57 Neb. 644 | Neb. | 1899
This equitable action was commenced by creditors of an insolvent corporation against its stockholders to re
The plaintiffs and the intervener Blakely have declined to discuss the sufficiency of the new pleadings, filed by them in the case. They do not attempt to show that the amendments were substantial, but' seem to rest their claim to a reversal of the judgments on the proposition that they had a strict and absolute right to amend, and to a trial, in the usual way, of the sufficiency and truth of their allegations. The Brush Electric Company stands upon the proposition that the vacation of the order dismissing its cross-petition was reversible error. On the other hand, the appellees contend that the power of the court, under the mandate, was limited to entering the judgment that should have been rendered at the conclusion of the trial. We think it perfectly clear that neither the position of the plaintiffs and Blakely, nor that of the appellees, is tenable. The judgment was reversed, with authority to the trial court to take such further action, in the interests of justice, as the law would sanction and a sound discretion dictate or approve. Within the bounds of judicial discretion the CQurt might grant, or refuse, leave to amend the plead
Plaintiffs complain of the order sustaining the motion addressed to their amended and supplemental petition. The order was interlocutory, and the point made, that in the absence of an exception it cannot be reviewed, must be sustained. (Farmers Loan & Trust Co. v. Bankers & Merchants Telegraph Co., 109 N. Y. 342; Spears v. Mayor of New York, 72 N. Y. 442; Mechanics & Traders Ins. Co. v. Gerson, 38 La. Ann. 349.) In order to bring up for review any question touching the action of the trial court with reference to amendments, the record must show that an exception was taken .to the order complained of. (Healy v. Aultman, 6 Neb. 349; State v. Bartley, 56 Neb. 810; 1 Ency. Pl. & Pr. 534.)
There is another reason why the merits of plaintiffs’ complaint cannot be considered. The order in question is not appealable. It was, in legal effect, a refusal to permit, as against the Horbachs and Lantry, a reformation of the issues and a second trial upon new pleadings. The judgments, based upon the original pleadings and the evidence contained in the bill of exceptions, definitely settled the rights of the parties to this proceeding and, as to them, ended the litigation in the district court. They are appealable, but the orders preceding them are not. The correctness of these judgments is the only question properly before us for determination. Admitting, for the sake of argument only, that a trial on the reformed pleadings might have resulted in a conclusion favorable to plaintiffs and Blakely, and also assuming that there was prejudicial error in the rulings which prevented a reinforcement of the record by bringing in other material facts to influence the action of the court, still
Affirmed.