62 Neb. 856 | Neb. | 1901
The question in this case is as to the sufficiency of the third, amended answer to set up the statute of limitations against a second amended petition. Trial was had and verdict rendered for defendant, and a motion was made by plaintiff for judgment under section 440 of the Code, which is as follows: “Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.” This section has been held to be equivalent to the common law practice of judgment non obstante veredicto, and such a judgment is only to be rendered when the pleadings of the party, who has obtained a verdict, confess facts entitling the other party to a judgment. Manning v. City of Orleans, 42 Nebr., 712; Gibbon v. American Building & Loan Ass’n, 43 Nebr., 132; Johnston v. Spencer, 51 Nebr., 198. The summons which was served in the action was issued January 24, 1894. The second amended petition sets out a check in favor of plaintiffs dated Cincinnati, Ohio, December 10, 1888, and alleges presentation of it on December 11, 1888, and dishonor and protest; that the statute of limitations in Ohio allows 15 years for an action on such a check; and that at the commencement of this action “defendant had not been a resident of the state of Nebraska five years.”
The answer, which is claimed to entitle plaintiffs to a judgment, is as follows:
“First Defense. — Comes now the defendant, and, by leave of court first obtained, answering the second amended petition herein filed, says: He admits the. execution and delivery of the check set out in' the first paragraph of said petition; and admits that no part of said check has been pain except the sum of $68.12, 'which sum was paid by defendant’s assignee for creditors and accepted by plaintiff ; and admits that the plaintiffs composed and compose the partnership of Conner, Sleet & Co., as alleged in the petition; and. admits that they are the owners of the check
“Second Defense. — Further answering said petition, and for a second defense thereto, the defendant says that on or about the 13th day of January, 1888, this defendant took up his residence and began permanently and legally C reside in the state of Nebraska, and ever since that time has been, and is now, a resident of the state of Nebraska; that the plaintiff’s cause of action herein sued upon, accrued on the 11th day of December, 1888, and that ever since the 3rd day of January, 1888, the plaintiffs have been able to sue the defendant in the state of Nebraska; and that prior to the first day of January, 1889, the said plaintiffs were able to have sued this defendant in the city of Cincinnati in the state of Ohio; and by reason of the facts aforesaid, this defendant says that said plaintiff’s cause of action is barred by the statute of limitations, and this defendant now pleads and relies on said statute of limitations in bar of said plaintiff’s right to recover herein.”
A considerable dispute is raised in the record as to the word “pain,” in the first paragraph. In the transcript, as originally filed, it has been marked over, to render it uncertain whether the last letter is “d” or “n.” It appears, however, that in the original, as filed, it is an “n.” This answer was filed by leave of court during the last trial; the case having been before this court on a former occasion, and a judgment for defendant reversed [56 Nebr., 343]. It is perfectly evident from the context that the pleader meant to use the word “paid,” and the substitution of a letter, which would render the entire paragraph unintelligible, will not be held to defeat his intention, and we shall treat the word as being “paid.”
It is urged that the tAvo defenses of the answer, stated as a first defense and second defense, must be construed separately, and unless there is enough in "either one or the other of them, taken by itself, to establish a defense, the motion for judgment for plaintiff must be sustained. Counsel cite Catlin v. Pedrick, 17 Wis., 91, to this proposition that separate counts must be separately construed. Such a doctrine is certainly laid doAvn in that case, but it is to be observed that the court was dealing not with a motion for judgment, but a demurrer to each of separate counts, and not with the statement of a defense, but with the statement of a counter-claim, and is holding that the pleader, who has stated a part of his facts in making the one counter-claim, and part of them in making another, can not complain on the sustaining of the demurrers to each of them that the court did not consider them both as one. We are here, however, dealing with a motion for
This pleading, even harshly construed, does not indicate a right of recovery on plaintiff’s part.. It is therefore recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.