#### Alvin H. Armstrong et al. v. Simon D. Mayer et al.

Filed May 20, 1903.

No. 12,820.

1. Cross-Petition. A defendant in an action is not restricted to the counter-claim provided for in sections 100 and 101 of the code, , but, in a proper case, may seek affirmative relief, either against the plaintiff or against codefe'ndants, by cross-petition.

2. -. In such case, the cross-petition gives rise to a cross-suit, auxiliary to and dependent upon the original suit, but for many purposes distinct.

3. Cross-Suit: Basis oe Right. The basis of the right to bring such a cross-suit is to be found in sections 1 and 429 of the code, and in the consideration that in cases where the code is silent, remedies furnished by the old common law or equity practice, not *188inconsistent with its provisions, may be resorted to in order to prevent failure of justice.

4. -: When Maintainable, A cross-petition is maintainable either to aid in the defense of the original suit, where affirmative equitable relief is required to make such defense effective, or to obtain a complete adjudication of the controversies between the original complainant and the cross-complainant over the subject matter of the original suit. '

5. Cross-Bill: Chancery Practice. Under the chancery practice, where the purpose of a cross-bill is defensive merely, it need not be based on equitable grounds nor seek equitable relief; but when its purpose is more than defensive, and it seeks relief affirmatively, its scope must be limited to matters which are cognizable in a court of equity, if not to matters cognizable upon equitable grounds.

6. ■-: -. It is also required under the chancery practice, that the cross-suit be germane to the original suit. The new issues which a defendant may introduce by cross-bill are limited to such as it is necessary for the court to have before it in deciding the questions raised in the original suit in order to do complete justice to all parties with respect to the cause of action on which the plaintiff bases his claim for relief.

7. Chancery Practice Enlarged by Code. It seems that the rules ot chancery practice are so far enlarged by the code that, although a cross-petition is more than merely defensive and seeks affirmative relief beyond the purposes of defense, such relief need not be equitable, nor need the cross-petition be based on equitable grounds.

8. Cross-Petition: Scope. But the matters set up in the cross-petition must be germane to the original suit. The cross-petition is not maintainable for purposes of affirmative relief as a cross-suit beyond the requirements of a complete adjudication upon the subject mater of the original suit.

9. Cross-Petition Not Maintainable. Pending proceedings to obtain possession of defendant’s building, then occupied by plaintiffs, plaintiffs sued to enjoin defendants from procuring or executing a writ of restitution until they could obtain review upon error of a judgment in forcible detention, and to enjoin interference with their possession or prosecution of further proceedings until the pending cause was determined. After judgment on the petition in error adverse to plaintiffs, but before hearing of the injunction suit, defendants filed a cross-petition therein, claiming damages for abuse of process in the taking of unfounded and vexatious appeals and proceedings in error in state and federal courts, for attorneys’ fees an,d expenses therein, and in securing vacation of a restraining order in said injunction suit, for in*189juries to tbe building while occupied by the plaintiffs, and for loss of the use of an adjacent building rented to be used in connection with the one in controversy. *Held,*that such cross-petition was not maintainable.

10. Supersedeas Bond: Effect. The giving of a supersedeas bond for the purpose of an appeal, under section 677 of the code, will not prevent the district court from ruling upon a motion for a new trial, theretofore filed, in order to enable the party giving such bond to prosecute error, should he so elect.

Error to the district court for Lancaster county: Albert J. Cornish, District Judge.

*Reversed. Petition and cross-petition dismissed.*

*Lionel .(J.*Burr, *Rimer Ellsworth Spencer*and *Charles O. Whedon,*for plaintiffs in error.

*Walter J. Lamb*and *Robert Ryan, contra.*

Pound, C.

