, denied all other averments of the petition, and pleaded that the note was given for the purchase price of sewing machines, and averred, substantially, that the machines were sold under a certain warranty, and that they failed to comply with the terms thereof. The reply put in issue the warranty set up in the answer. The trial resulted in a verdict for the defendants, upon which judgment was subsequently rendered. Plaintiff, by means of this proceeding, seeks a review of the record.

The point urged for a reversal is the overruling of plaintiff's motion to require the defendants to make their answer more definite and certain by stating therein whether the warranty relied upon was verbal or written, and, if verbal, who made it on behalf of the payee. The transcript of the record shows that the motion was made after plaintiff had filed its reply to the answer. The motion was too late to make the ruling thereon available in the appellate court. Stevenson v. Anderson, 12 Neb. 83, 10 N. W. 552;Fritz v. Grosnicklaus, 20 Neb. 413, 30 N. W. 411. After reply, plaintiff assailed the answer by motion to strike therefrom certain allegations therein, which motion was overruled by the court, and the ruling is assigned for error. The decision was proper, since the motion was filed after plaintiff had replied to the answer of the defendant. Supra.

The trial court refused to permit plaintiff to first introduce his testimony, and to open and close ...