Fritz v. Barnes

6 Neb. 435

• Court: Nebraska Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Lake, Ch. J.

The record in this case discloses the fact that the petition when filed in the court below, and at the time the summons issued thereon, was neither signed nor verified as the statute requires. In fact these requisites were both entirely wanting. While in this condition the defendants moved “ the court to dismiss the suit for the reason that there is no petition filed in said court as required by law.” The court 'Sustained this motion and “ dismissed the action without prejudice at the plantiff’s costs.”

When the defects here mentioned exist in a petition a motion particularly specifying them may be properly interposed to strike it from the files. The sustaining of such a motion will of course compel tbe plaintiff to file a new petition, properly verified. But so long as such defective petition remains on file it furnisbes no ground for dismissing the action, nor can a- motion to that end be properly sustained.

For these reasons the judgment of the district court is reversed, and tbe cause remanded for further proceedings. .

Reversed and remanded.