In July, 1899, Mayer Brothers, hereinafter called the defendants, became the owners of the building in controversy. At the time of the conveyance, said building was occupied by the Armstrong Clothing Company, a partnership, hereinafter referred to as the plaintiffs, under an assignment to one of the partners of a lease made to another firm by the former owners. The lease expired on February 1,1900. At its expiration, the plaintiffs refused to surrender possession, and proceedings in forcible detainer were brought by the defendants, which resulted in-a finding of guilty and a judgment accordingly. From this judgment, the plaintiffs took an appeal to the district court, and, upon judgment going against them in that court, prosecuted error in the supreme court. In the. latter tribunal, however, it was determined that there was no right of appeal from the justice’s to the district court in such cases, as the statutes then stood. *Armstrong v. Mayer,*60 Neb. 423. Thereupon the plaintiffs procured a bill of exceptions from the justice before whom the cause was first tried and filed it with a transcript and petition *190in error in the district court, in order to obtain a review of the judgment. While this petition in error was pending, they brought the present suit. The petition sets forth the proceedings in the justice’s court, the pendency of the petition in error, and the execution, filing and approval of a proper supersedeas bond. It alleges further that summons in justice’s court was served upon' Alvin H. Armstrong only, that the Armstrong Clothing Company was not a party, and that Samuel G. Armstrong was not served; that the plaintiffs and defendants are competitors in business, and that the defendants, for the purpose of injuring plaintiffs in their business and of preventing competition, were threatening and about to procure the issuance of a writ of restitution and cause such writ to be executed, and to forcibly and unlawfully put the plaintiffs out; that plaintiffs had a large stock of goods and merchandise in said building, of the value of $40,000 and upwards, that there was no other place available in the city of Lincoln for their business, and that irreparable injury would result-. They prayed for an injunction re- - straining the defendants from instituting any proceedings at law or in equity to obtain posession of the building, from interfering in any way with plaintiffs’ possession, and from taking or attempting to take possession of the building or any part of it. Before this cause could be heard, the petition in error was disposed of in the district court, adversely to the plaintiffs, and proceedings in error were taken in the supreme court to review the judgment . of affirmance. These proceedings also resulted adversely to the plaintiffs. A -writ of error was then obtained from the supreme court of the United States, but the cause was dismissed in that court for want of jurisdiction. *Armstrong v. Mayer,*183 U. S. 693.

After the district court had affirmed the judgment of the justice of the peace, but before the present suit.came on for hearing, the defendants, by leave of court, filed a cross-petition, in which they set up a conspiracy on the part of the plaintiffs to withhold possession of the prem*191ises wrongfully and to extort money from defendants as a condition of surrendering possession, and alleged that pursuant to such conspiracy the.plain tiffs had been guilty of wrongful and malicious abuse of process in the prosecution of unfounded and groundless appeals and proceedings in error, without any probable cause. They alleged further that by reason of plaintiffs’ wrongful withholding of possession and of such malicious abuse of process, they had been deprived of the use of a room adjacent to the building in controversy, which they had rented solely for use in connection therewith, and were not able to make use of otherwise; that the plaintiffs, on vacating the premises, wrongfully removed certain fixtures; that they committed certain acts of waste, and in particular failed to keep the roof in repair and to care properly for the heating plant. By a supplemental cross-petition, they set up certain further items of damage along the same lines. They prayed, among other things, for an accounting of their damages by reason of the several matters alleged, and for judgment against the plaintiffs -therefor., Upon trial of these issues, the court found for the defendants, dismissed the petition, found the sum of $12,192.76 due the defendants as damages upon their cross-petition, and rendered judgment against the plaintiffs accordingly.

Although the plaintiffs contend that the district court erred in dismissing their petition, we do not think there is any serious question that the decree is correct in this particular. As we see it, the sole question to be decided is whether the defendants were entitled to maintain their cross-petition or should have been remitted to a separate and independent action at law. The right of the defendants to litigate their several claims for damages in this cause was contested below by demurrers, by motions at the trial, by requests for trial by jury, by protestations in the answers and by motion for a new trial, and we are of opinion that it has been challenged sufficiently and is before us for determination.

