Moore v. McCollum

Decided February 5, 1895

Nebraska Supreme Court · decided 1895-02-05

<p>1. A motion to dismiss a cause out of this court for wapt of prosecution, in order to be of any avail, must be presented before the-final submission of the case upon the merits.</p> <p>2. Where no brief has been filed by either party, and the causéis submitted without oral argument, the judgment, if it conforms to the pleadings and evidence, will be affirmed. (Pheniar Jns. Co. ii. Beams, 37 Neb., 423; Brown v. Dunn, 38 Neb., 52;. Langdon v. Campbell, 43 Neb., 67.)</p>

Decided 1895-02-05

Norval, C. J.

¶1At the present term a motion was submitted by the defendants in error to dismiss the petition in error for want of prosecution. This cause was submitted for decision upon its merits at the September term, 1893, without briefs- or oral argument. The motion to dismiss, therefore, comes-too late. Such a motion, to be of any avail, must be presented before the final submission of the cause upon the merits.

¶2No brief having been filed by either party, and the judgment conforming to the pleadings and evidence, it is accordingly affirmed. (Phenix Ins. Co. v. Reams, 37 Neb., 423; Brown v. Dunn, 38 Neb., 52; Damon v. City of Omaha, 38 Neb., 583; Langdon v. Campbell, 43 Neb., 67.)

¶3Judgment affirmed.