68 Neb. 117 | Neb. | 1903
Plaintiff in error filed in the county court a petition, duly verified, alleging that he was one of the heirs at law of Joseph Genau, deceased; that an instrument purporting to be the last Añil of said Joseph Genau had been admitted to probate in said court; that he had no actual knoAidedge that such Avill Avas to be offered for probate or probate proceedings had on the day Avhen the order of probate was made, and was informed by the sole beneficiary of the Avill, and led to believe, that it would only be opened and read at that time; that he Avas not present when the subscribing witnesses Avere examined and the will probated, and did not know of such action till afterward; that he Avas afforded no opportunity to make and file objections; and that, before the time for an appeal had elapsed, he Avas induced to abandon the matter and suffer the order to stand without appeal, by ,a contract of settlement entered into between himself and the beneficiary of the Avill, Avhich said beneficiary aftenvards repudiated. He attaches as an exhibit certain objections to probate of the Añil, under oath, which set up, on their face", good and substantial grounds of contest, and makes them a part of his petition. He prays to have the order admitting the Avill to probate set aside, for a hearing upon his objections, and for general equitable relief. A motion was made to strike this petition from the files, which was granted, and the judgment of the district court affirming such action is assigned as error.
It is contended, hoAvever, that the motion to strike the petition from the files Avas intended as a demurrer, and that the error is without prejudice. It is probably true that the petition’is obnoxious to motion with respect .to its form in some particulars, and .the manner in Avhich the allegations that, plaintiff has a good defense to proceedings for probate and substantial grounds for contesting the Avill are incorporated is not to be commended. It may be, moreover, that there are matters in the prayer which might be amended. But under the Cede, all that is essential is a statement of facts showing a cause of action and a prayer for general equitable relief. Merriman v. Hyde, 9 Neb. 113; Pefley v. Johnson, 30 Neb. 529; Skinner v. Skinner, 38 Neb. 756; Ball v. Beaumont, 59 Neb. 631. Neither the fact that the petition may be informal or open to objection in respect of particular allegations, nor the fact that the record in the probate pro
We recommend that the judgment of the district court be reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district-court is reversed and the cause is remanded.
Reversed and remanded.