- A considerable portion of the plaintiffs’ argument in *192this court is devoted to the proposition that the claims for damages set up by the defendants are not available as counter-claims under sections 100 and 101 of the code, and were not maintainable in the present cause for that reason. But we think a defendant in an action is not restricted to the counter-claim provided for in said sections, but, in a proper case, may seek affirmative relief, either against the plaintiff or against codefendants, by cross-petition. The code of this state contains no provisions with reference to cross-petitions. Nevertheless the practice of filing them has long obtained in this jurisdiction, and the right to bring a cross-suit auxiliary to and dependent upon the original suit, yet distinct for many purposes, has been recognized, at least, repeatedly. *Hapgood & Co. v. Ellis,*11 Neb., 131; *Carlow v. Aultman & Co.,*28 Neb. 672; *Arnold v. Badger Lumber Co.,*36 Neb. 841; *Patten v. Lane,*45 Neb. 333; *Havemeyer v. Paul,*45 Neb. 373. In several jurisdictions where there are no provisions on this subject in the codes, the equity practice which allows affirmative relief upon cross-bill has been adopted even to the extent of allowing new parties to be brought in. *Sims v. Burk,*109 Ind. 214; *Killian v. Andrews,*130 Ind. 579; *Hopkins v. Gilman,*47 Wis., 581. Even where the codes expressly provide for cross-petitions against codefendants, cross-petitions for relief against the plaintiff, not provided for in the codes, are recognized by the courts. *Radcliffe v. Scruggs,*46 Ark. 96; *Russell & Co. v. Lamb,*82 Ia. 558; *Cramer v. Clow,*81 Ia. 255. We think this long established and well recognized practice has a sufficient basis in sections 1 and 429 of the code, and in the consideration that in cases where the code is • silent, remedies furnished by the old common law or equity practice, not inconsistent with its provisions, may be resorted to in order to prevent failure of justice. Section 429 provides that the court, in rendering judgment, “may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be en*193titled.” In. construing a similar provision in the code of Indiana, the supreme court of that state said:

> “The statute expressly confers power' to determine the rights of the parties on each side of the case, as between themselves, when the justice of the case requires it. * * * The mode of procedure, however, is not pointed out by the statute, and, as the authority given is one previously possessed only by courts of chancery, we suppose the rules of pleading and practice of those courts, modified by the spirit of the code, must be resorted to.” *Fletcher v. Holmes,*25 Inch 458.

It may be admitted that the code of Indiana has a provision expressly authorizing such resort to the old practice. But, in the language of a well known text-writer, “this provision must be understood everywhere. No court would deny one’s right, or invent an original mode of proceeding for protecting it, because of an omission in the code, so long as the common law or equity practice furnished a remedy.” Bliss, Code Pleading (3d ed.), sec. 390. Hence, we are of opinion that a cross-petition is maintainable under the code, as a cross-bill would be in the chancery practice, either to aid in the defense of the original suit, where affirmative equitable relief is required to make such defense effective, or to obtain a complete adjudication of the controversies between the original complaint and the cross-complaint over the subject matter of the original suit. Otherwise, the doctrine that a court of equity, having obtained jurisdiction, will retain -the cause for complete determination, and the jurisdiction of equity to prevent a multiplicity of suits would be seriously impaired.

