White Motor Co. v. Reynolds
| Court | Supreme Court of Nebraska |
| Citation | 136 N.W.2d 437,179 Neb. 91 |
| Docket Number | No. 35945,35945 |
| Parties | The WHITE MOTOR CO., a Corporation, Appellee, v. Roland REYNOLDS, Appellant. |
| Decision Date | 16 July 1965 |
Page 437
v.
Roland REYNOLDS, Appellant.
Page 438
Syllabus by the Court
1. In the absence of a bill of exceptions it is presumed that the issues of fact presented by the pleadings are established by the evidence and the only issue that is considered on appeal is the sufficiency of the pleadings to sustain the judgment.
2. There is no vested right in a usury law and it may be repealed or changed so as to affect causes of action and defenses in pending suits.
3. A motion for continuance is addressed to the sound discretion of the court, and in the absence of a showing of an abuse of discretion, the ruling on the motion will not be disturbed.
Johnson, Kelly, Evans, Johnson & Spencer, Broken Bow, for appellant.
Fraser, Stryker, Marshall & Veach, John Wenstrand, Omaha, for appellee.
Heard before WHITE, C. J., CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and WESTERMARK, District Judge.
BOSLAUGH, Justice.
This is an action in replevin to recover the possession of two motortrucks mortgaged by Roland Reynolds, the defendant, to The White Motor Company, the plaintiff.
Page 439
The trial court found that the plaintiff was entitled to the possession of the trucks. The defendant's motion for new trial was overruled and he has appealed. There is no cross-appeal.There is no bill of exceptions in this case. In the absence of a bill of exceptions it is presumed that the issues of fact presented by the pleadings are established by the evidence and the only issue that is considered on [179 Neb. 92] appeal is the sufficiency of the pleadings to sustain the judgment. Hague v. Sterns, 175 Neb. 1, 120 N.W.2d 287.
The petition in this action was filed on May 9, 1963. It alleged the execution and delivery of the primissory notes and chattel mortgages to the plaintiff; the default of defendant; and the balance due the plaintiff of $16,430 plus interest. Copies of the chattel mortgages were attached to and made a part of the petition.
The defendant's answer and cross-petition was filed on July 24, 1963. It admitted the execution and delivery of the promissory notes and chattel mortgages, but alleged that the indebtedness was void and uncollectible because it was in violation of the Installment Loan Act. The prayer was for a return of the property, cancellation of the indebtedness, recovery of all payments that had been made, and damages for the loss of use of the trucks during the time that the action was pending.
On August 7, 1963, the plaintiff moved for additional time to plead. The trial court sustained this motion and extended the plaintiff's time to plead until September 9, 1963. On September 17, 1963, the court allowed the plaintiff until November 1, 1963, to plead. On October 28, 1963, the plaintiff moved for a further extension of time to plead until December 1, 1963. The transcript does not show any ruling on this motion.
On November 20, 1963, the plaintiff filed a reply and answer to the cross-petition. It alleged that the transactions in question were valid time sales; that they did not violate the Installment Loan Act; that the...
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