Volume 1 — Nebraska Reports

<p>1. Landdoed and tenant : Tenant holding over. A tenant for one year, holding oyer after the expiration of his term, cannot disclaim his relation, nor question his landlord’s title.</p> <p>2. -: Assailing his landlord’s title. Before he can be permitted to assail his landlord’s title, he must surrender his possession, acquired under the lease.</p> <p>3. -: Eviction or its equivalent necessary. Wherever there is a paramount title in a third person, -who has a right thereby to the possession, and it can be done without any collusion or bad faith to the lessor, the tenant, in order to prevent being expelled by the holder of that title, to whom otherwise he would be rendering himself liable as a trespasser, may yield the possession and attorn to or take from such holder of the title, a new lease, or he may abandon the possession. In neither case will he be liable to the first lessor for rent. In the former case, he may resist his first lessor’s claim to the possession, by the new right thereby acquired.</p> <p>4. -: Notice to his landlord. In,all cases, he should notify his landlord of his action.</p> <p>6. -: Pierce v. Brown, 24 Vt. 165, examined and overruled. -</p> <p>6. -: Buying in outstanding title. A tenant buying in an outstanding title for the purpose of protecting his possession, shall have what he has - • paid and legal interest, and no more.</p>

The District Court for Nemaha county had rendered judgment against the plaintiff. It caused to be filed with the clerk of the Supreme Court a transcript of the record of the District Court, and also caused a summons in error to be issued and served. But it did not file any petition in error.

<p>Larceny. The bringing into this State, by the thief, of goods stolen in another State, is not larceny.</p>

Porter sued the Chicago and Northwestern Railway Company in the District Court for Douglas county. The summons was returned served by leaving a certified copy thereof with “ W. B. Strong, the general managing agent of the defendant, at their usual place of doing business in the county of Douglas, State of Nebraska.” The defendant appeared specially, and by motion objected to the service alleging that Strong was not a managing agent within the meaning of the statute.

The appellant filed bis petition in the District Court for Douglas county, against the City of Omaha and Hahn, county treasurer, and alleged therein the following facts : That he was, and for three years had been, seized of a quarter section of land; that part of the land included within the limits of the city was used for agricultural purposes merely, and that the town site laid off into lots was much larger than was now, or was likely to be, required ■ for city purposes ;…

Tbis was a bill in chancery for a specific performance of a parol contract, for the sale of certain real estate. The plaintiff claimed to have made the purchase through one Clarke, who, as he insisted, was the defendant’s agent. Whether O’Connor had ever appointed Clarke his agent, or in any way authorized him to sell the lot, was a question of fact in the cause, much discussed.

Iii the summer of 1857, Smiley possessing such personal qualifications, as under the provisions of the act of Septembei 4, 1841, entitled him to preempt a tract of the public land, erected on the west half of the south-east quarter of section three, and the west half of the northeast quarter of section two, in township fifteen north, range thirteen east of the sixth principal meridian, a substantial dwelling and another house, and fenced an enclosure around the same, and…

This is an appeal from a decree, rendered by Mr. Justice Crounse, sitting in tbe District Court for Douglass county. It was a bill in chancery, filed by John W. Towsley, against these appellants, to recover the legal title to the premises in question.

<p>1. Preparing records. The attention of counsel is called to the necessity of seeing to it, that proper orders are entered in the records of the District Court, and that full transcripts thereof are brought to the Supremo Court.</p> <p>2. Practice : Time to answer. When, to a defendant in default for want of answer, the time is given which is fixed by statute, he has to the' third Monday following, to answer, and no longer.</p> <p>3. -: Objecting to service. A defendant who has answered, although his answer has been stricken from the files, and who has applied to the court for leave to answer over, has appeared to the action, and cannot object to the form of the process.</p> <p>4. -: Opening a default. Whether a default shall be opened, is a question addressed to the discretion of the court. The Supreme Court will not interfere with its exercise, unless it is oppressive.</p>

Sands sued Smith- and others upon a promissory note, dated at Omaha in Nebraska, payable iii New York city, for $5,000 and interest, at 21 per cent per annum. In his answer, Smith set out in kmc verba the usury laws of New York, which make void securities given for a loan of money, by which interest at a higher rate of interest than 7 per cent per annum, is received.

This was a suit in chancery for the foreclosure of a mortgage.- A decree of foreclosure was entered on the 1st day of November, 1866. Notice of appeal was filed the next day. The transcript of the record in the District Court was filed in the Supreme Court, on the 7th. day of September, 1867. A motion was made to dismiss the appeal, because the transcript was not filed in this court, within six months from the filing of the notice of appeal in the District Court.

