Younkin v. Younkin

44 Neb. 729 | Neb. | 1895

Irvine, C.

This action was originally commenced by Eva M. Gillaspie against Howard Younkin, her son, alleging that during her son’s minority she had purchased a farm in Saline county and procured the title to be taken in the name of the defendant for the sole purpose of preventing her second husband, Gillaspie, from whom she was then separated, from asserting any interest therein; that she had made improvements upon the farm and placed certain personal property thereon; that she removed with her family, including the defendant, to said farm; that the defendant refused to convey the farm to her or to account to her for the personal property thereon; that she had been compelled to remove therefrom, leaving him in possession. She offered to pay the reasonable value of his services upon the farm since his majority, and prayed for a conveyance and an accounting. To this petition an answer was filed placing the material allegations in issue. There was a trial before Morris, J., resulting in a decree finding substantially for the plaintiff, decreeing a conveyance to her, and referring the case for an accounting between the parties. There has been no appeal from this decree, but subsequently thereto the plaintiff executed a lease of the farm to the defendant under an agreement that if on the accounting anything should be found due from the plaintiff to the defendant, then the rent should be applied in payment thereof. The order of reference was afterwards set aside and an accounting had before Hastings, J., who found due the defendant on account of services and for advancements made by him $1,261.60; that there was left in the hands of the defendant property of the plaintiff to the value of $969.50; that there was due for rent $320, leaving a balance in favor of the plaintiff of $27.90, for which judgment was entered. Pending these supplemental proceedings the plaintiff had died and the action was revived in the name of the administrator, who appeals from this decree.

It is claimed by the appellant that the court restricted the accounting to too narrow a field and should have admitted certain evidence which was rejected. One question asked the appellant was as follows: “Please tell the court the items which you have paid out for and on behalf of the place, either personal property or the real estate, and then credits that you give from sales which have come from the same.” An objection to this question was sustained. A sufficient reason for doing so is found in the fact that it called for a statement of moneys paid for the land itself. This issue had already been determined adversely to appellant by the interlocutory decree, and was not open in the accounting to reinvestigation. Again, certain questions were objected to, seeking to elicit proof that two out of four horses placed on the farm when it was first bought belonged to appellant, he having acquired them from his father’s estate. The petition distinctly alleged that these four horses belonged to the plaintiff. The answer, among other things, alleged a subsequent agreement whereby, together with other promises, the plaintiff was to give defendant the stock upon the farm. The decree found against the defendanton this issue. The decree also finds “that the farm had upon it stock and farming machinery, the character and value of which I do not find.” There is no distinct finding that these horses were- the property of plaintiff, but if that question were put in issue at all, which is doubtful under the allegations we have referred to, we think that the first decree, reserving the case, as it does, solely for an accounting as to the appellant’s services and impliedly of the value of the stock and farming machinery, determined the issue in favor of plaintiff. Where a decree has been rendered determining certain issues in a case, and reserving the case for further proceedings to carry out the first decree, as for an accounting, the supplemental proceedings cannot be made the means of relitigating any issues determined by the first decree. (Santa Maria, 10 Wheat. [U. S.], 442; Sibbald v. United States, 12 Pet. [U. S.], 491.) All the other questions argued are purely questions of fact. The evidence is conflicting and might sustain a finding either more or less favorable to the appellant than that contained in the decree. That finding, therefore, cannot be disturbed.

Judgment affirmed.