52 Neb. 133 | Neb. | 1897
This was an action brought by Lederer & Strauss, a copartnership doing business in Dus Moines, Iowa, and the State Savings Bank of Des Moines, against the Union Savings Bank of Lincoln, Nebraska, the object being to declare a trust on behalf of the plaintiffs as against the defendant for a portion of a judgment in favor of one Louie Meyer, and by Meyer assigned to the defendant. There was a decree for the plaintiffs, and the defendant appeals. The defendant demurred to the petition on the grounds, first, that there was a defect of parties defendant, and second, that the petition did not state facts sufficient to constitute a cause of action. The first ground of demurrer was based on the fact that Louie Meyer was not made a party defendant. It is provided by the Code that the defendant may demur to the petition when it appears on its face “that there is a defect of parties plaintiff or defendant.” (Code of Civil Procedure, sec. 94.) Also, that “When any of the defects enumerated in section 94 do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall
The remaining questions go to the merits of the case. One John H. Witte executed two notes, — one for $200, payable to the order of Lederer & Strauss; the other for $400, payable to the order of Louie Meyer. The latter note was sold by Louie Meyer to the plaintiff, the State
On the facts presented we think the findings and decree of the district court in favor of plaintiffs were correct. If
It is also contended that the allowance of the claim by the county court constituted an adjudication in favor of Meyer’s ownership. This may be true as between Meyer and the administratrix, the parties to the proceeding, but the plaintiffs were not parties. If Meyer had not assigned the judgment there can be no doubt that the
Affirmed.