99 Neb. 735 | Neb. | 1916
This is an appeal from a judgment of the district court for Cass county sustaining a demurrer to plaintiffs’ hill in equity, by which it was sought to establish the interest of defendants’ decedent in certain property, and to enjoin the levy and collection of an alleged judgment of the county court of that county, and dismissing the action.
It was averred in the petition that plaintiff, George E. Dovey, was the administrator of the estate of his father, E. G. Dovey, who departed this life in the year 1881; that deceased left surviving him his widow, Jane A. Dovey, and his sons, Horatio N. Dovey, Oliver C. Dovey, and the plaintiff, George E. Dovey; that Jane A. Dovey. departed this life in the year 1913, and that Prank E. Schlater was appointed special administrator of her estate; that, upon a petition to the county court by said Schlater, the plaintiff, George E. Dovey, was cited to appear and render his account as administrator of the estate of his father, E. G. Dovey; that he rendered a true and correct account of his administration of the estate of the deceased; that his account was wrongfully disallowed, and he was surcharged by the court with the amounts alleged by Schlater to be due the estate of Jane A. Dovey; that a judgment was rendered against the plaintiff, George E. Dovey, as administrator of his father’s estate,' for the sum of $54,297.64, and in favor of the estate of his mother, Jane A. Dovey; that such judgment was rendered without any order of distribution ever having been made; that the other heirs of the estate of E. G. Dovey were never cited to appear; and were not parties to the proceeding; that the alleged judgment was filed in the office of the clerk of the district court for
The petition and proceedings cover some 75 pages of printed matter, but we have only stated the substance of some of the allegations in order to show the nature of the action.-
The record discloses that Oliver C. Dovey demurred to the petition for the reason that the facts alleged therein do not constitute a cause of action' against him or entitle the plaintiff, George E. Dovey, to any relief. Defendant Prank E. Schlater filed an extended answer to the petition. The defendant Horatio N. Dovey also answered to the merits, and prayed that the petition of plaintiff, George E. Dovey, be denied, and to these answers said plaintiff replied. When the petition was filed the court issued a restraining order. The cause came on for hearing, and the district court sustained the demurrer of Oliver O. Dovey, and without taking any evidence, and without any further trial or hearing, held that the facts stated in the petition did not entitle the plaintiff, George E. Dovey, to any relief, and the action was dismissed.
When the appeal was lodged in this court, plaintiff George E. Dovey made application for a restraining order, which was allowed. Thereafter the defendant Schlater moved to vacate the order, and the ruling on the motion was continued to the time of final hearing.
As we view the record, the petition stated facts sufficient to constitute a cause of action and entitle the appellant to a trial of the case on its merits. This is an action wherein all the parties are brought before the court for the determination of their rights, and is the
If it should appear from the evidence that Jane A. Dovey retained her interest in the partnership property, and consented to the investment and use in the partnership business of her interest in the estate and property of E. G-. Dovey, and drew money from the said business as an interested partner therein for many years, then her administrator would be estopped to deny those facts. The trial court should determine whether Jane A. Dovey in her lifetime made a settlement with the other parties interested in the business and transferred to them all of her interest in the business, as alleged in the petition. If it is found that no such agreement and transfer were made, then the trial court should determine the nature of the interest, if- any, she had in the partnership and its value at the time of her decease, which should be decreed to her administrator for distribution under the order of the county court. If either of the partners in said business applies for that-purpose, the partnership should be dissolved and the interest of each partner in the assets should be determined.- The pleadings will be amended, if desired, and evidence taken.
We are of opinion that the judgment of the trial court should be reversed and the cause remanded for further proceedings, and that in the trial of the cause the litigation among all of the parties should be settled by giving to each his due, and making each of them respond to the full limits of their respective obligations.
The judgment of the district court is reversed and the cause is remanded for further proceedings, in accordance with the views above expressed.
Reversed.