Volume 52 — Nebraska Reports

<p>Appeal from the district court of Douglas county. Heard below before Keysor, J.</p>

<p>Error from the district court of Box Butte county. Tried below before Bartow, J.</p>

<p>Error from the district court of Lancaster county. Tried below before Tibbets, J.</p>

<p>Error from the district court of Hamilton county. Tried below before Bates, J.</p>

<p>1. Unauthenticated Bill of Exceptions. A bill of exceptions must, in order to become a part of the record in this court, be authenticated by the certificate of the clerk of the district court.</p> <p>2. Instructions: Repetitions. It is not error to refuse instructions requested when given in substantially the same language by the court on its own motion.</p> <p>3. -: Exceptions: Review. Error cannot in this court be predicated upon the giving or refusing of instructions to which no exception was taken in the trial court.</p>

<p>1. Carriers: Contract oe Shipment: Damages: Evidence. Evidence examined, and held to warrant the finding that the contract of shipment sued on was executed by authority of the defendant, a railroad company.</p> <p>2. New Trial: Newly-Discovered Evidence. It is not error to refuse a new trial upon the motion of the defendant, a railroad company, alleging newly-discovered evidence material to the issues, where the facts disclosed by affidavits accompanying such motion are within the knowledge of the defendant’s servants who testified in its behalf on the trial.</p>

<p>1. Subrogation. The right of subrogation does not exist in favor of the holder of a second mortgage to the prejudice of the paramount lien.</p> <p>2. -: Mortgages: Payment by Junior Mortgagee. A second mortgagee, who, for the protection of his own security, pays an installment due on the first mortgage, will, to the extent of such advancement, as against the mortgagor, be subrogated to the rights of the holder of the first mortgage, and may, upon payment by the mortgagor of the balance due on the prior mortgage, enforce by action his lien for the amount so advanced.</p>

<p>Error from the district court of Lancaster county. Tried below before Tibbets, J.</p>

<p>1. State Printing: Contracts. That part of section 2, chapter 68, Compiled Statutes, in which is stated, “The printing and binding of reports of state officers, authorized by law to be printed, and all other reports and documents ordered by the legislature, except such as enter into and form a part of the journals, shall be let in another contract,” held to require that the designated work be done under a single contract; and the state printing board cannot sever the contract for such work and award portions of it to one bidder and other portions to other bidders.</p> <p>2. -: -: Bidders. There is a necessary implication in the law in regard to state printing that the contracts be awarded to the lowest competent bidders.</p> <p>3. -:-: -. Where the statute provides that there be an advertisement for proposals or competitive bids for the doing of public work and the awarding of the contracts pursuant to such bids, the object being to secure the work to be performed as economically as may be, and the statute contains a statement that if the first party to whom thfe contract is awarded fails to perfect the contract, the work may be let to the next lowest bidder, it requires, though not expressed directly, that the contract be awarded and let to the lowest bidder, unless the statute vests, or by reason of the nature of the work there rests, a discretion in the officer or board authorized to let the contract.</p> <p>4. -: -: Rejection of Bids. A provision in the statute or a reservation in the advertisement of the right of the officer or board in the consideration of bids, to reject any or all of them, does not confer a power to be exercised arbitrarily or without cause in the rejection of a bid or bids.</p> <p>5. -: -: -. Where the law requires that specifically designated items of work shall be let as a whole or in a single contract, the fact that an officer or board, charged with the duty of awarding such contract to the lowest bidder therefor, attempts to sever the contract and to let portions of it to several parties respectively, does not work a rejection of any or all the bids, as such action is wholly unauthorized.</p> <p>6. Res Judicata: Pleading. If to a petition or pleading in an action a general demurrer is interposed, and the pleading is determined defective for the want of a material allegation, and a judgment follows, and in a second suit the material averment which the pleading in the first suit lacked, is supplied, constituting the pleading sufficient as a statement of a cause of action, the judgment in the first case is not a bar to the second suit, though both were instituted to obtain the enforcement of the same right.</p>

<p>Municipal Corporations: Grade of Street: Damages. A party who purchases a lot which abuts on a street, the grade of which has been established, must improve the lot conformably to the established grade and not with reference to the natural grade, and if he does the latter, cannot recover for damages to the improvements caused by the street being worked to the established grade,</p>

<p>Review: Temporary Injunction: Dissolution: Pinal Order. An order dissolving a temporary injunction, and which does not determine or make some final disposition of the case in which the injunction was issued, is not final, and is not alone, or until after a final judgment in the action, reviewable on error or appeal to this court.</p>

<p>Error from the district court of Douglas county. Tried below before Kexsor, J.</p>

<p>1. Railroad Companies: Approaches to Stations: Negligence. It is , the duty of a railway company to provide and keep approaches to its platforms at its depots where, from the manner of construction of the platforms, approaches are necessary, which are reasonably convenient and safe for the passage of the public to or from the depot for, or in the transaction of business with, the company.</p> <p>2. -: Negligence: Question eoe Juey. Tlie questions of the negligence of a defendant in an action, or of contributory negligence of the plaintiff, where not conclusively established by the evidence, must be submitted to the jury for determination.</p> <p>3. -: -: Personal Injuries: Proximate Cause. The question of what was the proximate cause of an injury is generally a question of fact to be settled by the jury.</p> <p>4. -: -: -: -. Where there are several agencies or causes of an injury, the question is, which was the efficient, dominant cause?</p> <p>5. Trial: Exclusion oe Evidence: Review. Alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect, had been, or was afterwards, allowed to be given by the witness.</p> <p>6. -: -. It is not error to exclude testimony for the introduction of which no proper foundation has been laid.</p>

<p>Appeal from the district court of York county. Heard below before Bates, J.</p>

<p>1. Deceit: Rescission oe Contract: Pleading and Proof. Where rescission of a contract is sought on the ground of deceit, the one injured must allege and prove that he relied upon the false representations of the other party.</p> <p>2. - — :--: -. Held, The petition states a cause of action.</p> <p>3. Review: Conflicting Evidence. This court will not disturb findings made upon conflicting evidence.</p>

<p>1. Garnishment: Fees oe Garnishee. By section 221 of the Code of Civil Procedure a garnishee is not required to appear and answer until he is tendered the same fees as the law allows a witness in the suit in which the garrivhment proceedings are had.</p> <p>2. -: -: Failure to Appear. A garnishee is not liable for a failure to appear and answer where the requisite amount of fees has not been tendered him.</p> <p>3. -: Liability oe Garnishee. A garnishee cannot be charged as the debtor of the defendant unless it appears affirmatively that at the time he was garnished a cause of action existed against him, and in favor of the defendant, for the recovery of a legal debt due, or to btcorne due by the efflux of time. Hditey v. Willis, 23 Neb., 56, followed.</p>

<p>1. Criminal Conversation: Evidence. In an action for damages for criminal intercourse with plaintiff’s wife, the petition may lay the time of the alleged wrongful act with a continuando, and the evidence may he directed to any time within that covered hy the petition, and within the period of the statute of limitations.</p> <p>2. -: Pleading. Held, No abuse of discretion in denying defendant’s motion to require the plaintiff to state in his petition the times and places of the committing of the alleged acts of adultery with more particularity.</p> <p>3. -: -. Held, That the petition stated a cause of action for criminal conversation.</p> <p>4. Jurors: Challenges: Harmless Error. The improper excusing of a juror for cause will not work a reversal, where the complaining party has not availed himself of all of his peremptory challenges.</p> <p>5. Criminal Conversation: Witnesses: Husband and Wide. In an action for criminal conversation in this state the plaintiff’s wife is a competent witness in his behalf.</p> <p>6. -: Damages: Husband and Wiee. Cohabitation by the husband with the wife after knowledge of her infidelity will not defeat an action against her seducer for damages.</p> <p>7. Instructions. Instructions stating the law correctly as a whole, held sufficient, though one or more of them, taken separately, may not have been accurate.</p> <p>8. Criminal Conversation; Damages. In an action of this character, a plaintiff may recover, aside from the loss of services of the wife, for mental anguish, mortification, injured feelings, and disgrace he has sustained in consequence of the acts of the defendant.</p> <p>9. --: Instructions: Evidence. It is not error to refuse an instruction which informs the jury that certain facts are entitled to great weight.</p> <p>10. -: Damages. Evidence held to sustain the verdict, and that the damages assessed at $3,000 are not excessive.</p>

<p>Error from the district court of Douglas county. Tried below before Scott, J.</p>

<p>Error from the district court of Douglas county. Tried below before Blair, J.</p>

<p>Error from the district court of Adams county. Tried below before Beall, J.</p>

<p>Appeal from the district court of Douglas county. Heard below before Walton, J.</p>

<p>Review: Abstract. In a ease submitted under rule 2, under an agreed printed abstract, this court will not look beyond tbe abstract; and to entitle the complaining party to a review of the judgment sought to be reversed the stipulation which identifies the record must show the rendition of a final judgment.</p>

