Volume 3 — Nebraska Reports

This was a petition in error brought to reverse the judgment of the district court of Washington county.

This case comes before this court upon motion of the attorney of McLennan, to set aside a judgment rendered at the July Term, 1872, in favor of McCann. The case is reported in 2 Nebraska Reports, 286. Erom tbe report of that case, and the affidavit filed in support of this motion, it appears that the action in the district conrt, brought by McCann against McLennan, was based on a promissory note by tbe latter to the former.

These were two cases commenced in tbe district court of Washington county, tbe first being an appeal from tbe decision of tbe board of county commissioners in overruling the petition and motion of tbe Sioux City and Pacific Railroad, to set aside tbe action of tlie board in raising the assessment of said railroad from six to twelve thousand dollars per mile, and the other being a petition in error alleging manifest errors in the proceedings of said ' board concerning the…

This was a petition in error to review the judgment of the district court of Dodge county. The case is fully stated in the opinion of the court. submitted tbe following points: I. Was the fact of tbe defendant running its train behind time, as stated in tbe petition, negligence? II. If so, was snob negligence of tbe defendant tbe proximate cause of tbe injury complained of? As to tbe first point, we submit: 1.

Bouvier, tbe defendant in error, brought his action against Eugenie Courvoirsier in the district court of Washington County, to obtain a re-conveyance of certain real estate, formerly owned by him, and which he had conveyed to her through the medium of a trustee, she being at the time of said conveyance the wife of Bouvier. Judgment being rendered in his favor, Mrs. Courvoirsier brought the cause here by petition in error. The facts fully appear in the opinion of the court.

This was a petition in error to reverse a judgment of tlie district court of Douglas county. The facts are substantially as follows: On the eleventh day of November, 1868, R. B. Price and Thomas Tallón, the plaintiff in error, being engaged in business as merchant tailors at Omaha, Nebraska, executed a mortgage on their stock of goods to Jones and Stutsman, of Leavenworth, Kansas, to secure the payment of $5000.

This was an action of covenant. To the petition, the defendant interposed a general demurrer which was sustained by the district court of Nemeha county. The cause was then brought here by petition in error. The case is fully stated in the opinion of the court. Mills, who was plaintiff in the district court, was plaintiff in error here. contended: T. The general common law rule in assigning breach of covenant, is to negative the covenant. 1 Ohitty’s Pleádimg, 332, 333.

This action was cominenced in the district court of Douglas county, to obtain a partition of certain real estate therein situated, and for an account of the rents and profits of the same. The court entered a decree appointing three referees to make partition of the premises, and another referee, to take an account of the rents and profits. The referees appointed to make partition reported that the premises could not be divided and recommended that they be sold.

This action was commenced in tbe district court of Otoe comity, by the defendants in error, to enforce an alleged trust as to certain lands known as the undivided balf of lot two in section twenty-nine, and thirty-two and a balf acres off the west side .of tbe south west quarter of section thirty-one, township nine, range fourteen, east, the legal title to which was in the plaintiffs in error.

This was a petition in error to reverse the judgment of the district court for Lancaster county. ' The facts are fully set forth in the opimon of the court. stated the case and contended: I. The bond runs to the city of Lincoln and not to the county of Lancaster as the statute requires, and it is only upon the statutory bond that an action like the plaintiff’s can be brought. II.

This was a petition in error from the district court of Saunders county. Plaintiff in the court below had'judgment, and one of the defendants, Andrew J. Cropsey, brought the cause here. The case is fully stated in the opinion of the court. Seth Robinson, for plaintiff in error, after stating the case, contended: First. The code authorizes the amount claimed by the plaintiff to be endorsed on the summons in actions for the recovery of money only, but in no other case.

This was a petition in error brought to reverse the judgment of the district court of Washington county. The case is fully stated in the opinion of the court. I. The bond was defective in not having two sureties. Was this an error prejudicial to the defendant?

Ebbor to the district court of Madison county. Goodrich was defendant in the court below, and, judgment being rendered against him, brought the cause here by petition in error. The facts are fully set forth in the opinion of the court.

This action was commenced by Sophia Lowe, in the district court of Douglas county, to obtain an injunction perpetually restraining the plaintiffs in error from removing or interfering with a certain frame building situated on a portion of lot five, in block one hundred and thirty-four, of the city of Omaha.

