63 Neb. 296 | Neb. | 1901
This is an action for breach of promise of marriage, in which the trial court rendered judgment for defendant and dismissed the action, notwithstanding a verdict for plaintiff in the sum of $700. The final action of the trial court was in terms as follows:
“On this 11th day of May, 1898, this cause came on for hearing upon the motion of the defendant for a judgment upon the pleadings notwithstanding the verdict of the jury, and the court being of opinion that the defendant is entitled to judgment upon the statements in the said pleadings, and being fully advised in the premises, does sustain said motion; to which ruling of the court the plaintiff at
“It is therefore ordered, considered and adjudged by the court that the defendant, George I-Iaslam, go hence without day, and recover of and from the plaintiff, Marie Barge, his costs herein expended, taxed at $2.10; to which judgment the plaintiff at the time duly excepted.”
Counsel for defendant in error make some claim that this action of the court can be supported on the ground that there was no legal evidence submitted at the trial to support plaintiff’s cause of action, even if it is found that one was alleged. It does not seem possible that this judgment can be sustained on any such ground. It is true that defendant’s motion was to defer judgment on the verdict rendered, as well as to enter judgment for defendant non obstante veredicto. It is claimed on defendant’s behalf that, when the formal order to defer judgment on this verdict was entered, this, under section 439 of the Code, gave the court authority to pass upon the facts in the case, and render such judgment as was required-upon the evidence submitted. A somewhat careful examination of the authorities cited by the defendant fails to uphold this contention. But it is not necessary to decide the point in this case. The learned trial court did not assume to pass on the facts, but only on the pleadings. It would seem that the only circumstances under which the court has authority to enter judgment without a verdict or finding to support it, is when the pleadings on their face disclose a right to such judgment on the part of the successful contestant. The only finding made by the court here is that the defendant is “entitled to judgment upon the statements in the pleadings” and, unless that finding can be upheld, the judgment must be set aside. Only the pleadings, therefore, will be examined, to determine as to whether or not this judgment should be affirmed.
The petition alleges the residence of the defendant, under the name of George Haslam, in Dodge county, for many years; that on or about July 1,1891, both being then
The question remains Avhether the pleading is sufficient, liberally construed, as it must be after a Amrdict upholding it, to amount to a declaration of a subsequent and valid agreement within the time. Assuming that the original agreement of 1890 or 1891 was void in fact for the reason claimed by the defendant, does it sufficiently appear from plaintiff’s petition that a subsequent agreement in writing or orally, to a similar effect, or a similar purpose, and in the same terms, was made, which was not Avithin the statute? In our opinion, while the petition would be entirely unavailing to sustain an assault by way of motion that it be made more specific, it would not be amenable to a general demurrer on the ground that it discloses only a contract void under the statute of frauds. Doubtless, if the pleader intended to rely on any subsequent agreements as the basis of his action, he could and would, on an application' for that purpose, be compelled to state them more specifically than merely to say that they were the same as a void one previously alleged; but where the defendant has gone to trial upon such allegations, and a jury has not only found in favor of the plaintiff, but has found specifically, and on defendant’s application, the facts which take the case out of the statute, it Avould seem that the judgment should not go in favor of the defendant merely because those facts are defectively stated in the petition. Of
The conclusion of the learned trial court that the pleadings disclose a right on defendant’s part to a judgment, being unsupported, it must be reversed. There appears to be in the record a motion for a new trial, which has never been acted upon. This became unimportant on the sustaining of defendant’s motion for a judgment. Defendant seems entitled to have this acted upon by the trial court, and it seems, therefore, impossible to direct the entry of any final judgment at this time. It is therefore recommended that the judgment of the trial court be reversed, and the cause be remanded for further proceedings.
By the Court:' For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.