Marvin v. Weider

Nebraska Supreme Court

Marvin v. Weider

48 N.W. 825, 31 Neb. 774, 1891 Neb. LEXIS 114

CourtNebraska Supreme Court

DecidedMay 6, 1891

StatusPublished

Cited by14 cases

This text of 48 N.W. 825 (Marvin v. Weider) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marvin v. Weider, 48 N.W. 825, 31 Neb. 774, 1891 Neb. LEXIS 114 (Neb. 1891).

Pincite

Opinion

Per Curiam.

This action was brought under section 40, chapter 4, Compiled Statutes, giving a lien upon the offspring of certain animals. A demurrer to the amended petition was overruled by Judge Broady, and leave given the defendant to answer. The defendant thereupon filed an answer denying the facts stated in the petition, and pleading that such facts failed to state a cause of action. The cause afterwards came on for trial before Judge Appelget, who, after the jury had been impaucled and sworn, sustained an objection to the introduction of any testimony, on the ground that the petition failed to state a cause of action. This is a practice that cannot be tolerated. There are two judges in the first district, and a ruling made by one must be respected by the other, otherwise confusion and uncer-tainty will be the result.

The action is brought against the defendant, who, it is alleged, purchased the mares and colts on which the plaintiff had a lien, and that he secreted the colts so that they could not be found, whereby the plaintiff was deprived of his lien. It is also alleged that the defendant knew of the existence of this lien when he purchased the property. Liberally construed, the petition states a cause of action, although it is probable that there is defect of parties defendant, the principal debtor being a necessary party. No objection is made on this ground, however, and it is at most a defect, of parties, which, in a proper case, would not defeat a recovery.

Questions relating to the sufficiency of a petition should be determined before a jury is called and witnesses subpoenaed in the case, thus adding greatly to the costs and •expenses of the trial. Where objections are not made until [776]*776the hearing, a petition will, if possible, be sustained, and the cause proceed to judgment.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.

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Per Curiam.

This action was brought under section 40, chapter 4, Compiled Statutes, giving a lien upon the offspring of certain animals. A demurrer to the amended petition was overruled by Judge Broady, and leave given the defendant to answer. The defendant thereupon filed an answer denying the facts stated in the petition, and pleading that such facts failed to state a cause of action. The cause afterwards came on for trial before Judge Appelget, who, after the jury had been impaucled and sworn, sustained an objection to the introduction of any testimony, on the ground that the petition failed to state a cause of action. This is a practice that cannot be tolerated. There are two judges in the first district, and a ruling made by one must be respected by the other, otherwise confusion and uncer-tainty will be the result.

The action is brought against the defendant, who, it is alleged, purchased the mares and colts on which the plaintiff had a lien, and that he secreted the colts so that they could not be found, whereby the plaintiff was deprived of his lien. It is also alleged that the defendant knew of the existence of this lien when he purchased the property. Liberally construed, the petition states a cause of action, although it is probable that there is defect of parties defendant, the principal debtor being a necessary party. No objection is made on this ground, however, and it is at most a defect, of parties, which, in a proper case, would not defeat a recovery.

Questions relating to the sufficiency of a petition should be determined before a jury is called and witnesses subpoenaed in the case, thus adding greatly to the costs and •expenses of the trial. Where objections are not made until [776]*776the hearing, a petition will, if possible, be sustained, and the cause proceed to judgment.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.

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Bluebook (online)

48 N.W. 825, 31 Neb. 774, 1891 Neb. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marvin-v-weider-neb-1891.

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