58 Neb. 648 | Neb. | 1899
This ivas ejectment brought by Daniel F. La Bonty to recover certain lands in Cuming county, and for rents and profits thereof. A trial in the district court terminated in favor of the defendant, and plaintiff brought the record to this court for review, where a judgment of reversal was entered at the January term, 1891. (31 Neb. 419.) Upon a retrial in the court below defendant again prevailed, and the plaintiff prosecuted an error proceeding,
The judgment in favor of defendant in the sum of $1,439.16 was entirely erroneous and must be set aside, since the record before us shows that whatever title or interest Limdgren ever had in the land had been divested and transferred to the intervener Atwood long prior to the entry of said judgment, by virtue of a judicial sale of the property and deed issued in pursuance thereof. Lundgren, when the value of the improvements was assessed, had no claim of title to the real estate, was not in possession of the premises, and could not avail himself of the benefits of the occupying claimants’ act. The right to recover for these improvements had passed to the intervener.
The court did not err in denying the application of plaintiff to ascertain the value of the rents and profits for the four years preceding the bringing of the suit, for the reason that the application was not seasonably made. Plaintiff should have proven his damages on the trial which terminated in the rendition of the ejectment judgment. The clause attached to the judgment quoted above is not broad enough to permit the recovery of rents and profits which accrued prior to the issuance and service of summons, but as we construe the provision, the cause was merely continued for the purpose of proceeding under the act for the relief of occupying claimants, under which proceeding plaintiff was entitled to have considered the value of rents and profits subsequent to the service of summons, and not prior to that time. The judgment of June 22,1895, is
Reversed.