Assuming therefore, that the right of the defendants to maintain their cross-action is not concluded by the rules of the code as to counter-claims and the decisions of this court construing them, we must determine the cause in accordance with the rules of chancery practice governing cross-bills, so far as consistent with the provisions of the code, and subject to such modifications as the letter or *194spirit of the code may have introduced or may require. In that practice, it is well settled that the “issues raised by a cross-bill must be so closely connected with the cause of action in the original suit that the cross-suit is a mere auxiliary or dependency upon the original suit." *Springfield Milling Co. v. Barnard & Leas Mfg. Co.,*26 C. C. A. 389, 81 Fed. 261; *Cross v. De Valle,*1 Wall.(U. S.) 1; *Stuart v. Hayden,*18 C. C. A. 618, 72 Fed. 402; *Stonemetz Printers’ Machinery Co. v. Brown Folding Machine Co.,*46 Fed. 851; *Mathiason v. City of St. Louis,*156 Mo. 196; *May v. Armstrong,*3 J. J. Marsh. (Ky.) 260; *Krueger v. Ferry,*41 N. J. Eq. 432. Where the ultimate purpose of the cross-bill is defensive only, the cross-suit is so completely dependent upon the original suit, that the dismissal of the latter carries with it the former. *Cross v. De Valle, supra.*But in case the cross-bill goes further, and seeks affirmative relief with respect to the subject matter of the original bill for more than strictly defensive purposes, the cross-suit is for many purposes distinct, so that, for example, it does not fall with the original suit upon voluntary dismissal or dismissal for want of equity. *Lowenstein v. Glidewell,*5 Dill. (U. S.) 325; *Markell v. Kasson,*31 Fed. 104; *Wilkinson v. Roper,*74 Ala. 140; *Clark v. City of Des Moines,*20 Ia. 454; *Wetmore v. Fiske,*15 R. I. 354; *Coogan v. McCarren,*50 N. J. Eq. 611. It does not follow, however, that the cross-suit may be wholly independent of or unconnected with the original suit. The chancery practice limits its scope, both with respect to the relief obtainable and with respect to subject matter, in several important particulars.

Under the chancery practice, where the purpose of a cross-bill is defensive merely, it need not be based on equitable grounds nor seek equitable relief. *Lambert v. Lambert,*52 Me. 544; *Nelson & Hatch v. Dunn,*15 Ala. 501; *Gilmer v. Felhour,*45 Miss. 627; Story, Equity Pleading (10th ed.), sec. 628; 2 Daniell, Chancery Pleading & Practice, 1549. But this is limited, as stated in *Lambert v. Lambert, supra,*to cross-bills “brought forward by way *195of defense.” When the purpose of the cross-hill is more than defensive and it seeks relief affirmatively, its scope must be limited to matters which are cognizable in a court of equity, if not to matters cognizable upon equitable grounds. *Jackson v. Simmons,*39 C. C. A. 514, 98 Fed. 768; *Wright v. Frank,*61 Miss. 32; *Griffin v. Fries,*23 Fla. 173; *Beal v. Smithpeter,*65 Tenn. 356; *Lautz v. Gordon,*28 Fed. 264; *Crisman v. Heiderer,*5 Colo. 589; *Gage v. Mayer,*117 Ill. 632; *Trapnall v. Hill,*31 Ark. 345. It is also required under the chancery practice that the cross-suit be germane to the original suit. The hew issues which a defendant may introduce by cross-bill are limited to such as it is necessary for the court to have before it in deciding the questions raised in the original suit in order to do complete justice to all parties with respect to the cause of action on which the plaintiff bases his claim for relief. *Krueger v. Ferry,*41 N. J. Eq. 432; *Ferry v. Krueger,*43 N. J. Eq. 295; *Brownlee v. Warmack,*90 Ga. 775; *Mathiason v. City of St. Louis,*156 Mo. 196; *Cross v. De Valle,*1 Wall. (U. S.) 1; *Rowan v. Sharps’ Rifle Mfg. Co.,*33 Conn. 1; Cooper, Equity Pleading, 85.

In *Stuart v. Hayden,*18 C. C. A. 618, 72 Fed. 402, the court say:

> “A cross-bill is brought either to aid in the defence of the original suit or to obtain a complete determination of the controversies between the original complainant and the cross-complainant over the subject matter of the original bill. If its purpose is different from this, it is not a cross-bill, although it may have a connection with the general subject of the original bill.”

In *Krueger v. Ferry, supra,*the court said:

> “The new facts which it is proper for a defendant to introduce into a pending litigation by means of a cross-bill, are such, and such only, as it is necessary for the court to have before it in deciding the questions raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause *196of action on which, the complainant rests his right to aid or relief. If a defendant, in filing a cross-bill, attempts to go beyond this, and to introduce new and distinct matter, not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against either the complainant, or one or more of his codefendants, his pleading will ‘not be a cross-bill.”

