94 Neb. 338 | Neb. | 1913
The substance of the petition is that on January 14, 3908, plaintiff, then a man 48 years of a.ge, by occupation a farmer, was in good health and successful in his occupation and business, from which he received annually the sum of $1,000 and upwards; that the defendants William Boudreau and Leonel Boudreau were then engaged in the
One Frank Robbins was also joined as a defendant, but by direction of the court he was released from liability.
The defendants answered separately, but in like terms, in which answers they deny all allegations not admitted to be true; allege that the petition does not state facts sufficient to constitute a cause of action; that any injury
The defendants insist that plaintiff was a party plaintiff in the suit by Sophie Henkel, his wife, against these defendants, as set out in their answers, and that whatever claim he may have had against the defendants was finally adjudicated in that case. This contention is based upon the ground that plaintiff never was dismissed out of that case, as it was originally commenced, either by order of the court or by any action of record of plaintiff himself. That case went to judgment, and was appealed to this court, where the judgment was affirmed. Henkel v. Boudreau, 88 Neb. 784. It is undisputed that when that case was originally- commenced the plaintiffs named in the title to the case were Mrs. Henkel, the five children, by Mrs. Henkel as their next friend, and August Henkel, plaintiff in this case. Defendants assailed the petition upon various grounds, and leave was given plaintiff to file an amended petition. In the amended petition August Henkel’s name was dropped. The opening paragraph of the amended petition recites: “The plaintiff complains of the defendants and for cause of action shows unto the court in her own right and as well as the next friend for her minor children as follows,” etc. In the amended petition specific items, which the original petition counted on in favor of August Henkel, are omitted. When defendants answered in that case, they answered the amended peti
In Grimes v. Chamberlain, 27 Neb. 605, this court held: “An action may be dismissed without prejudice to a future action by a plaintiff before the final submission of the case to the jury or court where the trial is to the court (sec. 430 of the civil code); and such dismissal may be made at the option of the plaintiff without leave of the court. It is a right specially given by statute which the court has no power to refuse.”
Under the authority of the above case, August Henkel had a perfect right, before the original case was submitted, and certainly before issue had been joined, to dismiss that case so far as he was concerned. The formal way would have been to have obtained an entry on the docket of the court shoAving such dismissal, but, the case having subsequently been tried on issues joined between the defendants and the remaining plaintiffs, the irregularity, if it be such, cannot now be urged. An examination of the instructions in the abstract before us shows that the trial court carefuly safeguarded the defendants against any possibility of allowing plaintiff to recover for anything for
This ease was filed in this court while the abstract law was in force, and was submitted upon an abstract prepared by defendants. So far as the abstract shows, no verdict was ever returned by the jury. The abstract does not inform us why no verdict was returned, nor does it set out any motion for a new trial. All that it states is: “December 24, 1910,' separate motions for new trial Avere made by Leonel Boudreau and the United States Fidelity & Guaranty Company. Motions were severally OA^erruled and exception taken, and judgment was rendered by the court.” In this condition of the record, all that we can consider is the sufficiency of the pleadings to sustain the judgment.
That the petition states a cause of action is the settled law of this state. Buckmaster v. McElroy, 20 Neb. 557. This opinion is v’gorously assailed by counsel, but it has been frequently referred to and folloAved in subsequent decisions by this court. Counsel say that the case has been much criticised by other courts and text-writers, and also by this court. It is true the decision in that cáse was criticised in a dissenting opinion by one member of the court at tfie time it was decided. The subsequent criticism by this court, to which counsel refers, is evidently the statement by Judge Post in Curtin v. Atkinson, 36 Neb. 110, where the judge says: “And in Buckmaster v. McElroy, 20 Neb. 557, it was held that one who had suffered injury in consequence of his own voluntary intoxication may recover on the bond of the saloon-keeper from whom, the liquor was procured. We are not disposed to recede from the position taken in previous decisions, notwithstanding the last-named case has been the subject of no little criticism, particularly by Mr. Black in his recent work on Intoxicating .Liquors, sec. 291. But to further extend the liability of the saloon-keeper would be a palpable misconstruction of the liquor law and an unmistak
As above stated, the petition states a cause of action. We have examined the instructions given by the court and find that they respond to the issues tendered by the pleadings. There is nothing before us to show that the motion for a new trial, which counsel say was filed, challenged the correctness of any of the instructions, or any of the rulings of the court during the trial, or the sufficiency of the evidence to sustain the verdict. This being true, there is nothing left for us to do but affirm the judgment.
Affirmed.