Winkler v. Roeder

• Decision Date: 28 March 1888
• Citation: 23 Neb. 706,37 N.W. 607
• Parties: WINKLER ET AL. v. ROEDER.
• Court: Nebraska Supreme Court

23 Neb. 706

37 N.W. 607

WINKLER ET AL.

v.ROEDER.

Supreme Court of Nebraska.

March 28, 1888.

Syllabus by the Court.

Where no objection is made to the summons, or to the return of the officer thereon, such summons should be omitted from the transcript; so with journal entries not involved in the case, and the costs of such immaterial matter, if the proper motion is made, will be taxed to the party at fault.

The testimony held to sustain the substantive allegation of the petition.

Where the answer is a general denial, the testimony will be confined to facts which tend to prove or disprove the allegations of the petition, and a defendant will not be permitted to interrogate witnesses on cross-examination upon matters not involved in the issue, but in the nature of an affirmative defense.

As vindictive damages cannot be recovered in this state, attorneys' fees are not recoverable in actions of tort, except where specifically provided for by statute.

Error to district court, Adams county; MORRIS, Judge.

Simon Roeder brought this action against Henry Winkler and others, to recover damages for injuries received by reason of an assault committed upon him by defendants. The jury returned a verdict for plaintiff, and assessed the damages at $1,000, and $200 attorneys' fees. Judgment was entered upon the verdict, and defendants bring error.Dilworth, Smith & Dilworth, for plaintiffs in error.

Adna H. Bowen and J. B. Cessna, for defendant in error.

MAXWELL, J.

The defendant in error brought an action in the district court of Adams county, against the plaintiffs, and alleges in his petition “That on the 9th day of November, 1883, in the night-time, between the hours of 10 and 11 o'clock of said night, the said defendants broke into the dwelling-house of said plaintiff, and then and there made an assault upon the plaintiff, and did then and there him, the said plaintiff, beat, wound, whip, choke, and ill-treat, by striking said plaintiff on the head and face with a large stick of wood, and by whipping said plaintiff with a carriage whip, on the body of said plaintiff, and by choking him, and by smearing the naked body of plaintiff with tar, whereby plaintiff was bruised, wounded and made sick, whereby he was unable to attend to business for a period of one year, and that, by reason of said assault, beating, wounding, and ill treatment, as aforesaid, said plaintiff has sustained permanent injury, by being permanently disabled from performing the usual labor of said plaintiff, and plaintiff alleges that he has sustained damages by reason of said assault, beating, wounding, ill-treatment, in the sum of five thousand dollars, for which he prays judgment, with reasonable attorneys' fees.” The plaintiffs in error (defendants below) filed an answer denying all the facts stated in the petition. On the trial of the cause, the jury returned a verdict as follows: “We, the jury in this case, being duly impaneled and sworn, do find and say that we find for the plaintiff, and assess the amount the said plaintiff is entitled to receive of and from said defendants, Henry Winkler, Oscar Winkler, John Blevenicht, and Frederick Young at $1,000, and $200 attorneys' fees.” A motion for a new trial was duly made and overruled, and judgment entered on the verdict.

Before proceeding to the consideration of the issues involved in this case, we desire to call attention to the condition of the record. The action was commenced in November, 1884, and the trial had in June, 1887, a number of terms of the district court having intervened between the commencement of the action and the time of trial. No objection is made to the summons, nor could there be, as the plaintiff in error made a general appearance, by filing an answer. Yet we have a copy of the summons set out in the transcript,and the several returns of the officer thereon. Neither was any objection made to the several continuances of the case in the district court, but they are set out at length in the record. This matter covers 11 pages, and is entirely needless, and should be taxed to the party at fault. In a number of cases, this court has held that immaterial matter, like a copy of a summons, the returns on the same, when no objection is made to the returns or the summons, should be omitted from the transcript. So with a motion, demurrer, or other...