57 Neb. 246 | Neb. | 1898
In this case there was a judgment in the district court of Cass county against Benjamin A. Gibson and Francis N. Gibson for the sum of $1,412.50. The action was oue in equity to subject certain described real property to the
The judgment against Francis N. Gibson, however, cannot receive the same sanction, because of different conditions, which we shall- now consider. There was in the petition no averment of any fact which would indicate that the real property sought to be reached had been conveyed or incumbered by Francis N. Gibson. The relief which plaintiff was entitled to, upon the averments of his petition, was restricted to the appropriation of the land described to the payment of plaintiffs judgment against Garter. The finding that the property had been sold by Benjamin A. and Francis N. Gibson was, in so far as Francis was concerned, a finding not responsive to any issue presented by the petition. It may be that there was evidence to sustain this finding, but in that event the rule applicable is thus stated in the syllabus of McGarock v. City of Omaha, 40 Neb, 64; “Facts which
Judgment accordingly.