This was an action of ejectment brought by Maria M. Bessinger; against Frederick Schade, Sr., and Frederick Schade, Jr., for the recovery of the possession of a certain tract of land in Richardson county. The facts in the case are substantially as follows: Frederick Schade, Sr., a native of Germany, emigrated to the United States, and in the year 1864 married Maria M. Bessinger.

This was an action upon a contract in the following terms: “ This article of agreement entered into this 20th day of August, 1868, between Holmes and Gould of the first part, and Wilhite and Columbia of the second part, witnesseth; that Holmes and Gould of the first part do agree to furnish to the parties of the second part the following : one tube to go through the dam, 36 or 40 inches in diameter, 18 or 20 feet long.

On the 27th day of December, 1872, Boyer obtained a judgment against W. P. Clark, for the sum of $37.89, and $9.15, costs of suit. At the time Boyer commenced that action, he procured an order of attachment against the property of Clark upon the usual undertaking therefor.

' This was an appeal from an order of the district court for Otoe county, setting aside a sheriff’s sale of certain real estate under a decree of foreclosure, on the ground that it was a family homestead. The facts are fully set forth in the opinion of the court. Mr. Justice Gantt, having been of counsel in the court below did not participate in the decision of the cause in this court.

This was a petition in error to reverse a judgment of the district court for Dodge county. It appeared from tbe petition of the plaintiffs that a county road had been laid out in Eremont precinct, Dodge county, commencing at the town of Eremont, and running across to the south bank of the Platte river.

This was an action brought in the district court of Otoe county, by S. J. M. Kellogg, the defendant in error, against Hughes and Bickle. Upon a trial of the cause, a verdict being returned in favor of Kellogg, judgment was rendered thereon, and to reverse that judgment, Hughes and Bickle brought the cause here by petition in error. The facts fully appear in the opinion of the court.

Alexis Paulett brought suit in tbe district court for Richardson county, to foreclose a mortgage upon certain real estate situated therein, executed by Joseph and Jane Brown to ITolt and Scott, and by them assigned to Paulett. Louis Hax who held a prior mortgage was not made a party to the suit. A decree of foreclosure was rendered and a sale of the premises made by the sheriff, one J. M. Peabody being the purchaser.

This was a suit in equity commenced in tbe district court of Otoe county, on the twenty-second day of February, A. D. 1866, by Pinney and Company and Dwight J. McCann, against The JEtna Insurance Company of Hartford, Connecticut, wherein the eom'plainants prayed for a decree of the court, ordering the defendant to make, execute, and deliver to them, a contract of insurance, and to recover the sum of four thousand five hundred dollars, alleged to be due on a loss suffered by…

This-was an appeal from a decree dismissing plaintiff’s bill, brought into this court under the provisions of section 45, of the-chancery code of 1864. The cause was tried before Mr. Chief Justice Mason, sitting in the district court for Douglas county. Chief Justice Late having been of counsel in the court below, did not participate in the decision of the cause in this court.

This was an action brought by defendant in error against the plaintiffs in error in the district court of Cuming county to recover tbe sum of $235.80 damages, alleged to have been sustained by failure of plaintiffs in error to comply with a certain contract entered into by them and defendant in error, in relation to tbe purchase of a crop of wheat belonging to tbe defendant in error.

This was a petition in error to reverse a judgment of the district court for Cass county. To the petition of the defendant in error, who was plaintiff in the court below, the defendant filed a demurrer which was overruled by the court. The defendant then filed his answer, and a trial being had judgment was rendered against him for the sum of $174.42 damages, and $146.47 costs. The cause was then brought to this court by petition in error.

This was a petition in error to reverse the judgment of the district court of Dodge county, affirming a judgment of the probate court upon an award of arbitrators, duly made and returned to said probate court, in pursuance of the agreement of submission.

The facts in the case are fully set forth in the opinion. The record in this case shows so plainly the justice of the plaintiff’s claim that authorities need not be cited.

'Tots action was tried in the district court of Gage county, on appeal from the award of three commissioners appointed by the county commissioners of that county, to assess damages sustained by John Wagner, by reason of the location of a public road on the north line of the west half of the north east quarter of section twenty-two, in township four, north of range six, east of the sixth principal meridian, thence south through the center of said section, taking in all about…

This was an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus to compel the county commissioners of Hamilton county to post notices of the re-location of the county seat of said county at Aurora, in accordance with the result of a vote taken at the general election on the second Tuesday of October, 1873, and to remove the records of the county to that place. The application was substantially as follows: “To the Supreme.