This action was commenced in the District Court for Douglas county, by John A. Jameson against David Butler, Thomas P. Kemiard, H. G. Worthington and St. A. D. Balcornb, to recover $1,500 for a written opinion given by the plaintiff to the defendants, upon a legal and constitutional question, submitted to him by them.

• The plaintiff hi error was indicted for stealing, in the District Court for Nemaha county, while Nebraska was a Territory. On her admission into the Union, under the provisions of the constitution, the prosecution was transferred to the State Court. Upon the trial, certain testimony was, ou the part of the Territory offered, and under the defendant's objection received ; and this is the subject of his complaint here. The facts are fully stated in the opinion.

Austin sued McReady in attachment. In his affidavit, as ground for the writ, he swore that the defendant bad disposed of his property with intent to defraud his creditors. Rogers was the surety on the attachment bond, given by the plaintiff. The attachment was levied on certain personal property, and one Phelps was garnished. The attachment was dissolved, the court finding that McReady had not disposed of bis property with fraudulent intent.

The plaintiff, Watson, sued McCartney in the District Court for Otoe county, to enforce in equity a vendor’s lien upon certain lands sold by him to the defendants. The summons issued was endorsed with the notice required in cases where a judgment for money only is sought. The defendants not appearing, the endorsement was, by leave of the court amended, so as to conform to the nature of the action ; and judgment was rendered accordingly.

On the 20th of July 1859, Francis Bell was in possession of the south-west quarter of section thirty in township eight north, range fourteen east of the sixth principal meridian, situated in Otoe county, holding the legal title to an undivided half thereof, and, in some way not explained, being entitled to have the legal title to the other undivided half, from certain heirs in whom the same vested.

This was a.n appeal from a decree rendered by Mr. Justice Crounse, sitting in the District Court for Douglas county. The facts are fully stated in the opinion of the court. The arguments consisted mainly of the examination of questions of fact, raised upon the record. It is not deemed worth while to set out the points thus argued.

This was a petition in error to bring up a judgment rendered by the District Court for Otoe county, for review. It was an action for damage for an assault and battery, committed by the defendant upon the plaintiff. The cause was tried at the December term, 1868, before the court and a jury.

This was a petition in error to review a judgment rendered, upon a verdict, by the District Court for Otoe county. The facts sufficiently appear in the opinion of the court.

This was an original application to this court for the writ of mandamus, to be directed to the defendant Colson, as treasurer of Dodge county.

The facts are fully stated in the opinion. In representing the defence in this case, we would state : 1st. That in order for the court to take or consider the motion for a new trial in this case, the record must show that the plaintiff excepted to the overruling of the new trial by the court below at the time that it was done, which does not appeal1.

This was a petition in error filed to review a judgment of the District Court for Otoe county. The facts are sufficiently stated in the opinion. among others not considered by the court, argued the following points: II. The contract was for one year’s service for a fixed price for the term.

Nebraska City sued Baker and Wolfolk for certain damages. Baker having been personally served with process, judgment was rendei’ed against him. Execution issued and was returned unsatisfied. An affidavit alleging these proceedings and other matters usual to effect a garnishment, was filed and an order of attachment issued, upon which a notice of garnishment was served on Bradley and Payne, alleged debtors of Baker.

This was an information filed in the District Court of Otoe county, to try the right of the defendant to exercise the duties of clerk of the said court.

This was an action of replevin of a pair of mules, brought by Homan against Laboo and Ward, in the District Court for Otoe county. Laboo answered separately, alleging that he was the owner of the property. The cause ivas tried to a jury. The plaintiff was sworn on his own behalf, and testified that he was surety for Ward in a replevin suit pending before a justice of the peace, in Douglas county, and that Ward placed the mules in his possession as security.

This was an appeal from a decree rendered by Mr. Justice Crotose, sitting in the District Court, for Douglass county.

This is an appeal from a decree, rendered by Mr. Justice Crounse, sitting in the District Court for Douglas county. The bill was filed on the 21st day of August, 1865, in the District Court of the late Territory of Nebraska.

This was an. action brought in the District Court for Douglas County, by Emerson PI. Eaton and Sarah M., his wife, to recover from the defendant, Redick, a sum of money paid by the plaintiff, Sarah M., to the defendant, on account of a contract for the sale of a lot in Omaha, which, by reason of their failure in their payments as agreed, Redick had rescinded. The plaintiff had judgment, to reverse which the defendant brought this petition in error.

