Lonergan v. Lonergan

55 Neb. 641 | Neb. | 1898

Irvine, C.

This was an action by Thomas Lonergan against Simon J. Lonergan on a judgment alleged to have been recovered in Leavenworth county, Kansas. Tbe plaintiff bad judgment and tbe defendant brings tbe case here for review.

Tbe numerous assignments of error may be grouped into a few classes. One class relates to tbe refusal of tbe trial court to permit tbe defendant to introduce certain evidence for tbe avowed purpose of establishing a set-off or counter-claim against the demand of tbe plaintiff. There were no issues made by the pleadings to winch such evidence was relevant. Defendant sought to inject such issues into the case, but was precluded from doing so by rulings of the court on motions. The questions sought to be raised properly relate to these rulings and not to rulings upon the evidence as the issues were finally made up. Evidence not relevant to the issues should be excluded, even though the court may have erred in excluding from the pleadings matter which if it remained would have made such evidence relevant.

As stated, the suit was on a judgment recovered in Kansas. The defendant in his answer set up many facts from which it was claimed that a set-off or counter-claim resulted. From the answer it also appeared that the Kansas judgment had been the result of litigation between partners, and all the matter set up in the answer related to partnership transactions prior to the proceedings in Kansas. The court on motion struck from the answer these averments. Subsequently, an amended answer was filed without leave and was stricken from the files. The defendant then moved for leave to file such amended answer and such leave was refused, for the reason that the amended answer did not constitute a defense. All these rulings are complained of, but we need not review the proceedings in detail, because from the transcript of the proceedings in Kansas, subsequently offered in evidence, it appears that they took the form of an accounting between partners, all the matters stricken from the answer and the amended answer in this case' were then pleaded, and the record shows an adjudication thereof. They could not, therefore, be successfully pleaded in this case, and if it was error to strike them from the pleadings it was error without prejudice to the defendant. A reply of res judicata and the offer in evidence of the transcript would have estopped the defendant as to such matters if they had been permitted to remain in the record. It is asserted, it is true, that the action in Kansas was an action of-deceit and that the court in that action urns without authority to take an account of tbe partnership transactions. While this won! d affect only the regularity of the proceedings and not the jurisdiction of the court to render the judgment, it may be observed that the defendant in that case pleaded the matters which he here tries to assert, and asked that the accounting be had.

One of the defenses not stricken out was an averment that the Kansas case had been taken to the supreme court of that state for review and that the judgment sued on had been thereby superseded. The evidence is possibly sufficient to show that the ease had been appealed, but the Kansas statute offered in evidence shows, that a su-persedeas is there effected only by order of the supreme court, and there is no evidence of such an order. It is argued that a supersedeas should be presumed, but we think not. An appeal or a proceeding in error does not here operate as a supersedeas of itself, and the Kansas law, so far as it was proved, indicates that the same is true in that state: The burden was on the defendant to show that the judgment had been superseded.

The Kansas judgment is assailed for several reasons, but all these go to the correctness of the proceedings and not to the jurisdiction of the' court or to any other matter reaching the validity of the judgment. However erroneous the judgment may have been we must enforce it when invoked here, unless it was void.

But, it is.said, the proceedings were so plainly erroneous that it is clear that the supreme court will reverse the judgment. We cannot inquire into the regularity of those proceedings even on that theory. The judgment, was rendered, the court had jurisdiction, no fraud in obtaining it is shown, and it does hot appear that it ha.s yet been reversed or its operation superseded. We must, give it full faith and credit and not anticipate a reversal. If it should be reversed, perhaps the defendant by appropriate proceedings may have relief against the judgment, here rendered and based thereon, but while it stands its correctness must be- presumed.

It is said that there was a failure to prove the representative capacity of-the present plaintiff. While Thomas Lonergan brought the action there was filed what is called a supplemental petition by Mary A. Lonergan, alleging his death and that she had been appointed and had qualified as executrix of his will. No order of re-vivor appears to have been made, but the defendant answered the supplemental petition and did not deny any of the averments from which flows the right of the present plaintiff to maintain the suit. No evidence was therefore required as to those averments. Finally it is said that the court erred in trying the case in advance of other cases set for trial. No facts appear to support such an assignment, even if its soundness in, law should be conceded.

AFFIRMED.