Изображения страниц
PDF
EPUB

from loss by reason of excavations in streets, to recover the amount of a judgment recov ered against the city by personal injuries sustained by driving into such an excavation, setting out the bond and making the sureties parties defendant, states but a single cause of action and not demurrable for improper joinder of causes of action. Omaha Gas Co. v. City of South Omaha, 71 Neb. 115 (98 N. W. 437).

43. (1904.) A single transaction, causing a single item of damage, constitutes a single cause of action. Otoe County v. Dorman, 71 Neb. 408 (98 N. W. 1064).

Joinder of causes of action.

44. (1887.) A cause of action against a county treasurer for his act in seizing and selling plaintiff's house and improvements for taxes may be joined with one based on the act of his deputy in seizing and selling grain of plaintiff for taxes. Freeman υ. Webb, 21 Neb. 160 (31 N. W. 656).

45. (1892.) An action of ejectment, under our practice, may be joined with one to recover rents and profits. Fletcher v. Brown, 35 Neb. 660 (53 N. W. 577).

46. (1895.) Causes of action for malicious prosecution, for damage to plaintiff by arresting occupants of her place of business, and for slander may be properly joined. Dinges v. Riggs, 43 Neb. 710 (62 N. W. 74).

47. (1901.) Proceedings to set aside a former decree relating to the same matter and a suit to foreclose the mortgage involved, may be prosecuted in one action. Cushing v. Schoenemann, 1 Unof. 482 (96 N. W. 346).

48. (1904.) An action to determine property rights not growing out of the marriage relation can not be joined with an action for divorce, and where such causes of action are joined in a petition a demurrer thereto for misjoinder of causes of action should be sustained. Reed v. Reed, 70 Neb. 775 (98 N. W. 76).

49. (1904.) Where a petition for a divorce contains a second cause of action for the settlement and adjudication of property rights, not growing out of the marriage relation, a demurrer thereto for misjoiner of causes of action should be sustained. Reed v. Reed, 70 Neb. 779 (98 N. W. 73).

Contract and tort.

50. (1901.) The joinder of a cause of action in a contract with a cause of action in tort is a misjoinder of causes of action.

Commercial Union Assurance Co. v. Shoemaker, 63 Neb. 173 (88 N. W. 156).

Legal and equitable.

51. (1877.) Legal and equitable causes of action may be properly joined whenever they fall within section 87 of the civil code. Turner v. Althaus, 6 Neb. 54.

52.

(1877.) Legal and equitable causes of action may be properly joined whenever they fall within section 87 of the code of civil procedure. This section of the statute is not in conflict with section 9, article VI of the constitution, by which district courts are given "both chancery and common law jurisdiction." Turner v. Althaus, 6 Neb. 54.

53. (1880.) Under certain statutory restrictions legal and equitable causes of action may be joined in the same suit, but they must be existing, not merely prospective, causes of action. Weinland v. Cochran, 9 Neb. 480 (4 N. W. 67).

54. (1888.) Where a cause of action in equity is set forth in a petition-as to remove a cloud from the title of real estateand in the second count facts to show the plaintiff's right to an action of ejectment are pleaded, both being for the same tract of land, a demurrer on the ground of misjoinder will not lie. Keens v. Gaslin, 24 Neb. 310 (38 N. W. 797).

Parties and interests involved.

55. (1899.) Two causes of action on two separate contracts cannot be united in one petition unless each cause of action affects all parties made defendants. Barry V. Wachosky, 57 Neb. 534 (77 N. W. 1080).

56. (1902.) The mere fact that two distinct and several contracts with two different persons are for the performance of the same service, will not authorize causes of action against such persons upon their several contracts to be joined in one action. Stewart v. Rosengren, 66 Neb. 445 (92 N. W. 586).

[blocks in formation]

64.

Strawn v. First was properly sustained. Nat. Bank of Humboldt, 77 Neb. 414 (109 N. W. 384).

Manner of raising objections.

58. (1898.) A demurrer does not reach the commingling of two causes of action in a single count, where they are of such character that they may be joined. Ponca Mill Co. v. Mikesell, 55 Neb. 98 (75 N. W. 46).