<p>This was a motion to dismiss an appeal. The facts sufficiently appear in the opinion of the court.</p>

McCready, being insolvent, made a deed of assignment of all his property to Meredith, in trust for his creditors. He was largely indebted to Kennard shortly before he made the assignment. Thomas P. Kennard, a brother and attorney of the creditor, applied to McCready to secure his debt. After considerable negotiations, McCready gave to the attorney three notes for $1,000 each, made by McMurphy to McCready’s order, and by him indorsed.

This was a petition in error to an order made by the District Court for Burt county. The facts fully appear in the opinion.

<p>1. Practice : Appearance to summons in error. An attorney of record in a cause in the District Court, may, when the cause is removed into the Supreme Court, enter therein the voluntary appearance of Ms clients, without the'issue or service of summons in error.</p> <p>2. -: Records in Supreme Court. Transcripts of record's of proceedings had in the District. Court, when filed in the Supreme Court for the purpose of reviewing the action appearing thereby, must show when and where the court was held, its term, and the names of the judge and other officers present, and be duly authenticated by its clerk.</p>

This was a petition in error- to reverse a judgment rendered by the District Court for Douglas county, when Nebraska was a Territory. The facts fully appear in the opinion.

This was an appeal from a decree of the District Court for Dodge county. The facts appear in the opinion of the court. The vacation of parks and closing of streets and alleys ■ are not within the delegated powers of the trustees of towns in this State, as see Nebraska Statutes of 1855 and ■ ’56, page 41, sec. 4.

<p>The facts fully appear in the opinion of the court..</p>

<p>This was an appeal from a decree of the District Court for Otoe county. The facts fully appear in the opinion.</p>

<p>1. Practice : If notice of appeal from a judgment be served upon the successful party and the clerk not until thirty days have expired from the rendition of the judgment, they are ineffectual to give the Supreme Court jurisdiction.</p>

This action was originally brought in the District Court for Otoe county, by Arba Holmes, against Boydston and Heth, defendants, upon a contract entered into by the parties, whereby Holmes, Gould & Co., agreed to furnish the material and put up the machinery in a mill for defendants, for the sum of five thousand five hundred dollars. To the petition of the plaintiffs the defendants filed an answer. While the cause was in this situation depositions of witnesses were taken.

This was an action for a divorce, brought in the District Court for Dacotah county, under the Chancery Code, prior to the late repeal of that Code and the amendments of the Code of Civil Procedure, conforming the common law and equity practice the one to the other. The bill was filed on the 18th of October, 1866 ; and proceedings were had thereon not material to be farther stated, than that the defendant appeared thereto and defended the same.

On the 19th day of May, 1868, Morgan sued Larsh, Hail who was sheriff, and Dickey, who was probate judge of Otoe county, together with their sureties on their official bonds, in the District Court of that county. The action, as stated in the petition, was for damages for the taking by Larsh, Hail and Dickey, of the plaintiff’s horse, and converting it to their own use. The transcript filed here contains the precipe, and the summons with its endorsement.

This was a writ of error to the District Court for Washington county. It was an indictment under which the plaintiffs in error were convicted. The facts sufficiently appear in the opinion. I. On overruling motion to quash. 1. That the caption is not such as is prescribed by law, in this — that the description of the court is not that of any court created or recognized by law. — It. 8. of Nebraska, jp. 630; 1 Gldtty's Grim. Law, 327. 2.

This was a petition in error to the District Court for Otoe county.

This was an indictment for murder. Its caption was thus : Of the November term of the District Court of the Third Judicial District, held in and for the county of Lincoln pursuant to appointment and notice of his honor L. Crounse, judge of said district, in the year of our Lord, 1868.” Attached to the record, but apparently not a part of the transcript certified by the clerk of the District Court,- are the following papers : A copy of an affidavit made by Charles L. Jenkins,…

This was a petition in error filed in this court by the Midland Pacific Railroad Company. The facts are fully stated in the opinion except the single one that a motion for a new trial was filed in the court below, and that errors assigned in the petition in error are not included in the motion. The line of plaintiff’s railway crosses the defendant’s land. Defendant refused to give the right of way across the same.

This, like the preceding case, was brought up by petition in error, from the - District Court of Otoe county. • It was argued in connection with that cause.

<p>1. Judicial sAle: Confirmation. The'return of the sheriff or master of a judicial sale must show that the appraisers were residents of the county in which the premises are situated.</p> <p>2-. —:—: In parcels. ■ Each lot or parcel of ground must be appraised and.sold separately, or the sale will be set aside.</p>

This was an action brought in the District Court for Otoe county upon a promissory note of which the following is a copy: “Kearney City, Avgust 3, 1857. “ Thirty days after date we, or either of us, promise to “pay Joseph Moffat, or order, one hundred and fifty dollars “in gold, with five per cent per month interest from date, ' for value received. “ C. W. PIERCE, “JOHN CAMPBELL. Endorsed as follows : “Eor value received, I assign the within note to H. O. “Blackman.

