Dietrichs v. Lincoln & Northwestern R. R.

13 Neb. 43 | Neb. | 1882

Lake, Ch. J.

Taking the ei’rors complained, of in the order of their assignment, the first one is the refusal of the court to set aside the report of the referee, for the reason that it was not filed within the time named in the order of reference. The ground taken by the plaintiff in error that the mere neglect of the referee to file his report on or before the day fixed for him to do so renders his action under the order of reference nugatory, is untenable. The case of DeLong v. Stahl, 13 Kan., 558, which her counsel cite in support of that position, does not so hold.

In that case it appeared that the refei’ee did not complete his report, or, in other words, did not perform the judicial duty assigned him within the time limited, but afterwards, wherefore it was held that he was at the time functus oficio, and his report unauthorized and void, Robinson v. O'Connor, 12 Neb., 405. The manual act of handing in or filing of reports by referees is not unfrequently delayed until after the time fixed for this to be done, but we have never known one to be held invalid on that ground. Indeed, in Keller v. Sutrick, 22 Cal., 472, it was held that ■such delay, even where the time for filing the report was fixed by statute, was of no consequence, and sustained a report assailed for that reason.

The second complaint of error is based upon the failure to prove the corporate existence of the defendant in error. This point is not avc.11 taken. The existence of the railroad company, and its right to sue, were not in controversy. The ansAver was a general denial, and while this Avas sufficient to put in issue the Avholc matter of complaint, it did not question the due incorporation of the company. National Life Ins. Co. v. Robinson, 8 Neb., 452.

There was no error in the admission in evidence of the depositions of Edward and George Barnes. It is contended that the testimony of these turn witnesses was immaterial, but very clearly it was not. The property in controversy was a dwelling house standing upon a lot purchased by plaintiff’ in error from Edward Barnes through a correspondence had with his brother George. The house, it seems, had been placed upon this lot a very short time before this purchase by thejdefendant in error, and-its character, whether a chattel or‘a part of the realty, was the principal question to be'settled by the trial. Upon this question these depositions were very material, for they show beyond all doubt that Edward Barnes never had nor claimed any right to tire house, and in fact did not even know that it was on his lot at the time of the sale to the plaintiff in error. The fact that as between Barnes and the railroad company there was no question as to the right of the latter to the house — it being clearly personal property, together with the full knowledge of the plaintiff’ in error of the circumstances under which it was placed upon the lot, make it very clear that tire finding of the referee was right, and should be sustained.

The referee did not err in overruling the objection to the admission of the letter, purporting to have been written bv William Deitrich to George Barnes, respecting the purchase of the lot. The letter was competent evidence, and was duly attached to the deposition of George Barnes as a part of the correspondence by which the sale to Dora Deitrich was effected. Even if the objection, that the genuineness of this letter was not proved,were a good one, it came too late. All objections to depositions, except for incompetency or irrelevancy, to be effectual must be made and filed before the commencement of trial.” Code of civil procedure, sec. 390.

Upon the trial the plaintiff in error offered to show that in the removal of tire house under the order of replevin, damage was done to certain of her personal effects therein. This offer was wholly immaterial, and in rejecting it the referee ruled correctly. That was a matter that could not be properly adjudicated in this action, which concerned only the claims of the respective parties to tire house.

The lease from the defendant in error to the Burlington and Missouri River Railroad Company was properly rejected. It was wholly immaterial to the defense, and could not possibly have aided the plaintiff in error*, for the reason that it expressly provides for the continued use of the corporate name of the lessor by the lessee “in and about any legal proceedings and suits, either at law or in equity.”

The question of the want of notice to quit raised by counsel for the plaintiff in error in their brief is not in the record. No reference is made to it in the referee’s report, nor in the motion for a new trial, therefore it is not before us. The case appears to have been fairly considered by the referee, and a just conclusion reached.

Judgment affirmed.