Wheeler v. Barker
| Citation | 51 Neb. 846,71 N.W. 750 |
| Parties | WHEELER v. BARKER ET AL. |
| Decision Date | 03 June 1897 |
| Court | Supreme Court of Nebraska |
1. In general, a plaintiff waives error in sustaining a demurrer to his petition by filing an amended petition. But when the amended petition has been stricken from the files, because substantially the same as the original, he may, by proceedings in error, review the ruling of the court in striking the amended petition from the files.
2. In such case the court will first examine the amended petition to ascertain if it was substantially the same as the original. If not, it was error to strike it from the files. It will next ascertain whether the amended petition stated a cause of action. If so, the error was prejudicial to the plaintiff.
3. While it is the duty of an administrator to distribute funds in his possession in that capacity in pursuance of the orders of the county court, nevertheless, the county court having general jurisdiction of the administration of the estate, an order thereof directing money to be paid into court, instead of to the distributee, is, at most, erroneous, and not void.
4. Therefore, where a county judge orders an administrator to pay money into court, and the latter does so, and the county judge receives the money, it is on his part an official act, and he is liable therefor upon his official bond.
5. In a case submitted under rule 2 (65 N. W. v.), on agreed printed abstract, the court will not look beyond the abstract so agreed upon and presented. Closson v. Roman (Neb.) 69 N. W. 760, followed.
Error to district court, Douglas county; Fawcett, Judge.
Action by Bert G. Wheeler, an infant, by her guardian, Isaac Adams, against James W. Eller, George E. Barker, and another. From a judgment for defendants, plaintiff brings error. Reversed.Isaac Adams, for plaintiff in error.
E. J. Cornish, for defendants in error.
This was an action brought by Bert Glendore Wheeler, an infant, by her guardian, Isaac Adams, against James W. Eller, formerly county judge of Douglas county, and George E. Barker and William S. Rector, the sureties on his official bond. The sureties demurred to the original petition. The demurrer was sustained, and an amended petition filed. The sureties then moved to strike the amended petition from the files, for the reason, in brief, that it was substantially the same as the original petition. This motion was sustained, and, the plaintiff electing not to plead further, a judgment of dismissal was entered. The plaintiff prosecutes error, assigning as error the sustaining of the demurrer to the original petition, and the striking from the files of the amended petition.
The defendants in error contend that, if the amended petition was substantially the same as the original, there was no error in striking it from the files, and that the court cannot review the order sustaining the demurrer to the original petition, because the error, if any, was waived by pleading over. It is no doubt true as a general principle that a party waives error in ruling upon demurrer by pleading over. It is doubtful, however, whether such error is waived when the amended pleading has been stricken from the files, because in that case the party pleading has never had the benefit of his amendment. In support of the contention of the defendants, we are cited to Barrett v. Insurance Co. (Iowa) 68 N. W. 906. The court there applied the rule whereby error is waived by pleading over to a similar state of facts; but in that case there had been a failure to assign as error the sustaining of the motion to strike, and the intimation is that the assignment would have been available. We think the correct view is this: That, having elected to plead over, the plaintiff cannot now open up for review the order sustaining the demurrer; but, having assigned as error the striking from the files of the amended petition, she is entitled to have the ruling reviewed. If the amended petition differed in any material respect from the original, there was error in striking it from the files; but that error was not prejudicial unless it stated a cause of action.
It is unnecessary to set out the two petitions at length. The original was brief. After alleging the election and qualification of Eller as county judge, and properly pleading the bond sued on, it proceeds: “That thereafter, on the 29th day of March, 1892, one F. E. McMullen, as administrator of the estate of Bert G. Wheeler, deceased, the father of plaintiff herein, in pursuance of an order theretofore made by said Eller as such county judge, paid into said county court and to said Eller, as such county judge, the sum of $1,935.92, which said money constituted plaintiff's distributive share of her said deceased father's estate, and that, on the 23d day of May thereafter, said Eller, as such county judge, ordered said sum of money so paid into court, and in his possession, to be paid to the lawful guardian of said minor thereafter to be appointed by said court upon the filing by such guardian of his duly-verified receipt therefor.” Then follow allegations to the effect that on the 2d of January, 1894, said court appointed Gust Hamel guardian of the estate of the plaintiff; that Hamel qualified and filed a duly-verified receipt, as required by the order pleaded, and that subsequently Eller paid to Hamel $484.42; that the remainder, $1,451.50, is in the possession of Eller in his official capacity as judge; and that he refuses to pay it over to the guardian. It will be observed that in this petition the plaintiff confined herself very strictly to the pleading of ultimate facts, and did not, with regard to the estate of Bert G. Wheeler, deceased, allege that the county court of Douglas county was the court which appointed the administrator or had jurisdiction of the estate. For all that appears in the petition, McMullen might have been appointed administrator by another court, and might not have been in any way accountable to the county court of Douglas county; so that the orders pleaded may have been absolutely void. In the amended petition these averments are supplied, and this was in itself sufficient to give the amended petition standing as such, and rendered it erroneous to strike it from the files because it was similar to the original. Moreover, the amended petition set forth at large the various orders, and pleaded all the facts with greater detail. The rule requiring a pleader to state the ultimate facts, and not the evidence, and not conclusions of law, is one always difficult of application; and, within certain limits, the pleader may for himself determine with what degree of detail he will plead the facts. There was therefore error in striking the amended petition from the files. Was the error prejudicial? In other words, did the amended petition state a cause of action against the defendants?
In brief, the amended petition shows that the estate of Bert G. Wheeler, deceased, was in process of administration, through the county court of Douglas county; that, on application of the administrator for a final settlement and discharge, the court found that all claims had been paid, and that there remained in the hands of the administrator $3,934.94, to be applied, first, to the unpaid costs and expenses of administration, and the remainder to be distributed as might thereafter be decreed, and, upon payment into court by the administrator of said sum, the administrator should be discharged; that the money...
To continue reading
Request your trial
-
Barker v. Wheeler
...the county judge receives the money, it is, on his part, an official act, and he is liable therefor on his official bond.” Wheeler v. Barker, 51 Neb. 846, 71 N. W. 750. The doctrine thus declared appears to be sound. At any rate, it is the law of the case, and will not be re-examined at thi......
- Barker v. Wheeler
- Wheeler v. Barker