Scott v. Cornish

62 N.W. 1065, 44 Neb. 376, 1895 Neb. LEXIS 79

• Court: Nebraska Supreme Court
• Decided: April 3, 1895
• Docket: No. 6242
• Status: Published

Opinion

Ryan, C.

In this action the appeal of Joseph F. Cornish was dismissed for want of prosecution October 2, 1894. The rights of the other appellant, C. C. Stanley, are now presented for determination. The record discloses no finding whatever against the appellant last named, and the judgment against him was merely for costs. The appellees do not insist, as technically they might, that an alleged error in the taxation of costs, when that is the sole question made, should be presented in the district court by an appropriate motion. It is argued that since there were allegations in the petition that the contract- assailed thereby was obtained by fraud through a conspiracy between the appellants, the finding that Joseph F. Cornish was guilty of fraud, as charged in the petition, was, by direct implication, a finding that C. C. Stanley was likewise guilty. It seems to us that this is too far fetched, for the finding of fraud does not necessarily involve the existence of a conspiracy, especially as this affirmative finding was alone in respect to one individual, who by no possibility could be guilty of conspiracy with himself. The judgment of the district court against C. C. Stanley is therefore

Reversed.