<p>Review: Stteeiciency oe Evidence. This case having been tried as a purely equitable action there is found no question presented by the petition in error except the sufficiency of the evidence to sustain the judgment, and this coffiention is found unsustained by the record.</p>

<p>Appeal from the district court of Douglas county. Heard below before Ambrose, J.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Hall, J.</p>

<p>Appeal from tbe district court of Buffalo county. Heard, below before Holcomb, J.</p>

<p>Error from the district court of Hall county. Tried below before Thompson, J.</p>

<p>Foreclosure of Tax Lien: Limitation oe Action. An action for the foreclosure of a tax lien cannot be maintained after the lapse of more than nine years from the date of the tax sale by virtue of which such lien is claimed to have originated.</p>

<p>1. Landlord and Tenant: Adverse Possession. One who takes possession of real estate as the tenant of another cannot hold, said real estate adversely to his lessor without first having actually or constructively surrendered the premises to him.</p> <p>2. —--: -: Attornment. Where a tenant in possession without his landlord’s consent attorns to a third party, — the latter not having acquired the interest of the landlord in the real estate either by grant or operation of law, — the possessory rights of the landlord are not thereby affected as such an attornment is void.</p> <p>3. Vendor and Vendee: Foreeiture oe Contract: Right oe Possession: Injunction. The vendee of an executory contract for the sale of real estate, by virtue of such contract, entered into possession, made certain improvements upon the premises, and partly performed his contract of purchase. Afterwards the vendee, while in default of the performance of his part of the contract of purchase, leased the premises to a tenant for one year and put him in possession. The vendor, by reason of the default of the vendee, and in pursuance of the provisions of the contract of sale, declared the same forfeited arid demanded possession of the premises from the vendee. The possession was not surrendered and thereupon the vendor went upon the premises and induced the tenant, without the vendee’s knowledge or consent, to accept a lease from him, the vendor, for said premises. The vendee forcibly entered and removed part of the crops grown by his tenant, and threatened to enter and remove the remainder, and the vendor applied to the district court for a perpetual injunction to restrain the vendee’s entrance upon the premises. Held, That the application was properly denied.</p>

<p>1. Bastardy: Evidence. On the hearing of a bastardy proceeding it is error for the district court to admit evidence of the value of the services rendered by the attorneys of the prosecutrix.</p> <p>2. -: Maintenance. The word “maintenance,” found in section 6, chapter 37, Compiled Statutes, should not be so construed as to include the value of the services of the prosecutrix’s attorneys.</p>

<p>1. Res Judicata: Land Contracts: Foreclosure: Deficiency Judgment. Where suit is brought to foreclose as a mortgage an executory contract for the sale of real estate, decree rendered, real estate sold, and the proceeds applied on the amount found due, then, on the hearing of an application for personal judgment for deficiency against the vendee neither party can relitigate any material issue determined by such decree.</p> <p>2. --: -: -: Issues. In such foreclosure proceeding the execution of the contract, the identity of the real estate described therein, the breach of the same, and the amount remaining due thereon, are material issues determined by the decree.</p> <p>3. -: —: -•• When such a decree is rendered upon the default of the vendee its effect is the same as if he had personally appeared and litigated the issues tendered by the petition.</p> <p>4. -: -: -: Deficiency Judgment. Whether a district court in such foreclosure action, sitting as a court of equity, without further pleadings may render a personal judgment against the parties liable for such deficiency not decided.</p> <p>5. -:--:-■:-. But wh,en a formal petition is filed in such case for a deficiency judgment, the party liable therefor files an answer to such petition, the district court then has jurisdiction; and, unless a jury be demanded, may itself try and determine the issues presented by such pleadings.</p>

<p>1. Evidence: Attestation oe Record of Judicial Sale. Where a material issue on trial is whether certain real estate situate in a sister state has been sold at judicial sale therein, a copy of the return of the sheriff to the execution, showing such sale, is incompetent to prove such issue, unless such return is attested by the clerk and seal of the court to which the return was made, and accompanied by the certificate of a judge, chief justice, or presiding magistrate of said court that such attestation is in due form of law. (Code of Civil Procedure, sec. 414.)</p> <p>2. Directing Verdict. Pleadings and evidence reviewed, and held that the district court correctly directed a verdict for the defendant.</p>

<p>Error from the district court of Douglas county. Tried below before Ogden, J.</p>

<p>1. Depositions: Captions. The caption oí a deposition may be read in connection with the certificate at the end thereof for the purpose of determining whether the deposition discloses that it was taken at the time and place and before the officer mentioned in the notice.</p> <p>2. Alteration of Instruments: Burden op Pbooe. Where the defense to a suit on a promissory note is that the same had been materially altered after its execution and delivery, — the note -itself not disclosing any evidence of such alteration, — the burden of proof is upon the party alleging such alteration to establish the same by a preponderance of the evidence.</p>

<p>1. Ruling on Demurrer: Waiver oe Error. A defendant by answering over waives error in overruling his demurrer to a petition for defect of parties.</p> <p>2. Pleading: Law and Equity. The Code recognizing no distinction of form between actions at law and suits in equity, the objection that a petition praying equitable relief states a case for a legal remedy, cannot be raised by general demurrer.</p> <p>3. -: -: Trusts. A petition which states facts showing that plaintiff is the equitable owner of a judgment in favor of another, and asking that a trust be declared, states a case for equitable relief.</p> <p>4. Negotiable Instruments: Indorsement: Principal and Agent: Res Judicata:- Trusts. The plaintiffs held two notes made by W., who died. On learning of his death they sent to M. one of the notes indorsed to M. “for collection and account” of plaintiffs." They sent a copy of the other note without indorsement. M.’s instructions were to present the notes for allowance as claims against W.’s estate. M., however, presented a claim in his own name, including these two notes, with several other items. The claim had attached thereto a copy of the note bearing the restrictive indorsement. It did not describe the other note in terms. M. then represented to a bank that he had paid a number of claims against W.’s estate which he did not wish longer to carry, and asked the bank to carry them. The bank investigated far enough to learn that M. had presented a claim to the amount he stated, but did not examine the claim itself. It then took a note for the amount of the claims made by the administratrix to M. and indorsed by M. to the bank, and advanced M. the money, none of which was paid to the plaintiffs. Thereafter M.’s claim was allowed and M. assigned the judgment therefor to the hank. In an action hy the plaintiffs to declare a trust in their favor to that portion of the judgment representing their notes, held (1) that the hank was charged with notice of the want of ownership in M.; (2) that M.’s acts and representations in dealing with the hank were not within the scope of his real or apparent authority as agent of plaintiffs; (3) that the allowance of the claim to M. was not an adjudication binding on plaintiffs that M. owned the claims; (4) that plaintiffs were entitled to have a trust declared in their favor as against the hank.</p>

<p>ArPEAL from the district court of Otoe county. Heard below before Chapman, J.</p>

<p>1. Limitation of Actions: Contracts. The period of limitations for an action on a written contract is five years.</p> <p>2. Carriers of Goods: Contracts oe Shipment: Breach: Remedies. One with whom a carrier has made a contract for transporting his goods, may, in case of breach, elect to sue for damages for failure to perform the public duties of a carrier, or he may waive the tort and sue for breach of the special contract.</p> <p>3. -: -: Time. A contract of carriage which contains no specified time for performance, implies, as one of its terms, performance within a reasonable time, and an action may be maintained on the contract for unreasonable delay in performance.</p> <p>4. -: -: -: Pleading. A petition which alleges what is the reasonable and usual time for transporting goods and that the goods were not transported in that time but were unreasonably delayed, states in that respect a cause of action. Justifiable delay beyond the usual and ordinarily reasonable time is matter of defense.</p> <p>5. -: -: Action eor Breach. An action to recover for breach of contract of carriage is not for a liability created by . statute within the meaning of section 11, Code of Civil Procedure, because of the duties imposed on railroad companies by chapter 16, section 111, Compiled Statutes.</p>

<p>1. Appeal from County Court: Bond. The statutes requiring one who appeals from a judgment of the county court to give an undertaking as an essential prerequisite to the appeal, are valid and not in conflict with the constitution.</p> <p>2. -: -. The requirements that such undertaking shall be filed within 10 days from the rendition of judgment and shall be approved by the county judge are mandatory, and the statutes are not satisfied by the tender of a bond in the district court at a later time.</p>

<p>1. Allegata et Probata: Review. A verdict will be set aside when not based on any evidence directed to the issues presented by the pleadings and submitted to the jury by the instructions. Allegata et probata must agree.</p> <p>2. Trial: Issues: Evidence. The rule that parties who voluntarily submit to the introduction of irrelevant testimony and accept a verdict thereon, are precluded from thereafter urging that the evidence was irrelevant, does not apply to a case where the pleadings and the instructions of the court confined the jury to a consideration of one issue when there was no evidence to support the verdict on that issue, although there was evidence which might have sustained a similar verdict had other questions or different issues been submitted to the jury.</p> <p>3. Deceit: False Representations: Sales. False representations, in order to found an action in the nature of deceit, must not consist merely of promises to be performed in the future, and generally not merely of expressions of opinion by a vendor as to the quality of his goods. They must be representations of fcnown existing facts.</p>