59. (1902.) An answer setting up facts which go to show a misjoinder of causes of action, but are also material to the merits, no specific objection being made to the misjoinder, will not be taken to raise such defeat. Leavitt v. Mercer Co., 64 Neb. 31 (89 N. W. 426).

60. (1904.) After a demurrer for a misjoinder of causes of action has been sustained, and the plaintiff files a new petition, and again inserts therein allegations relating to the second cause of action, a motion to strike such allegations should be sustained, and the objectionable matter thus eliminated from the pleading. Reed v. Reed, 70 Neb. 779 (98 N. W. 73).

Election or separation.

61. (1890.) When there is a misjoinder of causes of action, the plaintiff should be required either to elect upon which cause of action he will proceed, or file a separate petition for each cause of action. When such petitions are filed, an action should be docketed for each petition. Alexander v. Thacher, 30 Neb. 614 (46 N. W. 825).

61a. (1895.) Error cannot be predicated on the refusal of a district court to compel the plaintiff to elect on which one of two causes of action set out in his petition he will proceed to trial when the two causes of action are identical. The remedy of a defendant in such a case is to move the court to strike out one of the causes of action as surplusage. Pollock v. Whipple, 45 Neb. 844 (64 N. W. 210).

62. (1908.) In case of misjoinder of two causes of action in the same petition, the plaintiff may dismiss one of such causes of action and proceed to trial upon the other. McCague Savings Bank v. Croft, 80 Neb. 702 (115 N. W. 315).

-Waiver of objection.

63. (1877.) If there be a misjoinder of distinct causes of action, if the defendant do not object, it is not within the province of the court to do so. Turner v. Althaus, 6 Neb. 54.

(1893.) Where there is a misjoinder

of causes of action which plainly appears on the face of the petition, the adverse party should demur for that cause. If he fails to do so he will waive the defect. Porter v. Sherman County Banking Co., 36 Neb. 271 (54 N. W. 424).

65. (1902.) An objection of misjoinder of causes of action and of parties defendant, must be taken before going to trial or the objection will be deemed waived. Curran v. Hageman, 3 Unof. 779 (92 N. W. 1003). Compelling joinder of causes.

66. (1879.) There is no rule that requires a party to join in one suit several and distinct causes of action, although he may, under certain circumstances, be required to consolidate them. Beck v. Devereaux, 9 Neb. 109 (2 N. W. 365).

Splitting causes of action.

67. (1879.) The rule is well settled that an indivisible demand cannot, at the will of the plaintiff, be separated, and collected Ly several actions. Beck v. Devereaux, 9 Neb. 190 (2 N. W. 365).

68. (1900.) A plaintiff cannot divide his demand and prosecute by different actions. But this rule does not require him to consolidate independent actions in a single suit. Richardson v. Opelt, 60 Neb. 180 (82 N. W. 377).

IV. COMMENCEMENT.

See, also. Limitation of Actions, §§ 101107.

When action of attachment is commenced, see Attachment, §§ 243-245.

What constitutes commencement.

69. (1891.) An action is begun by the filing of a petition and issuing summons. Bauer v. Deane, 33 Neb. 487 (50 N. W. 431); Coffman v. Brandhoeffer, 33 Neb. 279 (50 N. W. 6).

70. (1891.) An action is commenced so as to authorize issue of attachment, when the petition is filed in proper court and summons issued with bona fide intent to serve it. Coffman v. Brandhoeffer, 33 Neb. 279 (50 N. W. 6).

[blocks in formation]

suance of a summons, unless such summons

is served on the defendant. Co. v. Atherton, 67 Neb. 305

Reliance Trust (96 N. W. 218).

before the action was begun. Bank of Miller v. Richmon, 64 Neb. 111 (89 N. W. 627).

73. (1907.) A cause is not pending until pleaded. Hulen v. Chilcoat, 79 Neb. 595 (113 N. W. 122).

Accrual of cause of action.

74. (1879.) It is only in the exceptional cases of fraud on the part of the debtor, mentioned in section 237 of the code of civil procedure, that an action can be properly commenced on a claim before it is due. Green v. Raymond, 9 Neb. 295 (2 N. W. 881). 75. (1902.) When an action is brought on the same day that the cause of action arose, it is proper to show by competent evidence that the cause of action was complete

ACT OF GOD.