If we are to be guided entirely by the rules of chancery practice, we must hold that the cross-petition in this case is not maintainable for the reason that its purpose is more than defensive and the relief which it prays is not sought upon equitable grounds, but by reason of matters cognizable only at law, and with respect to which the law furnishes an adequate and complete remedy. Abuse of process, damages to the building, damages for waste and removal of fixtures, and deprivation of the use of the adjoining store room, are matters for a jury, not for a court of equity. So long as these matters are not set up merely by way of defense, if the chancery practice were to be adhered to, we should be obliged to recommend dismissal of the cross-petition on this ground alone. We are inclined to the opinion, however, that the rules of the chancery practice, in this respect, are so far enlarged, under the code, that, although a cross-petition is more than merely defensive, and seeks affirmative relief beyond the purposes of defense, such relief need not be equitable nor need the cross-petition be based on equitable grounds. It is true some courts, in code states, have adhered to the rule in its entirety. *Crisman v. Heiderer,*5 Colo. 589; *Trapnall v. Hill,*31 Ark. 345. But there seems to be sound reason and good authority for relaxing it. The doctrine that a court of equity, having obtained jurisdiction of a controversy for some purpose clearly equitable, will administer complete relief in the one proceeding, was hampered somewhat, in its application, by the distinction between law and equity and the necessity that courts of equity keep within the limits appointed by that distinc*197tion. Where that distinction and its consequences no longer stand in the way, there is-every reason to hold that the power of courts of equity to dispose of the whole controversy is enlarged so as to permit the legal' as well as equitable incidents involved in a full determination of the subject matter of the original suit to be adjudicated.

“Wherever the true spirit of the reformed procedure has been accepted and followed, the courts not only permit legal and equitable causes of action to be joined, and legal and equitable remedies to be prayed for and obtained, but will grant purely legal reliefs of possession, compensatory damages, pecuniary recoveries, and the like, in addition to or in place of the specific equitable reliefs demanded, in a great variety of cases which Avould not have come within the scope of the general principle as it was regarded and acted upon by the original equity jurisdiction, and in Avhich, therefore, a court of equity would have refrained from exercising such a jurisdiction.” 1 Pomeroy, Equity Jurisprudence (2d ed.), sec. 242.

Conceding that the nature of the relief sought by the cross-petition and the grounds upon Avhich it is sought do not of necessity prevent the defendants from demanding it by way of cross-suit in an equitable action, we have still to consider whether the subject matter of the cross-petition is germane to the original petition in the case at bar and so far essential to the proper determination thereof as to be properly the subject of a cross-suit. We see no reason to doubt that the matters set up in the cross-petition must he germane to the original suit under the code, quite as much as under the chancery practice. This has been assumed generally, without much discussion. o Ency. PI. & Pr. 678. The only relaxation of the rule that there can not be two original hills in one cause, so far as we know, has been Avith respect to cross-bills between codefendants to foreclose second mortgages or other junior liens. The practice of filing cross-petitions for this purpose has always obtained here and has been recognized repeatedly, although not allowed in strictness *198under the old practice. But in such cases the cross-petition is in substance germane to the original controversy. The subject matter thereof is the determination of the priorities of liens, the ascertainment of the amounts thereof, and the subjection of the property to plaintiff’s claim. The defendants who hold subsequent liens are given complete .relief, as against their codefendants, along these same lines. That this practice has not impaired the general rule is made clear by the refusal of the courts to allow .controversies over the title, claims for partition, and the like, to be tried in suits for foreclosure. *Shellenbarger v. Biser,*5 Neb. 195; *Hurley v. Cox,*9 Neb. 230. We think, therefore, that a cross-petition is not maintainable for purposes of affirmative relief as a cross-suit beyond the requirements of a complete adjudication upon the subject matter of the original suit. New and distinct matter, not maintainable under the provisions of the code as to counter-claims, and not involved in a proper determination of the subject matter of the original suit, must be litigated in a separate action. When it is said that a court of equity will administer- complete relief and adjudicate all controversies between the parties, the meaning is that a complete decree will be rendered with reference to the immediate subject matter of the original suit. The subject matter of that suit will not be dealt with piecemeal. It is not meant that all causes of action between the parties, or some of them, will be disposed of in the one cause where they are not involved in a complete disposition of the subject matter of the bill. *Stonemetz Printers’ Machinery Co. v. Brown Folding Machine Co.,*46 Fed. 851; *May v. Armstrong,*3 J. J. Marsh. (Ky.) 260; *Lautz v. Gordon,*28 Fed. 264; *Brownlee v. Warmack,*90 Ga. 775; *Mathiason v.*City *of St. Louis,*156 Mo. 196; *Allen v. Fury,*53 N. J. Eq. 35. *Brownlee v. Warmack, supra,*is especially in point. Plaintiff alleged that he was owner of a mill and obtained the water to operate it from a spring on defendant’s land, under a deed from defendant’s predecessor, whereby he had the right to obtain water *199from the spring by a mill race. He alleged that defendant was threatening to make ditches in and around the spring which would destroy^ or injure his water supply, and prayed for an injunction to prevent this. The defendant filed an answer in the nature of a cross-bill, alleging that the plaintiff had negligently failed to repair his mill race and had allowed breadles in the banks, whereby the water escaped on the defendant’s land and damaged it. He prayed for a decree awarding him damages therefor. It was held that this was not germane to the original petition and, moreover, was a cause of action in tort which, not being set up by way of defense but as a ground for affirmative relief, was not the subject of a cross-bill.