This was a creditor’s bill filed in the District Court for Douglas county, on the seventh of August, 1858. At the March term, 1858, of said court, Rogers recovered a judgment against Jones and Wood for $1,181.79, on which execution was issued and returned unsatisfied. At the time of the recovery of the judgment the defendants were druggists in Omaha, and shortly thereafter dissolved the partnership, Jones continuing the business and Wood leaving the Territory.

<p>1. Bepeaes. A right of action or remedy, founded solely upon a statute or a suit to enforce such remedy, not prosecuted to judgment, is determined by the repeal of the statute.</p>

This was a bill in chancery, filed in the district court for Douglas county. The complainants were four judgment creditors of Henry, who claimed to have furnished to him the materials with which a brick block was built by him on the premises in question.

<p>1. Appeals under Town site Act are not governed by the act subsequently passed regulating appeals injustices’ courts. They are sufficient if taken orally on the date of the mayor’s decision and note in his docket.</p>

This was a bill in chancery, filed in the District' Court for Douglas county. It alleged that, on the 27th of July, 1862, Jamison sued Aumock, in the said court, for the recovery of a debt, and that the summons issued in said action was returnable on the 4th day of August, 1862, and that the summons was served on Aumock on that day and was also returned on that day. -The defendant failed to appear to the. suit and judgment was entered, against him.

Clark held a mortgage against Hotailing, and, in 1858, filed his bill to foreclose the same. Having filed his affidavit showing such facts as are required to be shown in order to authorize a publication of notice of the pendency of suit to a non-resident defendant, he proceeded in the cause, according to the usual course in such cases, had his decree by default, a sale; a confirmation and a deed, all the proceedings being regular in point- of form.

This was an action of replevin brought in the District Court of Douglas county. It was brought to recover the possession of certain houses which had been erected by Mrs. Mills upon the lot, the title to which was the subject of inquiry in Mills v. Paynter, infra 432. Under the judgment in that case she and her husband, who had charge of the property, were evicted, leaving the houses on the lot.

This was an action for the recovery of the possession of real property, brought in the District Court for Douglas county.. .The answer was as follows : “And now comes George M. Mills, the defendant, and for.answer to the matters contained in the petition of the plaintiff, says that he denies all the statements and allegations in said petition contained. “And this defendant, further answering, denies that the said plaintiff now is, or was, on the first day of May, 1857,…

This was a bill in chancery, filed in the District Court for Douglas county, to recover the title to an undivided half of a lot in the city of Omaha. It appeared that a controversy sprang up, at an early day in the history of the city, between Brown and- General Samuel B. Curtis, in respect of a large number of lots therein ; the lot in controversy in this said suit being one of them.

The question presented in this action was whether this court could decree ■ a foreclosure of a mortgage without a sale of the premises. 1. 1. The courts of this territoi-y, when sitting as courts of chancery, have all the powers of the English courts of chancery. — Organic Act, Section 9, McMeehan v. Nicholls, decided in this court in June, 1857 ; 1 Sess. Laxos, 328 ; 1 Sess. Laws, 190 ; 3 Sess. 41. . 2.

On the 28th of January, 1863, the parties hereto entered into “ articles of submission ” to arbitrators, in which were recited divers matters of difference between them, after which was the folio-wing : “Now, therefore, we, the undersigned, George M. Mills and Thomas Murry aforesaid, do hereby submit the said controversy and the matters above stated, to the arbitrament of S. J. Goodrich, Oscar F. Davis and S. M. Parmelee, all of said city of Omaha; and we do mutually…

Pomeroy filed Iiis creditor’s bill against George Bridge, in the District Court for Douglas county, and James G. Megeath was therein appointed receiver of the rents and profits of certain premises. A considerable sum having accumulated in his hands, several parties applied to have the same paid to them. One of these parties was Charles Bridge.

This was a bill in chancery filed in the District Court for Cass county¡ for the foreclosure of a mortgage. The mortgage was made by Fooks on the 2d of October, 1857, but for reasons not material to be stated here, was not filed for record in Cass county in which the premises were situated, until the sixth of April, 1858.

Oil the 17th clay of June, 1859, Charles F. Holly sold and conveyed to Adams certain lands in Nebraska city, and the deed -was duly recorded on the 30th of June of the same year.

This was a bill to foreclose a mortgage, filed in the District Court for Douglas county, by Cook and others,' against the Florence Land Company and Kuhn.