Bragonier v. Stevenson

104 Neb. 578 | Neb. | 1920

Rose, J.

This is a suit in equity to cancel two notes aggregating $1,100 and a mortgage securing them. Defendant sold to plaintiffs a one-fourth interest in a store at Sholes, and the notes and the mortgage were given for the purchase price. The action is based on the fraud of defendant in misrepresenting the value of the property and the amount of the store’s indebtedness. Defendant denied the fraud imputed to him and prayed for a dismissal. Upon a trial of the issues the district court dismissed the action on the ground that plaintiffs had failed to rescind the contract of sale promptly upon discovering the fraud. Defendant has appealed from the judgment in his favor.

No complaint is made of the judgment itself, but findings that plaintiffs were induced by fraudulent misrepresentations of defendant to purchase his interest in the store and to execute and deliver the notes and the mortgage for the purchase price are assailed as unnecessary, improper, and prejudicial. The relief sought on /appeal is the elimination of these findings. Ordinarily a party cannot appeal from - a judgment granting him the relief demanded by his pleadings. A wrong reason for a correct conclusion of the trial court is generally immaterial on review. The record does not show that the trial judge was asked to correct or reform his findings, or that defendant tendered a proper journal entry. It is the duty of the prevailing party to draw the decree or to assist in preparing it. The judgment being in favor of defendant, he should have given the trial judge an opportunity to correct or reform the findings. ■ Attention to this matter in the court below was required by proper practice and fairness to the presiding judge. Such a course might have prevented the expense and delay of an appeal. It follows that the findings assailed are not reviewable on the record presented. '

Appeal dismissed.

Morrissey, C. J.;, Letton and Flansbtjrc, JJ., not sitting.