88 Neb. 610 | Neb. | 1911
W. P. Marquis and John A. Marquis are father and son. The father resides in Grand Island, the son in Central City. In July, 1906, the plaintiff, a resident of Grand Island, and the elder Marquis jointly purchased 101 horses, which they subsequently sold. The evidence is uncontradicted that the younger Marquis furnished his father the money invested by him in these horses, but the evidence is conflicting as to whether the plaintiff knew that fact at the time of the purchase. The evidence tends strongly to prove that the plaintiff acquired such knowledge within a few Aveeks of that time, and before many of the horses were sold, and there is evidence tending to prove that the plaintiff subsequently, by his conduct, rec
The plaintiff, among other things, alleges that W. P. Marquis is insolvent, and that the father and the son are in collusion with respect to the suit in the county court for the purpose of defrauding him. John A. Marquis moved to dissolve the injunction, but was denied relief. He then answered, denying the jurisdiction of the district
There is nothing in the transcript to advise us whether W. P. Marquis answered in the district court; notice of appeal was not served upon him, and he has not appeared in this court. The plaintiff argues that there is a defect of parties and that we should not consider the case upon its merits. The objection is not otherwise presented than by an argument in the brief, and was not brought to our attention until John A. Marquis had submitted the case upon the merits. Upon the authority of Bates-Smith Investment Co. v. Scott, 56 Neb. 475, the objection will be held to have been presented too late for consideration.
In an action at law either party is ordinarily entitled, as a matter of right, to a jury trial upon all questions of fact. Const., art. I, sec. 6; Mills v. Miller, 3 Neb. 87; Lamaster v. Scofield & Cowperthwait, 5 Neb. 148; Kinkaid v. Hiatt, 24 Neb. 562; Risse v. Gasch, 43 Neb. 287; Lett v. Hammond, 59 Neb. 339; Yeiser v. Broadwell, 80 Neb. 718.
We do not agree with the plaintiff’s counsel that the facts in the instant case create any exception to the general rule, or that their client did not have an adequate1 remedy at law by defending against John A. Marquis’ demand. If the account were stated with the elder and not the younger Marquis, and the younger man did not have1 title to his demand, those facts could be proved befe>re a jury as effectually as before a court. There were no unsettled equities between Olsen and his former partner groAving out of that relation. If the account at any time was the property of W. P. Marquis, he could not assign it free from any right of set-off existing between himself and Olsen. Code, secs. 31, 106. Tf, as between the elder and the younger Marquis, the $301.52 was the property of the
The fact, if fact it be, that Olsen contends for a partnership with'W. P. Marquis is immaterial in the light of the fact that their business had. been settled. The fact that there was an unsettled store account between them would not justify a recourse to this action. Lamaster v. Scofield & Cowperthwait, supra. Nor can the plaintiff justify his conduct on the theory that his action is in the nature of a suit in interpleader. W. P. Marquis makes no claim to the money, nor is the plaintiff impartial in his attitude with respect thereto, but asserts the right to retain it as his own.
The judgment of the district court, therefore, is reversed and the cause is remanded, with directions to dissolve the injunction and to dismiss the action as to the defendant John A. Marquis.
Reversed.