<p>1. Fraudulent Conveyances: Knowledge oe Buyer: Evidence. Evidence examined, and held to sustain a verdict that chattels had been purchased in good faith without notice by the vendee of an intent on the part of the vendors to defraud creditors.</p> <p>2.-: Consideration. In a contest between a vendee and creditors of the vendor, the adequacy of the consideration, if it be a valuable consideration, will not be inquired into except for the purpose of throwing light on the intention of the parties.</p> <p>3.-: -. The relinquishment of a valid entry of land under the timber culture act of congress constitutes a valuable consideration and is not void as against public policy.</p>

<p>Error from the district court of Saunders county. Tried below before Wheeler, J.</p>

<p>Error from the district court of Sarpy county. Tried below before Keysor, J.</p>

<p>1. Levy of Execution. A manual interference witli chattels is not essential to a valid levy thereon. It is sufficient if the property is present and subject for the time being to the control of the officer holding the v/rit, and that he in express terms asserts his dominion over it by virtue of such writ.</p> <p>2. Waiver of Jury. When the record shows that a jury was waived at a preceding term, such waiver will be presumed to be general and not for the particular term at which it was made.</p>

<p>Judgment: Enforcement: Injunction. A party cannot have relief in equity against the enforcement of a law judgment, unless he has matter of defense which was not available in the law action, or had a good defense at law which by fraud or accident, without negligence on his part, he did not present in the law action.</p>

<p>Error from the district court of Lancaster county. Tried below before Hare, J.</p>

<p>Breach of Contract of Sale. Evidence examined, and held that the damages assessed by the jury are inadequate.</p>

<p>1. Bill of Exceptions. An unauthenticated hill of exceptions will not be considered.</p> <p>2. Contracts: Consteuotion. A practical construction placed upon an ambiguous contract by the parties will generally be adopted by the courts.</p> <p>3. -: Beeach. One who refuses to perform his part of a contract cannot recover for a breach by the other party.</p>

<p>Transcript for Review: Dismissal. A petition in error will be dismissed unless the transcript contains a copy of the judgment or final order sought to be reviewed, authenticated by the certificate of the clerk of the trial court.</p>

<p>Error from the district court of Douglas county. Tried below before Ambrose, J.</p>

<p>Error from the district court of Dawes county. Tried below before Kinkaid, J.</p>

<p>1. Review: Final Orders. This court’s appellate jurisdiction in error proceedings is limited to final orders and judgments made by the district courts.</p> <p>2. -: -. An order was made setting aside a verdict. After the term at which this was done.a motion was filed to vacate said order. The record brought here recites: “The court finds that the order granting a new trial was made contrary to, and in violation of, the rules of this court, * * * was prejudicial error, and erroneously granted, * * * and the court would set aside ■ said order granting said new trial had this court jurisdiction to do so.” Held, Not a final order.</p>

<p>1. Review: Disregard oe Instructions. It clearly appearing that the verdict in this case was rendered in disregard of the instructions and evidence, the judgment is reversed.</p> <p>2. Personal Injuries: Verdict Against Master: Evidence: Review: In a personal injury case by a servant against a master, the evidence without contradiction disclosing that the injury was sustained by reason of the negligence of another servant of the same master, there being no other evidence as to the relations existing ' between the two servants, and the jury having answered, “We don’t know,” to a special interrogatory as to whether they were fellow servants, held, that the general verdict in favor of the plaintiff was not sustained by the evidence.</p>

<p>1. Damages for Breach of Contract: Mechanics’ Liens. In the case of a building contract, where the owner has wrongfully interrupted the contractor and prevented his completing the work, the contractor is entitled to a lien for the reasonable value of the labor he has performed and material he has furnished, but he cannot have a lien for the damages sustained from the breach of the contract.</p> <p>2. Mechanics’ Liens: Statute oe Limitations. One contracting directly with the owner may file his claim of lien at any time within four months of the time of the performance of the labor or furnishing of the material.</p> <p>3. -: -. The statute of limitations begins to run against a mechanic’s lien from the time of filing the claim of lien.</p>

<p>1. Judicial Sales: Distribution of Proceeds. A purchaser at a judicial sale who, instead of paying the amount of his bid to the officer making the sale, undertakes to himself disburse it in discharging liens, does so at his peril.</p> <p>2.--: Title of Purchaser: Liens. The title of the purchaser, where there is an appeal from the order of confirmation, relates back on affirmance at least as far as that order, and he may not deduct from the amount of his bid sums which he has paid on account of taxes becoming liens on the property, and interest accruing on a senior mortgage subject to which he bought, between the time of confirmation and the time of affirmance or dismissal of appeal.</p> <p>3. -: Distribution of Proceeds: Parties. The holder of a lien not made a party to a foreclosure case has no standing by intervention on motion for distribution to ask to have the purchase money applied to the satisfaction of his lien.</p> <p>4. -:--. A motion for distribution should properly be made after the fund comes into the hands of the officer making the sale or after it is paid into court, if such be the order. If made earlier the court may refuse to entertain it, but if overruled on the ground that it is premature, the order should be without prejudice to a later application.</p>

Original action in tbe nature of quo warranto to oust respondents from tbe offices of councilmen of tbe city of Ornaba, and to instate relators therein. Tbe opinion contains a statement of tbe case.

<p>Original action in the nature of quo warranto to oust respondents from the offices of members of the excise board of the city of Lincoln.</p>

Original action in the nature of quo warranto to oust respondents from the offices of councilmen of the city of Lincoln, and to instate relators therein.

<p>1. Counties: Taxation: Limitation. The meaning'of section 5, article 9, of the constitution is that county authorities, except for the special reasons mentioned in said section, shall never assess taxes for county purposes in excess of 15 mills upon the dollar.</p> <p>2.-: Townships: Taxation. A township in a county under township organization is an independent corporate entity, — a municipal corporation, — within the meaning of section 6, article 9, of the constitution, its existence authorized by that instrument and clothed by law with power to assess taxes upon property within its jurisdiction for such purposes as the legislature has declared to be township purposes.</p> <p>3. --i-:-. What is a township purpose, and what taxes may be assessed therefor, and by whom assessed, are matters for determination by the legislature.</p> <p>4. Taxation: Assessment and Levy. To assess a tax is to adjudge and determine what proportion of his property the taxpayer shall contribute to the public. To levy a tax is to make a record of this determination and to extend the assessment against the taxpayer’s property.</p> <p>5. -: -: Counties. In counties under township organization the hoard of supervisors may assess taxes upon all taxable property in the county for county purposes, and the electors of the township in which such property is situate may also assess such property for township purposes; and although the aggregate taxes so assessed exceed 15 mills on the dollar, such excess is not void for that reason, although the taxes so assessed were not for the payment of a debt existing at the adoption of the constitution of 1875, nor for a purpose authorized by a vote of the people of such county.</p>

<p>1. Principal and Agent. One who, as agent, assumes to represent a principal who has no legal existence or status, is himself liable.</p> <p>2. Statute of Frauds: Original Promise to Pay por Improvements. . Held, That the contract declared on is not a conditional one to answer for the debt of another, but an original undertaking.</p> <p>3. Improvement of Highway: Action por Labor and Materials: Judgment eor Plaintiee. Damages held not excessive.</p> <p>4. Principal and Agent: Evidence oe Agency. Evidence examined, and held, not to sustain the verdict as to the defendant Kyner.</p>

<p>Error from the district court of Douglas county. Tried below before Blair, J.</p>

<p>1. Taxation: Action for Wrongful Sale of Realty: Parties. An action against a comity treasurer and Ms sureties for the wrongful sale of property for taxes is properly brought in the name of the person to whom the certificates of tax sale and treasurer’s deed were issued and the money invested belonged.</p> <p>2. Parties: Transfer of Plaintiff’s Interest. Where the interest of a plaintiff is transferred to another during the pendency of the cause, the suit may be prosecuted to its termination in the name of the original plaintiff, or the transferee may he substituted as plaintiff.</p>

<p>Error from the district court of Colfax county. Tried below before Sullivan, J.</p>

<p>1. Instructions: Assignments op Error. Errors in respect to giving instructions must he separately assigned.</p> <p>2. Review: Assignments op Error. An assignment that the court erred in overruling a motion for a new trial, when such motion is based upon several distinct grounds, is too general.</p> <p>3. -: Waiver. Assignments of error not argued will not he reviewed.</p>

<p>1. Dower: Procedure. Where the right of dower of a widow is not disputed, it may be assigned by the county court, under the provisions of sections 8-11, chapter 23, Compiled Statutes. If such a right is disputed, it may be established by a decree of the district court.</p> <p>2. Foreign Laws: Evidence: Divorce. Proof of the law of Colorado, in evidence, relating to the jurisdiction of county courts of that state to decree divorces, examined, and held not to satisfactorily establish, such jurisdiction.</p> <p>3. Judgments: Findings. The findings of facts and the judgment must conform to, and be supported by, the allegations of the pleadings on which they were based.</p>

