Volume 2 — Nebraska Reports

This was an action to recover $4,221.06. The petition alleges that the plaintiffs are partners in the banking business, and have been since the thirteenth day of July, 1868; and that they do business under the firm name of James Sweet & Brock. The balance of the petition is in the usual form for money paid, laid out, and expended for the defendant at his request.

<p>Mandamus : Mechanic’s lien against state buildings. Where commisi sioners of public buildings contract with A for the erection of a building for the State, — e.g., a State lunatic asylum, — a subcontractor who has done work or furnished material is not entitled to mandamus upon the commissioners to compel them to draw their warrant upon the fund appropriated for the erection of the building.</p> <p>Argument 1. The mechanic’s lien law does not apply to buildings erected by the State for public uses, because the State cannot be sued.</p> <p>2. The commissioners are not bound to recognize any one but the party with whom they contract.</p> <p>3. The inconveniences of any other rule would be very great.</p>

On the twelfth day of November, 1870, Lathrop obtained a judgment against Dobson before a justice of the peace, on which execution issued to the sheriff of Lancaster Countjr. The sheriff levied upon all of the property of the defendant, consisting of household furniture and carpenter’s tools, of less value than five hundred dollars.

This is a petition -in error to review a judgment of the District Court for Cass County. The facts are sufficiently stated in the opinion of the Court. 1. The facts set forth in the answer do not constitute a defence to the plaintiff’s cause of action. Cleveland Pittsburgh Railroad Co. v. Stackhouse, 10 Ohio St., 327; Van Sanvoord’s Pleadings, 565, 566, 569. 2. Where no cause of defence is stated, the objection can be taken for the first time on error.

<p>Attachment: Affidavit. An affidavit for an attachment is sufficient if it be in tbe words of tbe statute, and does not set forth the facts on which the allegations thereof are based.</p> <p>-: Preponderance of proof must be in favor of the party suing out the attachment, when affidavits are filed to disprove the charge made in that on which the order issued.</p>

<p>Practice : -Appeals. A judgment rendered in an action at law, during the prosecution of which in the District Court no exception was taken to any ruling, cannot be brought to the Supreme Court by appeal, and there tried de novo.</p>

This was an action bxongbt on tbe twenty-second day of September, 1865, in tbe District Court for Washington County, for tbe foreclosure of a mortgage made by Ryley, tbe defendant, to Kyger, tbe plaintiff, on tbe 23d of September, 1857, to secure a note of that date, made by tbe former to tbe latter, payable one year after its date. Tbe petition alleged a payment of one dollar, made by tbe defendant on tbe 4th of September, 1865.

This was a petition in error to a judgment rendered by the District Court for Douglas County, in fayor of the plaintiffs, for $3,299.40. It was an action upon a bill of exchange, of which the following is a copy: — “ Banking-House of J. A. Ware, Nebraska Citt, Nebraska, Aug. 2d, 1869. “ Pay to tlie order of ¥m. T. Allen three thousand dollars. (Signed) J. A. Ware, By H. N. Shewell. “ To Imp. & Tra. Nat. Bank, New York.” (Indorsed) “ Wm.

This was a motion to dismiss an appeal from a judgment of the District Court for Otoe County. The action was for the specific performance of a contract. At the term of the Court being held on the seventeenth day of August, 1868, Mr. Justice Lake, who was assigned to hold the District Courts in the second district, presided. Otoe County is in the first district, to which Mr. Chief Justice Mason was assigned. The statute authorizes one judge to hold courts for another.