This was an application for leave to file a petition in error. cited section 428 of the code of civil procedure, General Statutes, 596, and Lisle v. Rhea, 9 Missouri, 173; and also read from Freeman on Judgments, Chap. I, §§ 16-36.

This was an appeal from a decree rendered in the district court of Douglas county, brought to this court under the provisions of the act of March 8, 1873. General Statutes, 716.

<p>^Partnership : liability of effects of, for debts of firm. The effects of a partnership cannot be released from the payment of debts against the firm, without the consent of every member thereof; and if a mere dissolution take place, it will be presumed that the assets of the firm are held by the member, in whose possession they may be found, in trust for the purpose of satisfying the demands of their joint creditors.</p> <p>Execution: exemption. One member of a partnership, even though .the head of a family, can not, under the provisions of Chap. 57, General Statutes, Secs. (512), (513), claim as exempt from forced sale upon execution, any portion of the partnership property, which has been levied upon to satisfy the claims of the firm creditors.</p>

This action was brought in the district court for Nemaha county, by Sarah Ann Fishburn, to recover damages for slanderous words ■ alleged to have been spoken of her by Thomas Heady. The cause was tried to a jury, who returned a verdict in favor of the plaintiff, upon which judgment was duly rendered in her favor. To reverse this judgment Thomas Heady, who was defendant in the court below, brought the cause to this court by a petition in error.

This was a petition in error to reverse a judgment of the disti’ict court of Johnson county. Cornell was plaintiff in the court below, and judgment being rendered in his favor, the defendants prosecuted this petition in error. The case is fully stated in the opinion of. the court.

This was an application for a mandamus brought in the district court for Lancaster county, by the relators, more familiarly known as the State Journal Printing and Publishing Company, of Lincoln, Nebraska, to compel the defendants to audit and allow a certain account for printing the local laws of the Ninth Session of the Legislature, printed by the relators under a contract with the State, and in pursuance of the provisions of an act entitled “ An act to provide for the…

This was an application for a mandamus brought in tbe district court of Lancaster county. Tbe defendant had judgment, and tbe relators brought tbe cause here by petition in error.

Suit on a promissory note for one thousand dollarsj dated April 10, 1872, and payable sixty days after date at tbe Park Bank, New York, given by plaintiff in error, Robert Kittle, to Asber & Adams, and by tbe latter endorsed in blank and deposited for collection in tbe Park Bank, New York, May 25, 1872.

This cause was originally commenced in tbe probate ■ court of Douglas county, by Tilden and McFarland, and upon a trial thereof before A. N. Ferguson, special probate judge, without a jury, judgment was rendered in’their favor against Charles F. Taylor. A bill of exceptions, ■ showing certain proceedings in the cause, was signed by the said Ferguson and a transcript of the record, together with a petition in error, was filed in the district court by the said Taylor.

Apbeal from Cass county district court. The action was commenced on the 26th of August, 1865, in the district court of Richardson county, by Polly Wamsley, the widow, and Selia Wamsley, and others, heirs of Asbury Wamsley, against Jesse Crook and John Hall.

Petition in error from the district court of Otoe county. The opinion states the case. 1. The evidence in the court below was clear that Hurst never signed the note, or intended to sign the note; and if the evidence was conflicting, and the question purely one of fact, the supreme court will not disturb the verdict. Clark v. Davis, 7 Terns, 556. Sims v. Chance, Id. 561. Lessees of Ludlow v. Pa/rk, 4 OMo, 40. State v. Lamont, 2 Wis., 437. Bates v. Bates, 27 Iowa, 110. II.

The plaintiff in error was indicted for murder, tried and found guilty of manslaughter at tbe March term, -A. D. 1873, of the district court of Richardson county.

The opinion states the case. said, i/nter alia, that the defendant in error could only be allowed the relief prayed for, and granted by the court below, upon the assumption that the act of 1869 operated as a grant, or that, upon acceptance of its provisions, it became a contract between the state and the companies so accepting, neither of which views could by any fair construction of the act be maintained.