<p>1. Municipal Corporations: Ponds: Negligence. With respect to water forming a pond on private property within the limits of a city, hut not on, or in dangerous proximity to, a public highway, street, or alley, such city owes no duty to the general public (aside from that of a sanitary character) other than such as devolves on private owners of property similarly situated, even though the city may have created the pond of which complaint is made.</p> <p>2. Negligence: Evidence. Negligence must be fairly inferable from tbe evidence. Its existence cannot be a mere matter of conjecture, and it must be tbe proximate cause of tbe injury complained of.</p> <p>3. Cities: Ponds: Death oe Child: Evidence. Instructions wbicb assumed that evidence of sucb overflow of lots by tbe massing tbereon by a city of tbe water of a running stream as would entitle tbe lot owners to damages would be proper proof in support of a claim for compensation for personal injury to one wbo bad no interest in tbe lot itself, held erroneous.</p>

<p>Error, from the district court of Holt county. Tried below before Kinkaxd, J.</p>

<p>Bill of Exceptions: Allowance by Referee. In the course of a trial before a referee only the referee bas tbe power to certify as to exceptions; and a bill of exceptions embodying only such, matters, if settled and signed by tbe cleric of tbe district court alone, is entirely nugatory.</p>

<p>Error from tbe district court of Gage county. Tried below before Bush, J.</p>

<p>Review: Assignments op Error. An assignment in a petition in error “errors of law occurring at the trial” presents nothing to this court for review.</p>

<p>Error from the district court of Douglas county. Tried below before Ferguson, J.</p>

<p>Vendor and Vendee: Breach of Contract: Damages. (See Seaver v. . Ball, 50 Neb., 878.)</p>

<p>Error from tbe district court of Lancaster county. Tried below before Tibbets, J.</p>

Error from the district court of Adams county. Tried below before Beall, J. The opinion contains a statement of the case. The court erred in mailing the order of reference and in denying plaintiff the right to a trial by jury. (Constitution, art. 1, sec. 6; Mills v. Miller, 3 Neb., 94; Lamaster v. Scofield, 5 Neb., 154; Kvnkade v. Hiatt, 24 Neb., 562; Cornell v. Illuminating Co., 16 N. Y. Sup., 306; Andrus v. Home Fire Ins.

<p>Appeal from the district court of Gage county. Heard below before Bush, J.</p>

<p>1. Replevin:. Action on Bond: Pleading: Attachment. The condition of a replevin bond is that the plaintiff in replevin shall comply with the judgment; and, in replevin against an officer who justifies under writs of attachment, it is necessary for the officer to prove the debt and the regularity of the proceedings. Therefore, after judgment for the defendant, it is unnecessary in a suit on the replevin bond for the officer to plead those facts. It is sufficient to plead the replevin judgment.</p> <p>2. Principal and Surety: Failure to Sue Principal. Mere forbearance by a creditor to sue a principal will not release the latter’s sureties; and this is true although by lapse of time remedies may be lost against the principal.</p> <p>3. Replevin: Judgment: Return oe Property. A plaintiff in replevin against whom judgment has been rendered, must, in order to satisfy the judgment for a return of the property, return or offer to return the identical property replevied and not other property of like kind and value.</p> <p>4. -: Return oe Property: Instructions. "Where property replevied was of such a character that an actual manual delivery thereof was impracticable, and a return could be had only constructively or by surrendering possession of the place where the property was situated, it was not error to instruct the jury, the fact of an offer to return being in issue, that they should inquire whether that offer had been made in good faith.</p> <p>5. -: -: Execution. A plaintiff in replevin against whom judgment has been rendered owes the affirmative duty of returning the property, and, if he fail so to do, the defendant may proceed to enforce the alternative judgment by an ordinary execution. The execution need not be in the alternative.</p> <p>6. -: Sueeiciency oe Bond. A replevin bond was entitled as of the ease, naming parties plaintiff and defendant. It recited the institution of the action, again naming the parties, and further recited that one B., as coroner, had seized the property under the writ. It named the obligee as follows: “We, * * 111 , undertake to the said B., defendant in said action.” Held, That the insertion of B.’s name as obligee was merely surplusage and could be rejected, leaving a sufficient bond manifestly running to the defendant.</p> <p>7. Instructions: Exceptions: Review. A judgment will not be reversed because the court failed to mark on the margin of instructions the word “given,” or “refused,” where the defeated party himself noted on the margin an exception to the giving or refusal of the instruction as the case might be, although such exception was accompanied by a special exception to the failure of the court to so mark it.</p> <p>8. New Trial: Misconduct oe Counsel. Certain questions of evidence and practice, resting on no new principle, set forth in the opinion and held, not to have been erroneously decided below.</p>

<p>1. Guaranty: Release oe Guarantor. A creditor -who, by his voluntary act parts with security for the debt, thereby, to the extent of the value of such security, releases a surety or guarantor.</p> <p>2. -: -. . Case distinguished from that of mere forbearance to sue.</p>

<p>Appeal from the district court of Douglas county. Heard below before Walton, J.</p>

<p>Error to the district court for Sheridan county. Tried below before Kinkaid, J.</p>

<p>Error from the district court of Sarpy county. Tried below before Keysor, J.</p>

<p>1. Subscriptions: Pleading: State Fair: Board oe Agriculture. In an action by an association on a subscription in its favor which stated that it was made for the purpose of securing the state fair to be located at a designated place, a general denial did not put in issue the corporate existence of the State Board of Agriculture, the body by which such location was fixed.</p> <p>2. -: -: Issues. Held, Further, that the answer did not present an issue of any illegality of the subscription as being for the purpose of aiding in improperly influencing the decision of the State Board of Agriculture in designating the place for holding a fair.</p>

<p>1. ’ Review: Conflicting Evidence. If tlie evidence is conflicting, a finding or decree thereon will toe affirmed unless clearly wrong.</p> <p>2. Executions: Appraisement. It is the duty of an officer making a sale of real estate under execution or order of sale to deposit in the office of the clerk of the court from which the writ issued a copy of the appraisement of the property and other papers as required by section 491(i of the Code of Civil Procedure, and such duty must toe performed prior to the advertisement of the sale. (Burkett v. ■ Clark, 46 Neto., 466.)</p>

Error from the district court of Lancaster county. Tred below before Strode, J. The opinion contains a statement of the case. A purchaser of goods from a debtor, knowing or chargeable with notice of the debtor’s fraudulent intent, is not a purchaser in good faith, and such a sale is void as to creditors. (Bolivian v. Lucas, 22 Neb., 813; Temple v. Smith, 13 Neb., 513; Jones v. Loree, 37 Neb., 816; Beidler v. Crane, 22 111.

<p>Municipal Corporations: Water Commissioner: Removal oe Employes. The water commissioner of the city of Lincoln has not the power to remove a subordinate employe in the water department of the city, or to make appointments to fill .vacancies occurring therein.</p>

■Error, to-the district court for Keith county. Tried below before Grimes, J. The facts are stated in the opinion.

<p>Error from the district court of Douglas county. Tried below before Ambrose, J.</p>

<p>Error from the district court of Cedar county. Tried below before Norris, J.</p>

<p>Error from the district court of Sheridan county. Tried below before Kinkaid, J.</p>

<p>Appeal from tbe district court of Douglas county. Heard below before Walton, J.</p>

<p>Appeal from the district court of Douglas county. Heard below before Eergtjson, J.</p>

<p>Error from the district court of Sarpy county. Tried below before Keysor, J.</p>

<p>Payment of Mortgage: Evidence: Agency. In an action to foreclose a mortgage, the defense being payment, evidence examined and held insufficient to establish authority, or ostensible authority, in a third person, to whom the money was paid, to act for the holder of the note and mortgage in that behalf.</p>

<p>1. Review: Election of Remedies. When a ease is in its nature appealable and the party seeking a review flies in connection with the transcript a petition in error, he will he deemed to have elected to proceed in error and not by appeal.</p> <p>2. Record for Review. This court will not draw an inference contradictory to the record in order to sustain an assignment of error.</p> <p>3. Foreclosure Sale: Publication of Notice. A notice of a foreclosure sale set for February 21, which was published in a weekly newspaper in five consecutive issues of the- paper, beginning January 19, is a sufficient advertisement under the statute requiring publication for at least thirty days before the day of sale.</p> <p>4. Notice of Foreclosure Sale: Proof of Publication. The affidavit proving, publication may in such case he made immediately after the last publication, even though that he less than thirty days after the first.</p> <p>5. -:--. The word “printed” in the statute requiring the notice to be in some newspaper printed in the county, is used in the sense of “published,” and an affidavit that the newspaper was published in the county is therefore sufficient.</p> <p>6. Judicial Sales: Appraisement. Objections to the appraisement of property for the purpose of a judicial sale should be filed in the trial court prior to the sale.</p>

<p>Error from, the district court of Dodge county. Tried below before Sullivan, J.</p>

<p>Appeal from the district court of Douglas county. Heard below before Ferguson, J.</p>

Heard below before Hastings, J. The opinion contains a statement of the case. The money in the hands of the clerk of the district court being in custodia legis, cannot, in equity, be subjected to payment of plaintiff’s' claim. There was an adequate remedy at law. (Tuck v. Manning, 22 N. E. Rep. [Mass.], 1001; Dubois v. Dubois, 6 Cow. [N. Y.], 496; Hanna v. Bry, 5 La.

