43 Neb. 663 | Neb. | 1895
On the 9th day of March, 1891, Otto Skjelver commenced an action of ejectment against Charles Peterson in the district court of Webster county, in which he filed the following petition:
“The plaintiff complains of the defendant for that said plaintiff has a legal estate in and is entitled to the possession of the following described premises, to-wit: The tract of land heretofore supposed to be the eastern side of the southeast-quarter of section 28, town 3, range 12, Webster county, Nebraska, being the tract included within the north and south lines of said quarter section and bounded on the east by the center of tbe highway left between said quarter by plaintiff and the southwest quarter of section 27, in said town and range, by plaintiff and defendant, — said highway having been recognized by plaintiff and defendant, each of them plowing up to it and no further, for the past thirteen years,— and upon the west by the line of a pretended survey made by W. E. Thorne and — Folden during the summer of 1890. The said defendant unlawfully withholds possession of said land from plaintiff and has withheld the same since the 1st day of March, 1891. The defendant, while unlawfully in possession of said premises, has received the rents and profits therefrom from the 15th day of October, 1890, to the commencement of this action, amounting to-the sum of one hundred dollars, and has applied the same to his own use to the plaintiff’s damage in the sum of one hundred dollars. The plaintiff therefore prays judgment*665 for the delivery of the possession of said premises to him and also for said sum of one hundred dollars for said rents and profits and costs of suit.”
The answer filed on behalf of Peterson was a general denial. A jury was waived and the first trial had to the-court. There was a finding and judgment in favor of Peterson, which was set aside at his request and a new trial ordered. At a subsequent term of court the second trial-occurred before the court and a jury and Skjelver was successful, the jury returning a verdict in his favor. A motion for new trial was filed by Peterson, argued and overruled, and judgment rendered on the verdict, and Peterson-has prosecuted error proceedings to this court.
As will be gathered from the petition, the main dispute-in this case is in regard to the boundary or division line-between the southeast quarter of section 28, township 3,. range 12, in Webster county, and the southwest quarter of section 27, in the same town and range. The first tract: described is owned by Skjelver and the second by Peterson. The exact location of the southeast corner of the southeast-quarter of section 28, or the corner common to sections 28, 27, 33, and 34, was, and now is, the main point to be determined in the controversy, for the ascertainment of its true position will settle the starting point of the division-line between the two quarter sections and effect an adjustment of it and the dispute. Skjelver’s right to the land,, by virtue of adverse possession for the statutory period, was also put in issue and tried.
The second, third, and fifth assignments of the petition-in error are first considered by counsel for Peterson in-their brief, and it is there stated: “They present the question whether it was competent for plaintiff below to prove the-existence of government corners by parol evidence, without first accounting for the absence of the official record of the survey,” or, in other words, that the field notes or record of the government survey and the plat are primary,.
The sixth assignment of error refers to a motion made
. One contention of counsel for plaintiff in error which we think best to notice here is that the verdict was not sustained by the evidence. The testimony develops that the southeast quarter of section 28, the Skjelver land, was first occupied by Hans Tullifson in 1872 or 1873, who abandoned it very soon, probably a month after settling upon it. It was then occupied by one Gunnard, who in 1876 surrendered his claim to Skjelver, who then entered into possession, and by whom it had been retained up to the time of the trial of this case. The adjoining, or southwest, quarter of section 27 was purchased by Peterson during the year 1878, and he then and has since occupied it. Tullifson testifies that when he took possession of the southest quarter he found the corners, including the southeast one, and in his search for this particular corner he found a stone which had apparently been placed there to mark the position of the corner; that he threw up a mound where he had found the stone, and put a stick in the mound. The field notes were introduced in evidence on the part of plaintiff in error, and one of the statements therein contained was as follows : “Set a limestone 18x16 x4 in. thick for a corner to sections 27, 28, 33, and 34.” This was the disputed corner. When Skjelver entered into
The ninth assignment of error is as follows: “ The court erred in giving instructions 2 and 3, given on its own mo
The assignment of error in relation to the refusal to give instructions offered by plaintiff in error and in modifying some before reading them, is too general, in that the instructions, the refusal to give or modification of which is complained of, are stated collectively, and an examination convinces us that at least one was properly refused, the grounds sought to be covered by it having been fully embodied in others which were given; and some were not applicable to the evidence, and having determined that any one of them was properly refused, under the established rule, of this court we need not further consider them. (Hewitt v. Commercial Banking Co., 40 Neb., 820.) As to those modified, we are unable to perceive wherein such modification was harmful to the rights of plaintiff in error.
Complaint is made, in the fourth and seventh assignments, of the action of the trial court in sustaining objections to questions propounded to Mr. Campbell, one of the witnesses for defendant in error, and to Skjelver during cross-examination, and excluding the testimony sought to be elicited by such questions. To some, if not all, of these interrogatories these objections were properly sustained, for the reason that they were without the province of a proper cross-examination. To others the answers would have been wholly immaterial, and the -same facts had been, or were afterward, shown both on direct and cross-examination of other witnesses, and the complaining party was not prejudiced in any degree by the action of the court.
Two of the grounds of the motion for a new trial were as follows:
*670 “3. Newly discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at trial, as shown by affidavit attached hereto, filed herewith, and marked ‘1/
“5. Accident and surprise which could not have been prevented by ordinary diligence, as shown by affidavit filed herewith, marked ‘HP”
There were two affidavits filed in support of these grounds of the motion, in which it was stated that one Thorne was a material witness for Peterson, and that he, unexpectedly to Peterson and his counsel, left Webster county just prior to the time of trial of the case. It is further stated in one of the affidavits that the jury was impaneled for the trial of the case late on Friday, the 19th of February, 1892, and that some one on that day, — it does not appear who, whether an officer or not, — was sent to the home of the witness with a subpoena, and Peterson states in his affidavit that he could not with reasonable diligence have procured the evidence of this witness, Thorne, at said trial. This was not sufficient. It was not shown to be newly discovered evidence. On the contrary, the affidavits filed on behalf of the moving party discloses that both he and his counsel knew of this witness and to what he would testify, and fail to show any reasonable diligence in obtaining his presence during the trial. The district court was clearly right in its rulings on these grounds of the motion for a new trial.
Accompanying the motion for new trial were several affidavits tending to show misconduct of jurors during the trial, and also setting forth the influences and reasons, as given by jurors after the verdict was returned, which had operated on their minds and caused them to form the conclusions which were embodied in their verdict rendered. Motions were made by defendant in error to strike these affidavits from the files, and were sustained. This, we think, was error. The motions should have been overruled,
Affirmed.