Unzicker v. Unzicker , 103 Neb. 314 ( 1919 )

Rose, J.

Plaintiff brought this suit to recover from defendants the rental value , of a half-section of land in Deuel county for the years 1913, 1914, 1915 and 1916, the aggregate of the rentals demanded being $2,400. Under instructions to which no exceptions were taken, the jury were permitted to find in favor of plaintiff, if he proved by a preponderance of the evidence that defendants, during any of the years mentioned, used and occupied the land with his knowledge and consent, and that the use and occupancy were of some value..

Defendants denied the existence of the relation of landlord and tenant, and pleaded ,in defense other matters eliminated by instructions to which there were no exceptions. The jury rendered a verdict in favor of plaintiff for $601.50, and from a judgment for that sum defendants have appealed.

The errors assigned in the brief of defendants are: The findings and judgment are-not sustained by sufficient evidence, and are contrary to law, and the court erred in admitting testimony offered by plaintiff. These assignments are also found in the motion for a new trial.

Defendants concede that the evidence is sufficient to sustain a verdict in favor of plaintiff for $234. Tlie question of excess in the amount of the verdict is argued by defendants, but it was not specifically called to the attention of the trial court by the motion for a new trial, and was not raised indirectly by the assignment that the verdict is not sustained by sufficient evidence. Hammond v. Edwards, 56 Neb. 631. The judgment, therefore, is not reversible on this ground.

It is contended that a judicial record showing plaintiff had collected from defendants rentals for the year 1912 for the land in controversy was erroneously admitted in evidence. The point does not seem to- he well taken. The proofs show that defendants remained in possession of the land after 1912, while plaintiff was the owner. The relation of landlord and tenant during the year 1913 was a controverted issue. Evidence that plaintiff had collected from defendants rentals for the same land for the preceding year tended to prove the existence of a tenancy, which, under the circumstances, carried with it the presumption of continuance. Montgomery v. Willis, 45 Neb. 434; Lazarus v. Phelps, 156 U. S. 202. It follows that the’re was no error in admitting the judicial record in evidence.

It is also argued by defendants that a witness called by plaintiff was permitted to testify to rental values without having shown the necessary qualifications. While some of his answers indicate a lack of knowledge on this subject, his testimony as a whole seems to justify the rulings of the trial court.

There are also objections to other items of testimony, but no prejudicial error has been found.

AFFIRMED.

CorNish, J., not sitting.®