<p>Review: Stjeeiciency oe Evidence. There is involved in this case only a question of fact, and the evidence being sufficient to support the finding of the trial court, the judgment is affirmed.</p>

<p>1. Larceny: Venue. Where property is stolen in one county of this state and is talcen by the thief into another, he may be prosecuted ' and convicted in either county.</p> <p>2. -:-: Information. Where goods are stolen in one county and carried into another, it is sufficient to lay the offense in the county of the prosecution without setting out the transaction in ■ the other county.</p> <p>3. Indictment and. Information. Averments in an information of matters which are immaterial, and not necessary ingredients of the offense charged, may be rejected as surplusage.</p> <p>4. -: Counts: Verdict. A general verdict of guilty against a defendant on an indictment consisting of two or more counts which charge a single offense, is sufficient without specifying the count on which the jury find him guilty.</p> <p>5. -: Ei.ection as to Counts. Where an information contains two counts charging one offense, the prosecutor is not obliged to elect upon which count he will rely for a conviction.</p>

<p>1. Burglary: Breaking. It is a familiar principle that a breaking necessary to constitute the crime of burglary may be by any act of physical force, however slight, by which the obstruction to the entering is removed.</p> <p>2. -:--. The lifting of a hook with which a door is fastened, or the opening of a closed door in order to enter a building, is a “breaking” within the accepted definition of burglary, although the entry might have been effected through a door already open.</p> <p>3. Instructions: Harmless Error. A slight error in an instruction will not work a reversal where it is evident that the party complying could not have been prejudiced thereby.</p> <p>4. Burglary:' Time: Information. Proof that the burglary was committed on the precise day laid in the information is not essential to a conviction. It is sufficient if it be proved that the crime was committed within the period limited by statute for the prosecution of the offense.</p> <p>5. -: -. Instructions. In a prosecution for burglary it is not error to instruct the jury that it is sufficient to find that the crime was committed “on or about” the date charged in the information, or a,t any date within the statute of limitations.</p> <p>6. -: Instructions. Held, That instruction No. 8 given by the court on its own motion does not assume that a burglary had been committed. Mete v. State, 46 Neb., 547, distinguished.</p> <p>7. Reasonable Doubt: Instructions. An instruction which defined a reasonable doubt as being an actual, substantial doubt of guilt arising from the evidence or want of evidence in the case, upheld.</p> <p>8. Instructions: Failure to Request. One cannot predicate error upon a vague instruction unless he has requested a proper one.</p> <p>9. Criminal Law: Failure of Accused to Testify: Instructions. Where, in a criminal prosecution, a defendant does not testify in his own behalf, it is not reversible error for the trial court to mention such neglect or omission in its instructions, when followed in the same connection with the direction that “nothing must be taken against him because he had not so testified.”</p> <p>10. Alibi: Failure to Request Instruction. It is not’ reversible error to fail to instruct on the subject of an alibi, where no request to charge upon that feature of the case has been tendered.</p>

<p>Error from the district court of Richardson county. Tried below before Babcock, J.</p>

<p>Error from the district court of Gage county. Tried below before Babcock, J.</p>

<p>Error from the district court of Eed Willow county. Tried below before Weltv, J.</p>

<p>Judicial Sale After Payment of Judgment: Confirmation. Where the judgment defendant paid to the clerk of the district court the entire amount necessary to satisfy a judgment which has been rendered by such court, and such payment was so received by said clerk, by whom, however, no discharge of judgment was entered, held, that of the sheriff’s sale subsequently mad© to the judgment plaintiff by virtue of said judgment as though unpaid, confirmation was properly refused.</p>

<p>1. Judgment: Time Lien Attaches: Lien oe Mortgage. A term of a district court began, on the 20th of November, during which a judgment was rendered, not by confession, in an action commenced prior to the beginning of the term. During said term, but before the rendition of the judgment, the judgment debtor mortgaged his real estate. Meld (1) That the lien of the judgment attached against the real estate of the judgment debtor on the 20th day of November; (2) that the lien of the judgment was' prior to the lien of the mortgage, though the latter was filed for record prior to the date of the rendition of the judgment. Norfolk State Bank v. Murphy, 40 Neb., 735, followed.</p> <p>2. -: -: -: Subrogation. Such judgment was a lien upon lands not covered by the mortgage, and the judgment creditor, with notice of the existence of the mortgage, released from the lien of his judgment lands not covered by the mortgage of value sufficient to satisfy his judgment. At no time prior to the judgment creditor’s releasing the lands from the lien of his judgment was he notified by the mortgagee that he would be required or expected to collect his judgment from the lands of the debtor upon which the mortgage was not a lien. Held, That the mortgagee was not entitled to be subrogated to the first lien of the judgment creditor against the land covered by the mortgage.</p>

<p>Error from the district court of Lancaster county. Tried below before Tibbets, J.</p>

<p>Error from the district court of Douglas county. Tried below before Ambrose, J..</p>

<p>1. Attachment: Motion to Dissolve. One made defendant to an attachment proceeding may move to discharge the same from the whole or any part of the property, notwithstanding the fact that he had disposed of his entire interest in such property prior to its seizure.</p> <p>2.--: -: Estoppel. An attaching plaintiff is estopped to assert that the defendant has not sufficient interest to defend against the attachment. McCord v. Bowen, 51 Neb., 247, followed.</p> <p>3. --: ———: Oral Evidence. Section 236, Code of Civil Procedure, does not confer on an attaching plaintiff the right to resist a motion to discharge the attachment by oral evidence. Nob- . val, J., dissents.</p> <p>4.----: -:--. Whether oral evidence shall be used on the hearing of a motion to discharge an attachment is a matter renting in the discretion of the court trying such proceeding. Non-val, J., dissents.</p> <p>5.---: -: -. Evidence examined and held to support the order of the district court discharging the attachment.</p>

<p>Error from the district court of Greeley county. Tried below before Kendall, J.</p>

<p>Bill of Exceptions: Omission oe Evidence: Review. Where it appears from an inspection of the bill of exceptions that material evidence has been omitted therefrom, the bill of exceptions will not be considered for the purpose of determining whether the verdict is sustained by the evidence.</p>

<p>1. Breach of Contract to Sell Notes: Damages: Evidence. In an action for damages for breach by the vendor of a contract to sell promissory notes of a third person, it is not permissible to prove declarations of a stranger as to what he would be willing to give for the notes, such evidence not tending to prove value.</p> <p>2. Action for Breach of Contract: Consideration: Remedies. In an action against the vendor for breach of contract to deliver, there is no distinction in principle as to whether or not the consideration has been paid. The vendee may, at his election, recover back the purchase price as for money had and received; but, if he sue for breach of contract, he is restricted in his recovery to the value of the thing bought at the time when and the place where it should have been delivered.</p>

<p>Error from tbe district court of Holt county. Tried. below before Bartow, J.</p>

<p>Appeal from the district court of Cass county. Heard below before Chapman, J.</p>

<p>Error from the district court of Seward county. Tried below before Wheeler, J.</p>

<p>Error from the district court of Chase county. - Tried below before Welty, J.</p>

<p>Review: Stjeeiciency oe Evidence. A finding of a trial court which, is unsupported by the evidence is manifestly wrong, and a judgment based thereon will be reversed.</p>

Error from the district court of Lancaster county. Tried below before Tibbets, J. The opinion contains a statement of the case. Under the execution sale all the title of mortgagors was conveyed to plaintiff in error. (Code, secs. 499, 500; Reynolds v. Cobb, 15 Neb., 381; Lamb v. Sherman, 19 Neb., 684.) Mortgagors could not assign any better right than they possessed.

<p>Error from the district court for Johnson county. Tried below before Stull, J.</p>

<p>Error from the district court of Lincoln county. Tried below before Neville, J.</p>

<p>Review: Unatjthenticated Transcript: Dismissal. This court" does not acquire jurisdiction of a cause brought here on appeal or error, where the transcript of the judgment, or final order sought to be reviewed, has not been properly authenticated by the clerlt of the district court.</p>

<p>Review: TJnatjtiienticated Transcript: Dismissal. The judgment sought to be reversed not having been authenticated by the certificate of the clerk of the district court, the proceeding in error is dismissed.</p>

Original action in the nature of quo warranto by the state on relation of the attorney general tO' oust respondents from offices to which they were appointed under the provisions of chapter 25, Session Laws of 1897, entitled “An act to create a municipal court in cities of the metropolitan class, and to fix and define the organization, powers, and jurisdiction of the same.” Act held unconstitutional and writ of ouster awarded.