The opinion states the facts of the case. First. The only question in the case is this: Is an attaching creditor entitled, by virtue of the levy of an attachment on the property of his debtor, to maintain a petition in the nature of a creditor’s bill to set aside fraudulent conveyances and incumbrances of the attached property made by his debtor prior to the attachment? Second.

The opinion states the case. The court erred in refusing to allow the plaintiff to prove a parol submission to arbitrators, and an award thereunder. The General Statutes of Nebraska have not changed the law in relation to submitting matters in controversy to arbitration, except in cases where the parties enter into a submission in pursuance of the provisions they contain.

The opinion states the facts of the case. Plaintiff in the court below, Lippold, had j udgment and defendant brought the cause here by petition in error. It is not disputed that the building was burned April 13th or 15th, 1871. This is stated in the petition, the answer, the testimony of Lippold, and in his letter of July 15th, 1871, to Taylor the Superintendent of the Ins. Co. at Chicago.

It was an action brought by plaintiff in error, under the statute relating to “ mechanic’s liens,” the claim being for material furnished as a sub-contractor for the erection of a court house owned by defendant in error. The defendant in error demurred to the petition, and the same being sustained, judgment dismissing plaintiff’s petition, and for costs, was entered.

In this case a writ of habeas corpus issued out of this court, directed to the defendant, Parker, the purpose of which was to test his authority to hold the relator, A. ~W. Tennant. Held: from the beginning, that he could remove without an express power to do so. The power to convene a body implies a power to prevent its convention, before this is accomplished. The power is not executed fully until the convention has taken place. Until fully executed it may be withheld.

This was a civil action commenced, in the district court of Nemaha county, by William H. Hoover, assignee in bankruptcy of Andrew J. Scott.

At the March term, 1872, of the district court of Otoe county upon affidavits tending to show that a judgment entry upon the journal of said court for the March term, 1869, was irregularly entered, and without authority of court placed there, motion was made by defendants in error for an order vacating the same. The court, Chief Justice Mason, presiding, granted the order, which was excepted to, and to reverse which the case is brought to this court.

This was a petition in error brought to reverse a judgment of the district court of Douglas county. Upon the trial of the cause in that court, a verdict being given in favor of the plaintiff and against the defendant, motion for a new trial was filed, but not within the time prescribed by the code. Upon motion of the plaintiff, the motion for a new trial was stricken from the files, and judgment rendered on the verdict.

<p>Mechanic’s Lien: parties. A person who has sold and assigned all his interest in premises upon which there is a mechanic’s lien, is not a necessary party to a petition for foreclosure.</p> <p>-: REQUISITES OF NOTICE. Although the statute (P. S., 1866, Chap. XXXV) requires that where work is done upon written contract, the lienor shall file “ the same or a copy thereof,” with the statement of work, done and material furnished, yet if he is prevented from so doing by the wrongful act of the party for whom the labor is performed, he will not thereby lose his lien. And semble, parol evidence of the contents o£ such contract would be admissible. Per MASON, Ch. J.</p> <p>—. A husband, with the knowledge and consent of his wife, entered into a contract for the erection of a dwelling house upon her separate estate. The wife assisted in the giving of instructions to the workmen as to the manner in which the work should be done. Held:</p> <p>1. That the husband acted as the agent of the wife in entering into such contract.</p> <p>2. That the building and lot upon which it was situated, were subject to the mechanic’s lien for the value of 'his labor, and cost of the material furnished.</p>

<p>Practice : appeals. Since the passage of the act of 1867, abolishing distinctions between actions at law and suits in equity, and repealing Title 24 of the Code of 1866, entitled “ Chancery,” no appeal lies to the supreme court. The only remedy for obtaining a review of judgments rendered in the district court, whether in actions legal or equitable, is by petition in error.b</p> <p>-: -. The general course of legislation upon the subject of “Appeals,” considered and reviewed by CROUNSE, J.</p>

This was an appeal from a judgment of the district court for Lancaster county. The cause was tried, and decision rendered at the July term, 1872. A statement of the case and opinion by Mason, Ch. J., appears in 2 Neb, 119. The following opinion of Mr. Justice Crounse, was, however, overlooked in the publication of that volume.

• The House of Representatives, during its session in 1871, having prepared articles of impeachment against David Butler, Governor, by resolution submitted the quaere to this court, then in session, whether the impeachment of the Governor suspended him from office during his trial.