We think the authorities relied upon by the defendants are in entire accord with the principles announced above and afford no justification for the cross-petition in the case at bar. In *Shaughnessy v. St. Andrew’s*Church, 63 Neb. 798, an equity suit was pending involving possession of a church. Afterwards one of the parties brought an action in ejectment to recover possession of the same church. The court held that a plea of another action pending should be sustained. That case, however, does not go to the extent of holding that collateral questions arising out of the wrongful possession of the appellants therein, such, for example, as claims for damages for waste committed, or for damages resulting from the wrongful exclusion of the appellee from the church, should or could have been adjudicated in the equity suit. *Haynes v. Union Investment Co.,*35 Neb. 766, was a suit to enjoin a landlord from dispossessing a tenant without paying for certain furniture, fixtures and improvements, in accordance with the provisions of a lease. Here the subject matter of the action was more than the question of possession. The petition itself raised the whole question of the rights of the parties with reference to the furniture, fixtures and improvements. *Disher v. Disher,*45 Neb. 100, merely involved the joinder of a legal and an equitable cause of action, both arising out of the same subject matter, in one petition. In *Tulleys v.**200*Keller,*45 Neb. 220, the original petition put in issue the right of one of the parties to do business under a certain name and the transactions doné under that name were the subject matter of the litigation. The relief awarded the defendants was with reference to this very subject matter. *Pittsburgh & C. R. Co. v. Mt. Pleasant & B. F. R. Co.,*76 Pa. St. 481, is very similar to *Shaughnessy v. St. Andrew’s Church, supra.*The subject matter of the equity suit being possession, it was held that full relief so far as possession was concerned could be given in that proceeding. In *Kaegebin v. Higgie,*51 Ill. App. 538, suit was brought in equity to enforce an alleged parol agreement to lease for one year. There was also a prayer for an injunction restraining the defendant from interfering with complainant’s possession. The cross-bill prayed that plaintiff’s be enjoined from going upon or occupying the premises, or interfering with the defendant’s possession of the same or exercising any rights or control over the same, and for general relief. Upon hearing, the trial court found for the defendant, dismissed the original bill and put the cross-complainant in possession. This was held proper. *Grignon v. Black,*76 Wis. 674, was an action to enjoin waste. The defendant claimed adverse title under certain tax deeds and prayed that the petition be dismissed and title decreed in him. The court said that as the. plaintiffs had brought the defendant into a court of equity and called upon that court to give them relief, because they were the owners in fee and in actual possession of certain lands to which the defendant laid claim, the latter was clearly authorized to come into the same court and defeat their right to relief, by showing they had no title and no possession; and having shown that such possession and title were in himself he could obtain the affirmative relief to which his title and possession entitled him, as against the plaintiff.