<p>A plaintiff cannot have costs of his action, if he bring it in the District Court, when it is within the jurisdiction of a justice of the peace, even though the District Court have concurrent jurisdiction.</p>

' Warren B. Franklin brought his action in the District Court for Washington County, under the provisions of the first chapter of title 18 of the Code of Civil Procedure, to recover from Timothy Kelley and Michael Kelley the possession of the west half of the north-west quarter and the south-east quarter of the north-west quarter of section twenty, and the west half of the south-west quarter of section twenty-nine, in township seventeen, north of range thirteen, east of the…

This was a .petition in equity, filed in the District Court for Lancaster County, to compel the specific performance of a contract for the sale of lands; which contract was in the following words: — “ Articles of agreement made and entered into by and between the undersigned parties hereto, witnesseth: that for and in consideration of the mutual agreements and covenants hereinafter expressed, we, the undersigned, do hereby agree and bind ourselves, and each of our heirs,…

This was a petition in equity, filed in the District Court for Douglas County, to have a judgment declared void, and execution upon it enjoined. The record shows, that on the 6th of October, 1859, Jones commenced an action against Johnson in the District Court upon a promissory note for $943.40. The petition which he filed was not verified; but summons was issued to the sheriff, commanding him to summon Harrison Johnson.

This was a petition in error filed to obtain a reversal of an order reinstating a cause, dismissed out of the District Court for Nemaha County for want of prosecution.

This was an action of ejectment, in which both parties derived title from one Dawley, — the plaintiff by deed from him, and the defendant by virtue of a judicial title acquired in proceedings against him. These proceedings were in an action, brought in 1868, while Nebraska was a Territory, in attachment, by one Phillips against Dawley. The affidavit for the attachment was without a venue, and the writ was in these words: — Teeritoby of Nebraska, CotjNty of Burt, ss.

This was an indictment for murder, found in tbe District Court for Cass County. Held: then and there unlawfully, wilfully, feloniously, and of his malice aforethought, did discharge and shoot off, to, against, and upon the said Sarah J. Powers; and that he, the said Tallant Rakes, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Tallant…

The city of Omaha was indebted to one Lampiere in the sum of 1-320; and he assigned his demand to the relator, who duly presented it to the city council; by which body the demand was audited, and an order passed directing the mayor to draw his warrant upon the treasury for the same. But, prior thereto, certain creditors of Lampiere, in actions brought by them against him, sued out attachments, and caused notices of garnishment to be served upon the city.

<p>Practice : Transcript. A transcript of the record of the proceedings of the District Court filed in this Court must show upon its face when, where, and before what court, the proceedings were had, so as to make it appear that they were before a court known to the law, held at a time and place authorized by law, and were coram judice.</p>

This was replevin, brought in the District Court for Otoe County, in which a judgment upon the verdict of a jury was rendered in favor of the plaintiff. The defendant brought petition in error to reverse the judgment.

This was a petition in error filed to reverse a judgment of the District Court of Otoe County. Held: that the county was not liable to A for any services rendered by him under said appointment. Hoover v. Hoover, 5 Blaclcf., 182. Commissioners were authorized to establish roads of a width not exceeding forty feet. An order by them establishing a road of undefined width is void. White v. Conover, 5 Blaclcf., 462.

This was a petition in error, filed to review a judgment of the District Court for Douglas County. The facts are fully stated in the opinion. I. There was such a delivery of the goods as defeated the right of stoppage in transitu of Sutro & New-mark.' Biggs'et al. v. Barry et al., 2 Curtis, 259. The stoppage must be while in transitu, and before goods delivered at destination.

This was a writ of error to the District Court of Douglas County. The plaintiff in error was indicted in that Court for burglary; and the plea of not guilty was put in by him. The cause having been moved for trial, the names of persons summoned on the regular panel were called, and among them that of Howard W. Crossley, who was a colored man; for which sole reason the defendant challenged him as not competent to sit on a jury. The Court overruled the objection.

In bis petition, the plaintiff alleged that one Wilson mortgaged to John W. Pyle an undivided two-thirds of certain books of abstracts of title, enumerated, to secure his note for two hundred… Held: that a refusal by one partner is evidence of conversion by all the parties. 3. Demand made by an agent of the party interested is sufficient to support the action. Harmon v. Barstow, 23 Mis. (1 CushJ), 276.

