64 Neb. 208 | Neb. | 1902
There are thirteen assignments of error in this case, but in reality the errors complained of are three: First, error of the trial court in instructing a verdict for plaintiff below, defendant here; second, error of the trial court in rejecting as evidence Exhibit 10 of defendants at the trial, the record of a so-called final settlement of the defendant administrator, Schmela, in 1887; and, third, error in overruling defendant’s objection to any evidence in the court below, because the petition showed an action barred by the statute of limitations. Unless the record discloses error in one or the other of these three particulars, the judgment must be affirmed. Errors are alleged in rejecting evidence “which would have shown” various things, but what the evidence was, at which this complaint was directed, we have no means of knowing. The defendant Ferdinand Schmela was, in September, 1878, appointed administrator of the estate of Andrew Bergthold, in Cuming county, Nebraska, and the other defendants were sureties on his bond in the sum of $1,500. The petition alleges that Schmela entered upon his duties as administrator, and continued to exercise the office until April, 1887, when he ceased to be administrator, but without any final settlement; that in December, 1897, upon a hearing on his final report, a decree was entered by the county court for Cuming county that Schmela pay to the heirs at law of Andrew Bergthold, three in number, the sum of $1,642.88 each; that tAvo of the heirs assigned their interest to the third, who was plaintiff below; that Schmela did not pay any part of the sums decreed; that plaintiff demanded them. Sheasked judgment for the whole amount,
The instruction of the trial court for a verdict was evidently based upon the proposition that the decree of the county court requiring these payments was valid; that the failure to make them was a breach of the condition of the bond, and the principal was liable for the amount of such payments, and the sureties to the extent of the penalty. Under this view of the law nearly all the allegations of the answers, except the denial of the decree of December 31, 1897, became unimportant. If the foundation of the action was a valid decree of the county court, dated December 31, 1897, manifestly the objection that this action, which was begun December 31, 1898, was barred by the statute of limitations, would have no weight.
An examination of the record shows that due proof was made of the county court’s decree, as alleged by the plaintiff. The demand for payment under it, and the refusal, are admitted, as are also the execution of the bond and the assignments to plaintiff by her co-heirs. This would seen' sufficient to make out a prima-facie case for the plaintiff. The various matters tendered in evidence by the defense principally related to matters leading up to the decree of the county court of December 31,1897, and the objection that they were res adjudicata seems to have been well taken and properly sustained.
The complaint because Exhibit 10, which is claimed to be a final discharge of defendant Schmela, as administrator, and its confirmation by the district court of Cuming
With the prima-facie case made out by plaintiff,-and the evidence of defendant properly refused, there was nothing for the court to do but to instruct for a verdict as it did. It appears, therefore, that there was no error, either in instructing for the verdict, in rejecting the evidence of the so-called final settlement in 1887, or in holding that the action was not barred by the statute of limitations.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.