Sturdevant v. Sturdevant

WILLIS, J.,

pro

tem.

By a statement of facts in ordinary and concise language, appellant in her complaint herein stated a cause of action for recovery from respondent of the sum of $2,986.86 on a subsisting and unsatisfied judgment entered in favor of appellant and against respondent by a Nebraska state court on July 1, 1925, for separate maintenance payable in monthly installments indefinitely. In his answer respondent admitted the making and entry of the judgment but denied that it was valid, subsisting and enforceable against him in Nebraska, as alleged in the complaint ; admits that he ceased payments, as required by the judgment, on September 1, 1928,. but denies there is anything unpaid thereon. As a separate and distinct defense, respondent alleges in his answer that he had deeded certain real property in Nebraska to the mother of appellant under an agreement that such deed was m'ade for the use and

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benefit of appellant, the mother to be and act as trustee .for appellant as beneficiary; that said property was of the value of $12,000, subject to an encumbrance in the sum of $4,400; and that in addition to such deed and in settlement of said judgment, respondent delivered to appellant all the furniture in the house on said real property, which furniture was reasonably worth the sum of $2,000. A second defense states that the judgment “has been fully paid and satisfied by the property turned over to the plaintiff by the defendant in settlement of the same and the rents and profits thereof’’.

A third defense relating to certain insurance policies was pleaded but at the trial, by stipulation, was eliminated from the case. In a cross-complaint, respondent alleges the making and entry of the judgment, that he deeded the real property to appellant’s mother in trust for the use and benefit of appellant, and that appellant received from respondent such real property of the value of $12,000, subject to encumbrance in the sum of $4,400 and furniture of the value of $2,000 in settlement of said judgment, and that appellant has since said transfer received the rents and profits from said real property. He also set forth the matter relating to the insurance policies which was abandoned at the trial. He asks for an accounting of rents and profits, and that he be given credit for the value of the real property and furniture and rents and profits in the judgment. By her answer thereto, appellant put in issue the matter of transfer of the property in settlement of the judgment and denied receipt of any rents and profits. After trial the court signed findings and caused judgment to be entered thereon in favor of defendant. Prom this judgment this appeal is taken and brought here by the so-called alternative method, and the only question presented by appellant relates to the sufficiency of the evidence to show payment of the installments of the Nebraska judgment, accruing after September 1, 1928.