53 Neb. 484 | Neb. | 1898
There has already been a description of the issues involved in this case upon a former consideration thereof on a petition in error. (Taylor v. Ainsworth, 49 Neb. 696.) There has now been another trial of these issues in the district court of Douglas county which resulted in a similar judgment to that already reversed, and the defendant again seeks a reversal; this time, however, by appeal. We have carefully examined the evidence adduced and feel satisfied that there was sufficient to sustain the judgment entered by the district court, and there might be an affirmance but for the fact that there are complaints in the brief of appellant as to the. rulings of the district court whereby were excluded various matters of evidence. One of these will serve to illustrate our views with regard to all, and we shall therefore consider but one of the rulings which appellant in argument insists was erroneous.
The action was by an executor to recover money in her lifetime entrusted by his testatrix to the defendant. There was no attempt to deny the receipt of the money, but Taylor, the defendant, pleaded that he should not be required to pay it to the executor because of an arrangement between himself' and said testatrix, the nature of which is sufficiently indicated by a portion of the bill of exceptions, to which we shall refer in this connec
“Q. Now state, if you please, what that conversation was.
“Mr. Shields: Now I object to that, as incompetent, irrelevant, and immaterial, and as calling for testimony tending to vary the terms of a written agreement between the deceased and the defendant, and for the further reason that it appears from the question that the contract, if any was made, was in the nature of a.will disposing of property after the death of the decedent and, not being in writing witnessed by two witnesses in the form of a will, is void.”
“Counsel for the defendant thereupon offered to show by the testimony sought to be elicited by the question objected to that the testatrix had told witness that the money had been by her entrusted to .Taylor upon an agreement between them that Taylor would pay testatrix $80 each year as interest and such portions of the principal as she would require, and, that when she died, whatever balance had not meantime been paid to her was to become the property of Taylor. The objection was sustained and the proposed evidence was excluded. We are asked to consider the alleged error in this ruling of the court, notwithstanding the fact that there has been filed neither a motion for a new trial in the district court, nor a petition in error in this court. The question thus presented is, whether or not an erroneous ruling of the district court, assuming that the ruling was of that class, can be urged on an equitable appeal as ground for the reversal of a judgment when such alleged error has neither been challenged by a motion for a new trial nor by a petition in error. Section 675 of the Code of Civil Procedure provides: “In actions in equity either
Affirmed.