<p>Error to the district court for Sheridan county. Tried below before Westover, J.</p>

<p>Error-from the district court of Adams county. Tried below before Beall, J.</p>

<p>Error from the district court of Lancaster county. Tried below before Strode, J..</p>

<p>Error from the district court of Seward county. Tried below before Bates, J.</p>

<p>Error from the district court of Dawes county. Tried below before Kinkaid, J.</p>

<p>1. Bill of Exceptions: Allowance by County Judge: Review. In 1894 a county judge bad no jurisdiction to settle a bill of exceptions preserving the evidence adduced on the hearing of an objection to the regularity of an appointment by a board of county commissioners of a person to act specially as a county judge.</p> <p>2. -: -: Appointment oe County Judge: Review. Where the sole question presented in the district court was the regularity of the appointment above indicated, the affirmance of the judgment of the county court by such district court must be approved in this court as being the only judgment which the district court could have rendered in view of the impossibility of perpetuating the evidence adduced in the county court upon the question therein presented.</p>

Original application for mandamus to require the clerk of the district court of Douglas county to issue an execution on a judgment.

<p>Appeal from the district court of Cass county. Heard below before Chapman, J.</p>

<p>1. Review: Rulings on Evidence: Assignments oe Error. An assignment in a petition in error, as to the admission or exclusion of testimony, which does not indicate what particular testimony out of a great mass is referred to, is too indefinite for consideration. Bloedel v. Zimmerman, 41 Neb., 695, followed.</p> <p>2. -: -:--. This court will not examine a bill of exceptions for the purpose of ascertaining if the verdict is sustained by sufficient evidence unless that question is specifically assigned in the petition in error. Wiseman v. Ziegler, 41 Neb., 886, followed.</p> <p>3. Process: Amendment oe Sheriee’s Return: Review. The district court has power to permit a sheriff to amend his return on a process to conform to the facts, upon proper showing and notice to the parties interested, and the permitting of such an amendment will not be disturbed by the supreme court when it appears that there has been no abuse of discretion. Shufeldt v. Barlass, 33 Neb., 785, followed.</p> <p>4. Trial: Special Interrogatories: Verdict: Review. Whether special interrogatories shall be submitted to a jury to be answered, in addition to their returning a general verdict, is a matter resting in the sound discretion of the trial court; and unless, from the nature of the case or some other fact, it appears that the court abused its discretion in refusing to submit such special interrogatories, its action will not be disturbed. AtcMson, T. & 8. F. B. Oo. v. Lawler, 40 Neb., 356, followed.</p> <p>5, Instructions: Assignments oe Error. This court will not review the action of a district court in giving or refusing instructions unless such action of the court he specifically assigned in the motion for new trial and as a ground thereof. Graham v. Frazier, 49 Neb., 90, followed.</p> <p>6. -: -: New Tbial. An assignment in a motion for a new trial, “Errors of law occurring at the trial,” does not present to the district court the question of the correctness of its ruling in giving or refusing instructions. Graham v. Frazier, 49 Neb., 90, followed.</p> <p>7. New Trial: Assignments oe Eebok. Where a motion for a new trial contains seven grounds therefor, an assignment that the court erred in overruling such motion is too general for review. Moore v. HuVbard,, 45 Neb., 612, followed.</p>

<p>Error, from the district court of Holt county. Tried below before Kinkaid, J.</p>

Error from the district court of Cass county. Tried below before Chapman, J. The facts are stated by the commissioner. If the goods were on the premises of defendant in error without his consent, and he was injured thereby, his remedy is in tort, and not on contract. (Durrell v. Emory, 9 Atl. Rep. [N. H.], 97; Dixon v. Ahern, 14 Pac. Rep. [Nev.], 598; Lathrop v. Standard Oil Go., 9 S. E. Rep. [Gfa.], 1041; Dcpere Go. v. lieynen, 22 N. W. Rep. [Wis.], 761; United States Mfg.

<p>Error from the district court of Buffalo county. Tried below before Holcomb, J,</p> <p>References: 1 Parsons,Contracts [5th ed.],539; Prairie Farmer Oo. v. Tailor, 69 111., Ml; Butler v. School District, 24 Atl. Rep. [Pa.], 308; Stulls v. Loyal-Eanna Goal & Golee Go., 18 Atl. Rep. [Pa.], 875; Johnson v. MacLain, 43 Am. Dec. [N. Y.], 103; 21 Am. & Eng. Ency. Law, 517; Washington v. Jolvnson, 7 Humph. [Tenn.], 468; Reed v. Randall, 29 N. Y., 363; Gaylords Mfg. Go. v. Allen, 53 N. Y., 515; Dewey v. Erie Borough, 53 Am. Dec. [Pa. St.], 533; Barton v. Kane, 18 Wis., 275; Bootliby v. Scales, 27 Wis., 637; Burton v. Stewart, 20 Am. Dec. [N. Y.], 694; Owens v. Sturgis, 67 111., 267; Yoorhees v. Earl, 2 Hill [N. Y.], 291; Gasey v. Gruman, 4 Hill [N. Y.], 625; Maxwell v. Lee, 34 Minn., 511; Olson v. Mayer, 56 Wis., 555; McCormiclc v. Martin, 32 Neb., 726.</p>

Error from the district court of York county. Tried below before Bates, J. A person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes the contract in his own name, or voluntarily incurs a personal responsibility, either express or implied. (Story, Agency [7th ed.], sec. 269; Hewes v. Andrews, 20 Pac.

<p>Fraudulent Conveyances: Evidence. In a contest between vendees of goods and creditors of the vendor, evidence examined and held insufficient to sustain a verdict that the sale was made in good faith.</p>

<p>Error from the district court of Lincoln county. Tried below before Neville, J.</p>

<p>Error from the district court of Custer county. Tried below before Holcomb, J.</p>

<p>Married Women: Limitation oe Actions. Since the enactment, in 1871, of the Married Woman’s Act, permitting married women to sue in the same manner as if they were unmarried, the statute of limitations runs against women during. coverture, notwithstanding an earlier statute (Code of Civil Procedure, see. 17) in terms allowing to infants, married women, insane persons, and prisoners the general periods of limitation after the removal of such disabilities.</p>

<p>i. Estoppel by Deed. One who in a .representative capacity assumes to sell and convey to another the entire estate in land, is estopped as against the purchaser from asserting an estate in his own right in the same land, and this although the first sale and deed were void.</p> <p>2. -: Quitclaim: Ejectment. A mother died intestate seized of land in which her husband took an estate by the curtesy and her infant son the remainder in fee. The father applied to the district court, falsely alleging that he had been appointed guardian of the son and obtained license to sell the land. In the petition he averred that the land was the son’s and alleged other facts from which an estate in fee in possession was inferable. He sold the land under the license and in the deed recited that he was guardian and recited all the proceedings in such manner as to make them appear valid. The deed purported to convey the whole estate and also the right of “the party of the first part,” to-wit, the father. Thereafter the father executed to the son a deed of quitclaim, and the son on reaching his majority, and during the father’s lifetime, brought ejeciment against the purchaser at guardian’s sale, claiming that such sale was void. Held, (1) That the father was estopped from setting up his life estate against the purchaser; (2) that the estoppel operated equally against his grantee by quitclaim; (3) that ejectment being a possessory action the son’s right of action must be traced through the deed to the current life estate, and not as heir to the remainder, and that the action must therefore fail.</p>

<p>Appeal from the district court of Cass county. Heard below before Cbapman, J.</p>

<p>Error from the district court of Saline county. Tried below before Hastings, J.</p>

<p>Appeal from the district court of Box Butte county. Heard below before Bartow, J.</p>

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p>

<p>1. Sales: Warranty. During the course of a sale of personal property the vendor made statements in letters relative to the qualities and conditions of the property which were positive affirmations of facts and not mere opinions, and which were accepted and relied upon by the vendee in making the contract of purchase of the property. Held, To constitute a warranty.</p> <p>2. -: -: Breach: Damages. All damages in contemplation of the parties to the contract, or which naturally may result from a breach of a warranty, accrue in favor of the party injured by such breach.</p> <p>3.--: -: -: -. What are sometimes denominated “consequential damages” may be recoverable in an action for a breach of a warranty, if they are certain and determinate in nature or amount, or can be rendered so by evidence, and are also directly attributable to the breach of the contract as their cause.</p> <p>4. -: -: Catalogue and Price-List: Evidence. The admission of certain evidence examined and held erroneous.</p>

<p>Appeal from the district court of Dawes county. Heard below before Bartow, J.</p>

<p>Bill of Exceptions: Authentication. “A bill of exceptions in a cause tried in the district court must be authenticated by the certificate of the clerk of such court to entitle it to be considered in the supreme court.” ltoniberg v. ffolclcen, 47 Neb., 198, followed.</p>

<p>1. Replevin: Dismissal. “A plaintiff in an action of replevin, who had obtained possession of the property under the writ, cannot be permitted, without the consent of the defendant, to dismiss the action.” (Garber v. Palmer, 47 Neb., 699.)</p> <p>2. -: - — . In an action of replevin where the property has not been taken under the writ, or if taken has been returned to the defendants by reason of the failure of the plaintiff to furnish the requisite bond, the action “may proceed as one for damages only.” (Code, sec. 193.) It then is in the nature of a personal action, and the plaintiff may dismiss it as any other personal action.</p> <p>3. Procedure on Appeal from Justice of the Peace. “When the proceedings of a justice of the peace are, taken on error to the district court, * * * and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal * * *; and the cause shall be retained by the court for trial and final judgment as in cases of appeal.” (Code, sec. 601.)</p>

Original action in the nature of quo warranto by the state on the relation of A. O. Foster, H. E. Palmer, and Peter W. Birkhauser, to oust the respondents Frank E. Moores, Daniel D. Gregory, William G. Bullard, James H. Peabody, and R. E. Lee Hurdman, from the offices of fire and police commissioners of the city of Omaha. The action was dismissed as to relators Foster and Palmer.

