Sorensen v. Sorensen

Pound, C.

A general statement of the facts out of which this controversy arises may he found in an. opinion rendered in another branch of the same proceeding. Sorensen v. Sorensen, 56 Neb. 729. When the cause was here before, the question was, who was entitled to appointment as administrator of the estate? After that question had been determined and the claims of the alleged widow disposed of, the petitioners in the present case, who are brothers and children of a deceased brother and sister of the intestate, filed a petition in the county court praying for distribution of the estate to them as heirs and distributees under the statute. Alfred Hans Sorensen, the defendant in error, by his guardian, answered, admitting the relationship of the petitioners to the intestate as alleged, admitting certain other allegations as to the condition of the estate, the property for distribution and the propriety of a distribution thereof, and denying generally all the other allegations of the petition. He alleged further that he was the son, and as such the sole heir and next of kin of the intestate, and prayed that all the property be turned over to him. In due course this proceeding was taken to the district court on appeal, and by order of the latter court, apparently at the instance of defendant in error, was tried upon the pleadings below. A verdict was rendered finding that Ellen Sorensen, the alleged widow, was lawfully married to the intestate, and that said Alfred Hans Sorensen was born of such marriage. Thereupon a judgment was entered in his favor, which is now before us on petition in error.

Several difficult and interesting questions have been argued, which we need not examine at this time for the reason that we think the trial court erred in its ruling as tthe right to open and close. Prior to the trial, defendant, in error filed a paper in which he admitted “that the brothers, nephews and nieces named in the petition for distribution in this proceeding are the heirs at law and next of kin of the said Hans O. Sorensen, deceased, anentitled to his estate, unless it be proved that said Hans C. Sorensen intermarried with one Ellen Ferguson and the cross-petitioner, Alfred Hans Sorensen, is the issue of said marriage and the legitimate son of the said Hans C. Sorensen, as alleged in the cross-petition of said Alfred Hans Sorensen.” Upon this, over the objection and exception of plaintiffs in error, the right to open and close was granted to their adversary. The ruling is defended on two grounds: That the petition does not allege sufficiently there were no persons entitled to take as distributees in preference to petitioners, and hence that the general denial in the answer does not put such question in issue; and, second, that under the written admission and an oral admission in the same terms at the trial, the defendant in error had the burden of proof and was entitled to the right accorded him.

The first point, if tenable, goes much deeper than the mere question of burden of proof and right to open and close. If the petition does not set forth sufficiently that there are no persons of the several classes which, under the provisions of the statute, take precedence of and exclude brothers and sisters and the issue of brothers and sisters, as will be seen presently, no cause of action is stated. Hence, in substance, the defendant in error is contending that the petition does not state a cause of action. If a cause of action is stated, as against objection made for the first time after trial’ of the cause, and ,if the parties treated the petition as sufficient to raise an issue, and actually tried that issue, we do not see how it can be asserted that there was no issue to be joined by defendant’s general denial, and that an essential element of the plaintiff’s case, not expressly admitted, without which there could be no recovery, was not put in issue by such denial. Had objection been made either in the county court or the district court, a more specific statement would have been imperative. Without' an allegation in the form of a statement of fact that there were no persons entitled to take under the statute in preference to the plaintiffs, the petition must have fallen before a timely objection. But no such objection was ever made. Consequently, we are compelled to look at the pleading from a different standpoint. Where issue is joined and a trial had without objection to the sufficiency of the petition, that pleading will be construed liberally, and if the essential elements of plaintiff’s case may be implied from its terms by reasonable intendment, they will be regarded as alleged sufficiently. Latenser v. Misner, 56 Neb. 340; Omaha Nat. Bank v. Kiper, 60 Neb. 33; Fire Ass’n of Philadelphia v. Ruby, 60 Neb. 216; National Fire Ins. Co. v. Eastern Building & Loan Ass’n, 63 Neb. 698; Punteney Mitchell Mfg. Co. v. Northwall Co., 66 Neb. 5. In the three cases last cited, this rule was applied to oral objections to petitions at the trial. Where the petition is not attacked by motion or demurrer, but its sufficiency is challenged after issue joined and at the trial, it has been laid down repeatedly that the pleading will be “upheld if possible.” Fire Ass’n of Philadelphia v. Ruby, supra; Norfolk Beet Sugar Co. v. Hight, 56 Neb. 162. In such case, it will be construed “in the light of the entire record.” National Fire Ins. Co. v. Eastern Building & Loan Ass’n, supra. The language of this court in another connection, that “a pleading may be said to allege what can by reasonable and fair intendment be implied from its statements,” applies here with peculiar force. Dailey v. Burlington & M. R. R. Co., 58 Neb. 396. Here the defendant treated the petition as sufficient. Hé answered it and went to trial without objecting to it, and he filed an “admission” in which he clearly assumed that plaintiffs had alleged the essential fact that there were no persons nearer in degree to the intestate who might claim under the statute. Hence we must take that fact to be sufficiently set forth.

