113 Neb. 145 | Neb. | 1925
This is an action to recover $5,000 with interest as money had and received by the defendant for the plaintiff’s assignor. The plaintiff alleges the execution of a note for $10,000 by his assignor, Noyes, secured by mortgage on real estate in Nebraska and Wyoming, from the proceeds of which loan $5,000 was paid to persons designated by Noyes, and the remaining $5,000 was converted by the defendant, and the defendant thereby became indebted to Noyes in the sum of $5,000 with interest thereon for money had and received, which claim was assigned to the plaintiff, who is the owner thereof. The answer is a general denial. There was a verdict by a five-sixths jury for the amount prayed, $6,071.38. The motion for a new trial was overruled and judgment rendered for the amount of the verdict. From this judgment the defendant appeals to this court.
The circumstances out of which the loan of $10,000 arose was a sale to Noyes by one Gonser of mining stock at the agreed consideration of $5,000. The loan of $10,000 was negotiated through the defendant Boatsman, who was, at that time, president of the Farmers & Merchants Bank at Morrill. The defendant had also been an officer in the mining corporation whose stock was sold to Noyes, and it would seem from the evidence that he got $2,000 out of the Noyes transaction as his share in the deal.
The errors upon which the appellant relies will be considered in the order of their assignment. Assignments 1 and 2 insist the verdict is not supported by evidence. Noyes, the payor of the note, testified that there was to have been retained, in the Farmers & Merchants Bank, for him, out of the proceeds of the $10,000 loan, the sum of $5,000. The defendant denies that he promised to hold the $5,000 in the bank for Noyes, and the defendant and his wife testified that the arrangement at the time of the loan was that the entire $10,000 was to be placed to the credit of one Gonser. The deposit slip of the bank and its
It was a proper case to go to the jury, and a finding for either party should be allowed to stand.
The defendant complains that neither the verdict nor record shows that the jury deliberated at least six hours, and assigns this as prejudicial error. The presumption is, in the absence of proof to the contrary, that the proceedings of a court of general jurisdiction are regular, and that presumption should prevail in this case. Saxon v. Cain, 19 Neb. 488; Parsons v. State, 61 Neb. 244; Armstrong v. Great N. R. Co., 131 Minn. 236; Daly v. Falk & Co., 131 Minn. 231.
This case was commenced on April 25, 1921, and before the act of February 19, 1921, which authorized the return of a verdict by five-sixths of the members of a jury, went into effect. The return of this verdict by that number is assigned as error. “A litigant has no vested right in the mode of procedure.” Norris v. Tower, 102 Neb. 434; Miami Copper Co. v. State, 17 Ariz. 179, Ann. Cas. 1916E, 496; Roenfeldt v. St. Louis & S. R. Co., 180 Mo. 554.
Assignments 9 to 17 are based upon rulings of the court as to the admission and exclusion of evidence. They have each and all been examined and disclose no prejudicial error.
The judgment is
Affirmed.
Note—See Constitutional Law, 12 C. J. sec. 583—Stat-utes, 36 Cyc. 1216.