As relieving common carrier from liability for injury to live stock, see Carriers, §§ 139-144.

As defense for delay in transportation of goods, see Carriers, §§ 82, 83.

ADEQUATE REMEDY AT LAW. As bar to relief by injunction, see Injunction, §§ 5-19.

Effect on relief in equity, see Equity, §§ 39-46.

As relief against judgment, see Judg ments, X, A.

ADJOINING LANDOWNERS.

CROSS REFERENCES.

See also, Boundaries; Fences; Party Walls. Boundary rights, see Boundaries. Establishment and effect of boundary line, see Boundaries, §§ 15-23.

Damage to, as element of compensation for taking property for public purposes, see Eminent Domain, $$ 75-78.

Damages recoverable for constructing public improvement, see Eminent Domain, §§ 86-126.

Notice to, of street improvement, see Municipal Corporations, §§ 353-357.

Rights and liabilities as to sidewalks, see Municipal Corporations, §§ 660-665.

Right and liability as to obstructions in streets, see Municipal Corporations, §§ 725729, 731, 739, 740.

Liability for fall of building, see Negligence, §§ 26, 27.

Measure of damage to, for construction of railroad, see Railroads, §§ 131-146.

Damages from overflow from construction of railroad, see Railroads, §§ 73-84.

Duty of railroad to build fence, see Railroads, $$ 186-199.

Enjoining leaving gate on railroad fence open, see Railroads, § 101.

Liability of railroad for injury to animals, see Railroads, VIII, G.

Right to irrigation, see Water and Watercourses, VIII, B.

Rights and duties as to waters and streams, see Water and Watercourses, §§ 174, 146-152.

1. (1895.) A proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor. Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526 (62 N. W. 859).

2. (1896.) The owner of real property in exercising his own tastes and inclinations as to the character of a building he will erect thereon, has no right to build and maintain a structure which, by reason of defects or inherent weakness either in material or construction, is liable to fall and do injury to an adjoining owner or the public. Kitchen v. Carter, 47 Neb. 776 (66 N. W. 855).

3. (1896.) If a building falls because of defects in material and workmanship reasonably within the knowledge of the owner thereof, and thereby inflicts injury upon adjoining owners or their property or any person lawfully in its vicinity, the owner is liable for the damages ensuing therefrom. Kitchen v. Carter, 47 Neb. 776 (66 N. W. 855).

4. (1896.) Adjoining lot owners may, by grant, impose mutual conditions upon the land owned by each, the mutuality of the covenants being a sufficient consideration for the respective grants; and such mutual covenants should be construed as the grant of reciprocal easements which may be enforced in equity when the remedy at law is insufficient. Barr v. Lamaster, 48 Neb. 114 (66 N. W. 1110; 32 L. R. A. 451).

5. (1905.) One who consents to the uncovering of a portion of the roof upon a

[blocks in formation]

Of common law, see Common Law, §§ 1-4. Adoption of illegitimate child, see Bastards. $$ 9, 10.

Children, in general, see Parent and Child. Of constitution and amendments, see Constitutional Law. §§ 1-20.

Oral agreement to bequeath to adopted child, see Wills, §§ 24, 34-37.

Statutory provisions.

1. (1902.) The statute prescribing the procedure in the adoption of children should be liberally construed, to the end that the proceedings had thereunder, and the decree of adoption made pursuant thereto, may be held valid; substantial compliance with the requirements of the statute being sufficient to sustain the validity of the decree of the probate court. Ferguson v. Herr, 64 Neb. 659 (94 N. W. 542).

Right to adopt child.

2. (1907.) Our statute of adoption (code, sec. 797) is based primarily on the consent of the parents, if living and accessible, and an adoption without such consent must come clearly within the exceptions contained in the statute. Tiffany v. Wright, 79 Neb. 10 (112 N. W. 311).

3. (1907.) Το warrant an adoption under the sixth subdivision of section 79 of the code against the objection of a living

parent of the child, it must be made clearly to appear that such parent had abandoned the child for a period of at least six months, and that the party consenting to such adoption has had the lawful custody during such period to the exclusion of all other control. Tiffany v. Wright, 79 Neb. 10 (112 N. W. 311).