The right to open and close is governed by section 283, Code of Civil Procedure. That section, which in this respect is merely declaratory of the general rule, has been construed repeatedly, and we think the fair import of its language and of the decisions by which it is interpreted may be stated thus: If any of the material facts of a petition are not admitted, but are denied, either directly or argumentatively, the right to open and close is in the plaintiff. Rolfe v. Pilloud, 16 Neb. 21; Mizer v. Bristol, 30 Neb. 138; Seebrock v. Fedawa, 30 Neb. 424; Suiter v. Park Nat. Bank of Chicago, 35 Neb. 372; Welsh v. Burr, 56 Neb. 361; Summers v. Simms, 58 Neb. 579. It is obvious that if any material fact is put in issue, the plaintiff must fail, to that extent at least, unless he introduces evidence in support thereof; and this is true even where the sole issue, so far as the petition is concerned, is the amount of damages. Summers v. Simms, supra. Although the particular allegations of the petition put in issue are indefinite and ill stated, if they are enough lo sustain a judgment, the right to open and close is in the plaintiff. Hewit v. Bank of Indian Territory, 64 Neb. 463. We think it very clear that a party can not acquire the right to open and close by pleading a denial in affirmative form. If his denial is sufficient to prevent his adversary from obtaining judgment on the pleadings, it is sufficient to put the burden of proof upon the latter. Whether ,a defense is a denial or constitutes new matter and is affirmative, depends, under the Code of Civil Procedure, upon its substance, not upon the form in which it is stated. Matter which is in fact and substance a denial, can not be made into matter in avoidance, for the purpose of obtaining the right to open and close, by the form in which it is stated by an astute pleader. Myers v. Binkley, 26 Ind. App. 208, 59 N. E. 388; 1 Thompson, Trials, sec. 256, and cases cited. In the same way, a plaintiff can not obtain the right to open and close by anticipating defenses and alleging what he is not obliged to prove. Bush v. Wathen, 104 Ky. 548, 47 S. W. 599. Nor can a party acquire a right to open and close, to which he is not entitled on his pleadings, by filing an “admission” in which he assumes the burden of proving affirmatively matter amounting to a denial of plaintiff’s case, and admits that plaintiff may recover unless an essential averment of his petition is negatived in a particular way. If the “admission” were contained in the pleadings of defendant in error in the case at bar, it would amount, so far as it had any force at all, to a denial, and would put upon the plaintiffs the burden of showing,, prima facie, that there were none in nearer degree to the intestata Further than that, it could not operate. The right to open and close depends upon the issues to be tried. A party can not join issue upon a material allegation of his adversary, and at the same time assume the burden of proving his denial. 1 Thompson, Trials, sec. 256. If he could do so, there is no reason why the other party should be denied this privilege; and in all cases where the right to open and close was thought advantageous, the court would be besieged with offers of this sort from the re- " spective parties. It has been held that in order to get the right to open and close, a defendant must admit the case made by plaintiffs’ petition in Ms pleadings. Heilman v. Shanklin, 60 Ind. 424; Woodruff v. Hensley, 26 Ind. App. 592, 60 N. E. 312; Borough v. Johnson, 108 Ga. 812, 34 S. E. 168; Buzzell v. Snell, 25 N. H. 474, 479. This has been doubted, however (1 Thompson, Trials, sec. 255), and we need not pass upon the question. For, unless the whole of plaintiff’s cause of action is admitted, he has something to prove under any theory. A denial, coupled with an offer to assume the burden of proving it, is something unknown to the law.

Applying these principles to the case at bar, we think the petitioners should have been accorded the right to open and close. Brothers, and children of deceased brothers and sisters, of an intestate, are not prima fade heirs and distributees, and must allege and prove that there are no persons of the several classes which would take before them and exclude them, under sections 30 and 176, chapter 23, Compiled Statutes (Annotated Statutes, 4930, 5041) before they can obtain an order for distribution of the estate. Emerson v. White, 29 N. H. 482; Stinchfield v. Emerson, 52 Me. 465; Gardner v. Kelso, 80 Ala. 497, 2 So. 680; Henriques v. Yale University, 28 App. Div. (N. Y.) 354, 51 N. Y. Supp. 284, 289. In consequence, an admission that the petitioners for distribution are brothers and nephews and nieces of the intestate, and are heirs and distributees unless a person named is proved to be the son of the intestate, in connection- with a general denial and an allegation that such person is the son óf the intestate and is sole heir and distributee, does not relieve the petitioners of the necessity of making á prima facie case.. If no evidence were introduced by either party they would fail, notwithstanding the defendant in error’s gratuitous assumption of the burden of proof. A close analogy is furnished by an English case, where the question was as to the legitimacy of a person who, if legitimate, was clearly the heir at law. He offered to admit that plaintiff’s lessor was the heir at law, unless he, the person whose relation to the deceased was in dispute, was the heir. The court held he could not obtain the right to open in this way. Doe v. Bray, Moo. & Mal. (Eng.) 166. Such a case is very different from one where the petitioners’ prima facie right to take as distributees is admitted, but an affirmative defense, as, for instance, an advancement under sections 34-39, chapter 23, Compiled Statutes (Annotated Statutes, 4934-4939), is interposed. The fact that there was a person nearer in degree to- the intestate, who would exclude petitioners under the statute, operated to negative their case, not to avoid it.

1. Proceedings for Distribution of Estate: Right to Open and Close. In a proceeding for tbe distribution of tbe estate of an intestate, in a contest between parties, each claiming as next of kin and beir at law, to tbe exclusion of tbe other and all other persons, tbe right to open and close rests in tbe discretion of tbe court, disaffirming tbe rule announced on former bearing, ante, p. 483. 2. Judgment in Rem: How Far Conclusive. A judgment in rem is binding and conclusive on all persons as to every matter néeessarily involved in an adjudication upon tbe status of tbe person or thing which is tbe subject matter of tbe proceeding; but as to matters involved in collateral litigation in such proceedings, between particular parties, and not necessarily involved in such adjudication, it is binding only upon those whó actually litigated such matters, and their privies. 3. Privity. Privity, so far as concerns the effect of a judgment on property rights, does not arise from mere relationship by blood or affinity, nor because two parties may have an interest in tbe same subject matter of litigation; it implies a relationship by-succession or representation, between a party to tbe first action and a party to a subsequent action, in respect to a matter adjudicated in the first.

We therefore recommend that the judgment be reversed and the cause remanded for a new trial.

Barnes and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is remanded for a new trial.

Reversed and remanded,