<p>1. Execution: Sheriee’s Return: Time. An execution issued by a county court, or justice of a peace, is returnable thirty days after its receipt by the officer to whom the writ is directed, and the statute is mandatory that the writ must be returned within that time by the officer, stating what he has done under it, whether the property levied upon has been sold or not.</p> <p>2. -: -:-. A sheriff or constable has no authority to act under such an execution after the return day thereof.</p>

<p>1. Municipal Corporations: Negligence: Presentation oe Claim eor Damages. It is solely in actions against a city of tlie second class having more than 5,000 inhabitants, to recover damages resulting from negligence, that the filing with the clerk of such city, the detailed statement required by the provisions of section 34, article 2, chapter 14, Compiled Statutes, is a condition precedent to a recovery.</p> <p>2. -: -: -. Qity of Lincoln v. Grant, 38 Neb., 369; City of Lincoln v. Finióle, 41 Neb., 575, and City of Hastings v. Foxworthy, 45 Neb., 676, distinguished.</p>

<p>1. Adverse Possession: Title to Realty. Ordinarily one who has' been in the actual, open, exclusive, adverse, and uninterrupted possession of real estate for ten years thereby acquires absolute title to the same.</p> <p>2. Ejectment: Adverse Possession: Pleading: Evidence. In an action of ejectment, under an answer denying plaintiff’s title and right of possession to the premises, the defendant may show title in himself by adverse possession.</p>

<p>Error from tbe district court of Dawson county. Tried below before Holcomb, J.</p>

<p>Error from the district court of Frontier county. Tried below before Wblty, J.</p>

<p>Error from the district court of Madison county. Tried below before Robinson, J.</p>

<p>1. Witnesses: Impeachment. A person who calls a witness impliedly recommends him as worthy of belief, and afterwards cannot be permitted to introduce evidence which has no tendency other than to impeach such witness.</p> <p>2. Praudulent Conveyances: Evidence. Where a purchase of an entire stock of goods was made from a merchant at a fair price and with no knowledge that such merchant was indebted to other parties than those whose debts were paid through such purchase, the transfer will not be declared void, though the purpose of the purchaser was, in part, to secure payment of a debt due himself and another debt due a bank of which he was at the time the president and managing officer.</p> <p>3. -: -. The evidence examined and held insufficient to sustain a finding that the transfer to appellant was fraudulent and void as to creditors of the party by whom such transfer had been made.</p>

<p>1. Admission of Evidence: Review: Presumptions. Where the record does not disclose by whom certain evidence was offered or that any one objected thereto, it will not be assumed in the supreme court that such evidence was improperly considered.</p> <p>2. Res Judicata: Evidence. A judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties; but, to this operation of the judgment, it must appear either upon the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in a former suit.</p>

<p>Error from the district court of Hall county. Tried below before Thompson, J.</p>

<p>Error from the district court of Webster county. Tried below before Gaslin, J.</p>

<p>Error from the district court of Lancaster c'ounty. Tried below before Hall, J.</p>

<p>1. Judgment Entry Nunc Pro Tunc: Time: Notice. If, in any proceeding pending in a court, a judgment is actually pronounced or an order actually made, and, if for any reason, such judgment or order is not recorded, then at any time afterward, upon proper notice being given to the parties interested and the facts being shown that such judgment was pronounced or such order made, the court may cause such order or judgment to be spread upon its records as of the date it was pronounced or made. 7an Mten v. Test, 49 Neb., 725, followed.</p> <p>2. -. The provisions of section 609 of the Code of Civil Procedure are not applicable to a motion for an entry nune pro tune of a judgment or order.</p> <p>3.-: Rights oe Third Persons. A party to an action cannot prevent the court from entering nune pro tune the judgment pronounced by it, by showing that some third person, not a party to said suit, has acquired an interest in the property involved in the litigation since the rendition of the judgment which it is sought to have spread upon the records.</p>

<p>1. Pleading: New Matter: Payment. Where a petition declares for a balance due upon a contract and the answer pleads payment, such plea is a material allegation of new matter within the meaning of section 134 of the Code of Civil Procedure.</p> <p>2. -: Redly to New Matter. A reply must be made to all the material allegations of new matter contained in the answer or they will be taken as true.</p> <p>3. -: Payment. Payment is a matter of defense, and, in order to enable a party to prove the same, he must plead it.</p> <p>4. -: Material Allegations. A material allegation is one essential to a claim or defense which cannot be stricken from the pleading without leaving it insufficient. (Code of Civil Procedure, sec. 135.)</p>

<p>Error from the district court of Nemaha county. Tried below before Bush, J.</p>

<p>Appeal from Justice of the Peace: Issues: Judgment: Res Judicata. In a justice court plaintiff’s bill of particulars contained two causes of action. The justice found for the defendant as to the first cause of action, and adjudged that he go hence without day, and against him on the second cause of action, and rendered a judgment against him for $-. The defendant alone appealed to the district court. Isold (1) That the justice of the peace rendered, and could render, but one final judgment in the action; (2) that the appeal brought up the whole case; (S) that an answer which interposed in the district court the finding and judgment of the justice of the peace on such first cause of action as a plea of res jiidioata was a mere nullity.</p>

<p>1. Mechanics’ Liens: Waiver: Contract. Where a contractor agrees in writing with the owner of real estate to furnish the labor and material and erect thereon a building, and in payment for such services to' accept a conveyance from such owner of certain real estate described in said contract, such contractor is not entitled to a lien on the real estate on which he erects the improvement, in the absence of fraud or a failure of the owner to make the conveyance promised.</p> <p>2. --:--: Subcontractors. In such case a subcontractor who has furnished labor or material to the contractor for such improvement cannot assert a lien against the owner’s real estate.</p> <p>3. -: Contracts: Subcontractors. The relationship between a contractor and an owner rests in contract, express or implied, but there ‘is no privity of contract between the subcontractor and the owner.</p> <p>4. -: -: --: Construction oe Statute. Section 2, article 1, chapter 54, Compiled Statutes, construed and held (1) to contemplate a contract between the owner of real estate and the contractor in and by which the former shall pay the latter money for erecting an improvement upon such real estate; (2) that the effect of a subcontractor complying with such statute is to garnish or impound money owing to him from the contractor in the hands of the owner; (3) that the statute then gives the subcontractor a lien to se'cure the payment of the money so garnished; (4) that, to entitle the subcontractor who has complied with the statute to a lien upon the owner’s real estate, the owner must be indebted in money to the contractor and he must be indebted in money to the subcontractor, and unless these two facts exist the subcontractor is not entitled to a lien. . .</p> <p>5. -: --: --. Subcontractors are charged with notice of the terms of the contract existing between the owner and contractor, and when in such agreement the contractor stipulates for payment in something besides money subcontractors íu ¡ sh him labor and material at their peril.</p> <p>6. -:--:-: Liability oe Owner: Garnishment. Though a subcontractor may be entitled to assert a lien against an owner’s real estate, he is not therefore entitled to a personal judgment against the owner for the amount due him from the contractor.</p>

<p>Error from the district court of Lancaster county. Tried below before Harr, J.</p>