This was an action brought by French to foreclose two mortgages executed by Ramge to the plaintiff. Ramge was a merchant-tailor, doing business in Omaha, Nebraska.

Petition in error to Lancaster District Court. The action was upon a promissory note made by Mitchell, Hunt, and Boyer, to the plaintiff. Boyer defended, alleging that he was surety on the note for Mitchell, who at its date gave a chattel mortgage to the plaintiff upon sufficient property to secure the debt; that the plaintiff neglected to record the mortgage, and Mitchell had squandered and disposed of the property, whereby the security was lost to the surety.

Petition in error to the District Court for Otoe County. It was an action for the foreclosure of a mortgage given by the defendant McCann to one Bear to secure two notes given by McCann as part of the purchase-money of the mortgage premises. The notes were assigned to the plaintiff after maturity. The defence alleged was a defect in the vendor’s title. The plaintiff demurred to the answer; and the demurrer was sustained.

Petition in error to the District Court for Dodge County. The facts are fully stated in the opinion of the Court. The sections of our statute referred to above make these judgments a lien from the day of the filing, in the same manner and to the same extent as if they had been rendered in the District Court.

This was a petition in error to a judgment rendered by the District Court for Otoe County. The facts sufficiently appear in the opinion of the Court.

Petition in error to the District Court for Otoe County. It was an action of replevin, brought by Homan against Laboo and George Ward to recover possession of a span of mules. Homan claimed a special ownership, growing out of the following state of facts. The property being in possession of one Adcock, Ward, claiming the general ownership, brought suit, and replevied the same.

This was a petition in error to review proceedings in partition, had in the District Court for Douglas County.

The plaintiff was a girl of three and a half years of age; and the defendants were the Midland Pacific Railroad Company, and the members of the firm of J. N. Convers & Company, contractors for building the railroad company’s railroad.

The facts are fully stated in the opinion. 1. The Court below erred in admitting in evidence the deposition of Samuel G. Willard.

<p>Specific Performance. The agent of judgment creditors bid off land in his own name at the execution sale, and afterwards received a sum of money for releasing the property from the sale to the judgment debtor; notwithstanding which the sale was confirmed, and deed made to the agent. Held, that the agent and the creditors may be compelled by decree to convey the title so acquired to the debtor.</p>

Petition in error to the Douglas District Court. Held: that the powers of government, and of its several departments, are to be ascertained from the constitution, and not from a consideration of elements supposed to inhere in the nature of the subject.

It was ejectment brought by Morton, Hopkins, & Manners, against Green & Smith, to recover tbe south half of tbe north-east quarter of section twenty-one (21), and the north half of tbe south-east quarter of section twenty-one (21), and tbe south-east quarter of the northwest quarter of said section twenty-one (21), all in township number ten (10), north of range number six (6), east of the sixth principal meridian.

This action, brought in the United-States Circuit Court for Nebraska, was an ejectment, upon the trial of which it appeared that one Frailey pre-empted the land, and conveyed it to the Sulphur-Springs Land Company before the patent issued. After the patent issued, Frailey conveyed the land to the plaintiff. The case is reported in 13 Wallace, 291. It was argued by H. Cobb and L. Douglas, for Myers ; Redich & Briggs, for Croft.

This case, reported in 1 Nebraska, 95, was carried by writ of error to the United-States Supreme Court. The case of Smiley v. Sampson, 1 Nebraska, 59, was also carried to that Court. The former is reported in 13 Wallace, 72; and the latter, id., 91.

This was an action brought in the United-States Circuit Court for the District of Nebraska upon certain coupons detached from bonds issued by the defendant to the Burlington and Missouri-River Railroad Company, by which they were transferred to the plaintiffs. On the trial the judges differed in opinion, and certified the points to the Supreme Court, where it was argued by J. M. Woolworth for the plaintiffs, and Gilbert B. Scofield for the defendants.