Barnhart v. Henderson

24 N.W.2d 854, 147 Neb. 982, 1947 Neb. LEXIS 122

• Court: Nebraska Supreme Court
• Decided: January 22, 1947
• Docket: No. 32105
• Status: Published

Opinion

Messmore, J.

Counsel, on motion for rehearing, directs our attention to syllabus 2 of the opinion which reads as follows: “When an admission is treated as a matter of pleading excusing the pleader’s opponent from offering evidence on the point admitted, the admission is necessarily conclusive as to the fact admitted, but it does not preclude the party making it from proving other independent facts in avoidance of those admitted.”

The language of syllabus 2 objected to is the part following the last comma, as follows: “but it does not preclude the party making it from proving other independent facts in avoidance of those admitted.” The contention is that the syllabus, with the language objected to remaining therein, is contrary to the established law of this jurisdiction, and would tend to confuse the profession on the proper rule.

After considerate study, we conclude the point is well taken, and the language objected to in syllabus 2 should be, and is, eliminated therefrom, and likewise the same language and language pertaining thereto appearing in the body of the opinion. .

Inasmuch as the foregoing constitutes a matter of clarification, and does not affect the logic nor the result of the opinion, we adhere to the original opinion with the changes made therein as pointed out in this supplemental opinion. The motion for rehearing is denied.

Motion for Rehearing Denied.