Under these authorities the defendants could undoubtedly have maintained a cross-petition to obtain possession, although that would have been legal relief, *201because possession was tlxe subject matter of the controversy disclosed by the original petition. But possession and the right of possession was all that the original petition covered; and by no stretch can the subject matter of the original suit be extended further. Claims of damages for abuse of process, for attorneys’ fees and other expenses in the several legal proceedings between the parties, damages for deprivation of possession pending such proceedings, injuries done to the property while it was in the wrongful possession of the plaintiffs, and the claim for deprivation of the use of the adjoining building, are in no sense a part of the subject matter of the original suit. In some sense they are connected with that subject matter; but the connection is not a necessary one so as to make it proper that the court pass upon them in order to render a complete adjudication with reference to possession and the right of possession, which alone are the subject matter of the original controversy.

One further point of practice remains to be noticed. Within three days after the rendition of the judgment, the plaintiffs filed a motion for a new trial. Afterwards, and within the twenty days fixed by section 677 of the code, they executed and filed the supersedeas bond *provided*for by that section, for the purpose of an appeal. Their motion for a new trial was not acted on by the court for some time thereafter. It is now urged, on behalf of the defendants, that the district court lost all power to deal Avith the cause after filing of the supersedeas bond, for the period of six months alloAved for the talcing of an appeal, and was Avithout jurisdiction to rule upon the motion for a new trial. It is contended also that the judgment can not be reviewed upon error in the absence of a ruling on that motion. We do not think this point is well taken. In the first place, it is doubtful whether a motion for a neAV trial was required. The substance of plaintiffs’ case is that the pleadings will not sustain the judgment rendered; that, on the face of the pleadings, defendants’ cross-petition, upon which the judgment in *202their favor proceeds, was not maintainable. That question may be looked into on petition in error, although there has been no motion for a new trial below. *Farris v. State,*46 Neb. 857; *Ames v. Parrott,*61 Neb. 847. Moreover, we see no reason why the giving of a supersedeas bond for the purpose of an appeal under section 677 of the code, should prevent the district court from ruling upon a motion for a new trial, theretofore filed, so as to enable the party giving such bond to prosecute error, should he so elect. It is well settled that an abortive appeal will not bar proceedings in error. *Cahill v. Cantwell,*31 Neb. 158. The moving party may elect whether to proceed by appeal or by petition in error, even after the transcript is filed and at any time before final submission. *Burke v. Cunningham,*42 Neb. 645; *Beatrice Paper Co. v. Beloit Iron Works,*46 Neb. 900. Hence, the mere filing of a supersedeas bond for an appeal can not operate as an election, nor can the district court, by delaying to rule upon the motion for a new trial till after the expiration of tlie twenty days fixed by section 677 of the code for giving a supersedeas bond, limit a party to one of two remedies of which he is entitled to choose either. It is true the supersedeas bond operates from the time it is filed for the period of six months allowed for taking the appeal. *Kountze v. Erck,*45 Neb. 288; *State Bank of Nebraska v. Green,*10 Neb. 130; *State Bank of Nebraska v. Green,*8 Neb. 297. Its effect, however, is not to deprive the trial court of all power, but only to stay ‘execution and prevent enforcement of the decree. *Heizer v. Pawsey,*47 Kan. 33; *New Brighton & N. C. R. Co. v. Pittsburgh, Y. & C. R. Co.,*105 Pa. St. 13.

We therefore- recommend that the decree be reversed and the petition and cross-petition dismissed.

Duffie and Kirkpatrick, OO., concur.

By the Court: For the reasons stated in the foregoing *203opinion, tbe judgment of the district conrt is reversed, and the petition and cross-petition are dismissed:

Reversed.