Effect of decree of adoption.

4. (1902.) In rendering the decree provided for in chapter 2, title 25, Revised Statutes, 1866, governing adoption of children, the probate judge acts judicially, and such decree has all the force and effect of a judgment, being subject to collateral attack only for want of jurisdiction. Ferguson v. Herr, 64 Neb. 659 (94 N. W. 542).

5. (1902.) The decree rendered by the probate court under the provisions of chapter 2, title 25, Revised Statutes, 1866, fixes the status of the child and its adoptive parents; and when such decree, by failure to prosecute error therefrom, is allowed to be come final, it will, if in substantial conformity with the provisions and requirements of the statute, be conclusive upon all persons interested in the proceedings. Ferguson v. Herr, 64 Neb. 659 (94 N. W. 542).

Modifying or vacating decree.

6. (1902.) Under the provisions of sec tion 580, chapter 1, title 16, Revised Stat

tutes, 1866, a decree of adoption rendered by the probate court under chapter 2, title 25, Revised Statutes, 1866, could be reversed, vacated or modified by the district court at the instance of anyone having an appealable interest therein. Ferguson v. Herr, 64 Neb. 659 (94 N. W. 542).

Inheritance by adopted child.

7. (1902.) The decree of a probate court rendered under chapter 2, title 25, Revised Statutes, 1866, conferring upon a child full rights of inheritance from his adoptive parents, will not, in a collateral proceedings, many years after its rendition, and after the death of the adoptive parents, be held void for want of jurisdiction on the ground that the statement of the adoptive parents filed in the adoption proceedings fails in specific language to bestow upon the adopted child equal rights, privileges and immunities of children born in lawful wedlock, where a fair and reasonable interpretation of such statement is consistent with the intention so to bestow such rights, and it is manifest that the probate judge so understood and construed the statement of the adoptive parents, and the parents acquiesced in the decree throughout their lives. Ferguson v. Herr, 64 Neb. 659 (94 N. W. 542).

8. (1902.) A child adopted under General Statutes 1873, chapter 57, title 25, section 797, would not inherit from the adopting parents in the absence of an affirmative statement to that effect in the statement made and filed by them with the county judge, or the use of language which clearly indicated the intention of the foster parents that the child should inherit. Ferguson v. Herr, 64 Neb. 649 (90 N. W. 625). [Modified on rehearing, 64 Neb. 659.]

9. (1898.) Under articles of adoption providing that if the infant should remain with her foster parents until her majority she should receive $500, and bestowing on

her "equal rights and privileges of children born in lawful wedlock," held that on the death of the foster parents intestate, before the child reached her majority, she was entitled to inherit as if their own, the first provision not being exclusive. Martin v. Long, 53 Neb. 694 (74 N. W. 43).

Enforcement of contract of adoption.

10. (1894.) An oral agreement of persons adopting a child that any property they might own at their death should be given to the child, it not being stated whether by deed or will, possesses the elements of certainty sufficient to be specifically enforced, where the proof is clear and satisfactory. Kofka v. Rosicky, 41 Neb. 328 (59 N. W. 788; 43 Am. St. Rep. 685; 25 L. R. A. 207).

11. (1894.) An adopted child who has performed her part of the contract may enforce by specific performance her rights under an oral agreement of her adopted parents to will her their property. Kofka v. Rosicky, 41 Neb. 328 (59 N. W. 788; 43 Am. St. Rep. 685; 25 L. R. A, 207).

12. (1906.) Specific performance of a contract of adoption will be decreed. Pemberton v. Heirs of Pemberton, 76 Neb. 669 (107 N. W. 996).

13. (1906.) A written contract of adop tion which contains a condition binding the foster parents to make the child "an equal heir to his part of our estate the same as one of our children" may upon a proper showing be specifically enforced against the estate of the deceased foster parent, who has died intestate. Pemberton v. Heirs of Pemberton, 76 Neb. 669 (107 N. W. 996).

14. (1906.) A contract in writing for the adoption of a child, although ineffective as a legal, statutory adoption, may upon a proper showing be enforced in equity. Pemberton v. Heirs of Pemberton, 76 Neb. 669 (107 N. W. 996).

« ПредыдущаяПродолжить »