<p>1. Hearing Upon Motions: Oral Evidence. It is within the discretion of the district court to take testimony orally for the determination of issues of fact arising upon motions, and not a right of either party to compel the adduction of such testimony. Norval, J., dissents.</p> <p>2. -: —-. Held, that under the facts of this case there was no abuse of discretion in refusing to hear oral testimony.</p> <p>3. Judicial Sales: Deputy Shebiee. A deputy sheriff may act for his principal in making a foreclosure sale. Nebraska Loan & BvXldA/ng Ass’n v. Marshall, 51 Neb., 534, followed.</p> <p>4. -: Appraisement. The failure to obtain certificates and deduct incumbrances in appraising land for the purpose of a foreclosure sale is not prejudicial to tbe defendants, owners of tbe equity. La Flume v. Jones, 5 Neb., 257, followed.</p> <p>5. -: Description oe Land: Notice. Tbe omission of tbe word “north’’ after tbe number of tbe township, in describing land offered for sale under decree of foreclosure, does not invalidate tbe notice of sale, where tbe description is not thereby rendered ambiguous. (Nebraska Land, Stoclc-Growing & Investment Go. v. Cutting, 51 Neb., 647.)</p> <p>6. Foreclosure: Liens: Modieication oe Decree: Appeal. Where liens are improperly decreed to exist, tbe remedy is by modification or vacation of tbe decree or appellate proceedings, and not by resistance to tbe confirmation of tbe sale.</p>

<p>Appeal from the district court of Buffalo county. Heard below before Holcomb, J.</p>

<p>Error -from the district court of Jefferson county. Tried below before Bush, J.</p>

<p>1. Landlord and Tenant: Action for Rent: Defense. ■ In an action for rent it is sufficient to show a contract with plaintiff and a hold- ■ ing under him. Plaintiff’s title or right of possession is immaterial.</p> <p>2. -: -: -. To an action for rent upon a lease at will it is no defense to show that defendant was prevented from terminating the lease by legal proceedings to which plaintiff was not a party.</p>

<p>Error from the district court of Gage county. Tried below before Babcock, J.</p>

Error from the district court of Lancaster county. Tried below before Strode, J. The opinion contains a statement of the case. The court had no jurisdiction over the relief department, and erred in refusing to admit the railroad company to be the defendant as the real party in interest on its own motion.

<p>Error ,to the district court for Cumiug county. Tried below before Evans, J.</p>

<p>1. Negligence: Death oe Employe: Directing Verdict eor Defendant. Where in an action to recover for the alleged negligent acts of the defendant the undisputed evidence, when construed most favorably to the plaintiff, is sufficient to warrant the inference of negligence, it is the duty of the court to- direct a ve-rdict for the defendant.</p> <p>2. -: -: -: Evidence. Held, from a consideration of the evidence, that the plaintiff was not entitled to recover on the cause of action alleged and that the district co-urt did not err in directing a verdict for the defendant.</p>

<p>Eminent Domain: Damages: Injunction: Election op Remedies: Estoppel. The city of O., claiming to act under and by virtue of condemnation proceedings previously had, took possession of and dedicated and improved as a public street property of the defendant, who, in an action against the city, recovered the value of the property appropriated on the ground that the attempted condemnation was void for want of jurisdiction. Subsequently the city, by proceedings in due form, assessed plaintiffs abutting property, together with other lots similarly situated, with half the cost of grading and improving said street, whereupon the latter sought to restrain the collection of such assessment, alleging as ground therefor the invalidity of the condemnation proceeding. Eeld, That by electing to pursue his remedy for the value of the property appropriated he had recognized the easement of the public therein, and is now estopped to call in question the title of the city to said street.</p>

<p>1. Witnesses: Interest in Suit: Transactions with Deceased Person. One who has a direct legal interest in the result of an action in which the adverse party is the representative of a deceased person is not a competent witness therein except as provided by statute. Liability for costs in the suit is a direct legal interest. (.Wylie v. Charlton, 43 Neb., 840; Taylor v. Ainsworth, 49 Neb., 696.)</p> <p>2. -: -•: -•. The word “transaction,” as used in section 329 of the Code of Civil Procedure, embraces every variety of affairs the subject of negotiations, actions, or contracts between parties. (Kroh v. Heins, 48 Neb., 691.)</p> <p>3. -: - — : -: Letters. Copies of letters and letters which passed between parties in the course of a business transaction, and which contain the contract, the result of the negotiations, not otherwise identified than by a witness who has a direct legal interest in the result of the suit, are incompetent as evidence in an action arising from the subject-matter of such contract, if one of the parties to such contract has deceased and one of the adverse parties to the action is the personal representative of the deceased.</p> <p>4. Review: Trial to Court: Admission oe Incompetent Evidence. In an equity case removed to this court by petition in error to secure a review of the proceedings during a trial in the district court without a jury, in which it is complained that the findings and the decree based thereon are not sustained by sufficient competent evidence, it will be assumed that the trial court considered only competent evidence in the determination of the issues; and this court will consider none but the competent evidence in the record, and disregard that which is incompetent, and this regardless of whether the views of this court relative to the competency of any of the evidence apparently conflict with the view which was entertained by the trial court in regard to such evidence. If, so treated, the record does not contain sufficient competent evidence to support the findings and the decree, the decree will be reversed.</p> <p>5. Equity: Trial oe Issues. The issues in equity causes are as a rule triable to the court without a jury. (Code, sec. 281.)</p>

<p>Error from the district court of Harlan county. Tried below before Beall, J.</p>

<p>1. Mechanics’ Liens: Claim: Items: Contract. All the materials for which there are charges in a claim for a mechanics’ lien must have been furnished as parts of one transaction or under one contract for a building or job of work.</p> <p>2. --:--: -: -. Whether all the items of charges for materials were so furnished under a single contract or some items arising under separate and independent transactions or contracts have been included in the claim of lien, are questions of fact for che jury or for the court if the case is tried to the court without a jury.</p> <p>3. -: ---7-: Time. To perfect a mechanic’s lien a duly verified claim must be filed in the proper office within four months from the date of the last article of material furnished or the last labor performed under the contract out of which the account arises.</p> <p>4. -: Evidence. The finding and judgment of the trial court in this cause held supported by the evidence.</p>

<p>Appeal from the district court of Douglas county. Heard below before Ferguson, J.</p>

<p>1. Mandamus: Place oe Trial. In an application for a writ of mandamus where issues of fact are presented for trial, a judge of the district court cannot allow .a peremptory writ at chambers in vacation. The trial of such issues must he at a session of court in che home forum or place of the litigation.</p> <p>2.-Jury Trial. The trial of issues of fact on an application for a mandamus is not one in which a jury may he demanded as a matter of right.</p>

<p>Pleading: Verification: Evidence. An answer verified on belief is not substantive evidence of the allegations of facts therein set forth, and is not admissible as such in favor of the pleading party. If so received in evidence, and it is the only evidence on which a judgment in the cause is based, the judgment will be reversed as not sustained by the evidence.</p>

Original action in the nature of quo warranto to oust respondent from the office of mayor of the city of Omaha. Heard on general demurrer to answer of respondent. The opinion by Norval, J., contains a statement of the issues. It is the duty of a clerk of the district court to pay within ten days, without demand, to the county treasurer all moneys received as fines.

<p>1. Proceedings in Error: Waiver. In a proceeding in error it is proper for the defendant, by way of answer, to set up sucb facts subsequent to tbe judgment sought to- be reviewed as are claimed to bave tbe effect to waive tbe error complained of.</p> <p>2. Replevin: Issues. In replevin tbe question for adjudication is that of tbe rights of tbe parties with respect to tbe possession of tbe property-when tbe action was begun.</p> <p>3. Exemption: Attorney’s Library. Tbe library of an attorney at law, a resident of tbe state, is exempt under section 530 of tbe Code of Civil Procedure, but by virtue of section 531 of said Code sucb exemption cannot be claimed against an execution upon a judgment recovered against him for moneys received professionally for tbe judgment creditor.</p> <p>4. --: • — -: Judgment: Findings. ' Tbe fact that-the judgment was recovered for moneys received by an attorney for bis client makes said section 531 applicable without any finding to that effect in tbe judgment.</p>

<p>Error from- the district court of Pawnee county. Tried below before Babcock, J.</p>

<p>Error from the district court of Antelope county. Tried below before Robinson, J.</p>

<p>Error from the district court of Polk county. Tried below before Bates, J.</p>

<p>Error from the district court of Adams county. Tried below before Beall, J.</p>

<p>1. Corporations: Insolvency: Authority or Receiver. The authority of the receiver of an insolvent corporation to collect assessments made by its board of directors before his appointment as such receiver is sufficiently established by showing that such receiver, under his order of appointment, was required to collect all sums due such insolvent corporation from whomsoever such indebtedness might be owing.</p> <p>2. --: Assessments: Liability oe Stockholders. The members of a board of directors of an insolvent corporation who took part in a meeting of said board at which, by a unanimous vote, an assessment upon the unpaid subscriptions of such directors was declared necessary to discharge the debts of the corporation and accordingly there were made such assessments, are in no situation to question their liability for the amount of such assessments because of the fact that no judgment had been rendered against the corporation, and its want of assets established by the return, milla bona, of an execution against it.</p> <p>3. -: -: Payment: Pleading: Review. Where a note was made for the amount of an unpaid subscription to the capital stock of a corporation, the payment of such note, to be available, must be pleaded and proved by the party relying on such payment as a discharge of his liability, and a finding of the trial court adverse to such alleged discharge will not be disturbed on appeal when all the evidence on that issue is not preserved by bill of exceptions.</p>