Volume 59 — Nebraska Reports

Error from the district court of Dawson county. Tried below before .H. M. Sullivan, J. Section 58, article 2; chapter 98a, Compiled Statutes, exempting irrigation companies from the operation of the general law requiring certain corporations to maintain crossings at public highways, is not unconstitutional as granting special privileges to respondent.

Heard below before Beall, J. The opinion contains a statement of the case. One of many creditors of an insolvent corporation can not sue alone to recover corporate assets wrongfully converted by defendants, without alleging that the corporation refused to sue. The corporation must be a party plaintiff. See Davenport v. Dotos, 85 TJ. S., 626; McMullen v. Ritchie, 64 Fed. Rep., 253; Hawes v. Oakland, 104 U. S., 450; O’Conner Mining & Mfg. Co. v. Coosa Furnace Co., 10 So.

<p>1. Chattel Mortgages: Several Creditors. A chattel mortgage given by a debtor to several creditors, who, by the terms of the instrument, are to prorate in the proceeds of the mortgaged property, is the legal equivalent of a separate mortgage to each of such creditors.</p> <p>g. -: --: Voluntary Assignments. Such mortgage is not an assignment, and is unaffected by the provisions of the statute in relation to voluntary assignments for the benefit of creditors.</p> <p>3. Attachment: Rights oe Defendant, An attachment defendant who has’ incumbered the attached property beyond its value is entitled to be heard on a motion to discharge the attachment.</p>

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

<p>1. Witnesses: Impeachment: Statements Out oe Court. A witness may be impeached by showing that he made statements out of court contrary to those made in court in regard to some matters relevant to the issue.</p> <p>3. -: -: -. Such declarations are not substantive evidence of the fact declared, unless made against interest by one who is a party to the record.</p> <p>3. -: --: -. Such declarations are received to aid the court or the jury in estimating the character and credibility of the witness.</p> <p>4. -: --: -. To lay the foundation for such testimony the attention of the witness should be directed, with reasonable certainty, to the time, place and circumstances of malting the declarations, so that he may refresh his recollection and reconcile, if he can, his declarations with his evidence.</p>

<p>Rehearing of case reported in 58 Nebr., 133.</p>

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

Error, from the district court of Richardson county. Tried below before Stull, J. The opinion contains a statement of the case. A judgment affirmed by the court of last resort can not be opened in a suit in equity. See Godde v. Mahiat, 66 N. W. Rep. [Mich.], 1093; Gray v. Barton, 62 Mich., 186. A court of equity can not set aside a judgment at law because of the perjury of a witness who testified in the action at law. See United States v. Throckmorton, 98 TJ.

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

Heard below before H. M. Sullivan, J. The opinion contains a statement of the case. The contract is enforceable. There was no stifling of competition. The only restraint of trade was limited to a short period and to a single locality. See Brown v. Kling, 35 Pac. Rep. [Gal.], 995. E. G. Galkins, W. D. Oldham and H. M. Sinclair, contra: The contract is one in restraint of trade; and, under the facts proved, should be declared void as against public policy.

<p>Sales: Fraud oe Buyer: Election oe Remedies. A vendor of property who is induced to deliver possession thereof to the vendee by or through the fraudulent representations of the latter may, at his election, ratify the sale and recover the consideration, by action on the contract or the account, or may rescind the contract and reclaim the article or articles sold; but he may not pursue both remedies. They are not concurrent, and by selecting- one with knowledge of the facts the right to the other is waived. See First Nat. Bank of GUadron v. McKinney, 47 Nebr., 149,</p>

<p>1. Pleading: Demurrer to Answer. If an answer raises material . issues upon the allegations of the petition, a general demurrer will he overruled; and this is true if one defense is not well pleaded, or open to attack by the demurrer, and others or another is sufficient.</p> <p>3. Answer: Findings: Verdict. Where, of two pleas in an answer, one is sufficient and the other not, and, of the findings to support the verdict rendered, the one on the good plea is essential, it may sustain the verdict.</p> <p>3. Conflicting Evidence: Review. A finding on conflicting evidence which has sufficient thereof in its favor will not be disturbed on error to the supreme court.</p> <p>4. Immaterial Evidence: Harmless Error. The admission of incompetent and immaterial evidence will not work the reversal of a judgment, if no prejudice resulted to the rights of the complainant.</p> <p>5. Instructions: Harmless Error. Alleged errors of the giving or • refusals of instructions are not available if it is clear they were not harmful to the plaintiff in error.</p>

<p>Rehearing of case reported in 58 Nebr., 163.</p>

Error from the district court of Lancaster county. Tried below before Holmes, J. The opinion contains a statement of the case. A mortgage of land is a mere lien, and conveys no right to possession, or to rents. At execution sale of mortgag- or’s interest in the realty the purchaser acquired mortgagor’s right to possession and to rents, and is not es-topped to assert it. See Newton v. McKay, 30 Mich., 382; Kidd v. Teeple, 22 Cal., 262; Freeman v. Campbell, 42 Pac.

<p>1. Bill of Exceptions: New Trial. The validity of a bill of exceptions does not depend upon the time within which a motion for a new trial is filed.</p> <p>2. Time to File Motion for New Trial. A motion for a new trial, to be of any avail, must be filed at the term of court the verdict or decision is entered, and, except for newly-discovered evidence, within three days after the rendition of such verdict or decision.</p> <p>3. -: Journal Entries. The delay of the clerk of the court in spreading the verdict or decision‘on the court journal will not have the effect to extend the time within which to file a motion for a new trial.</p>

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

<p>1. Appeal: Time to File Transcript: Jurisdiction. To confer jurisdiction upon this court to review a cause on appeal a transcript of the judgment or final order must be filed with the cleric of this court within six months from the entry in the district court of such judgment or final order.</p> <p>2.-: -: -: Consent oe Parties. Consent of parties can not confer jurisdiction of the subject-matter.</p>

Tried below before Sedgwick, J. The order directing plaintiff in error to pay money into court was rendered without jurisdiction and is void. It was, therefore, not a contempt of court to disobey the order. See Runyon v. Bennett, 29 Am. Dec. [Ky.], 431; Board of Commissioners v. Gorman, 19 Wall. [U. S.], 661; First Nat. Banlc v. Rogers, 97 Am.

<p>1. Vendor and Vendee: Oral Contracts: Statute oe Frauds. A contract for the sale of lands is void unless the contract, or some note or memorandum thereof, is in writing, signed by the owner, or his agent authorized in writing.</p> <p>3. Deeds: Delivery. A deed placed in the hands of the grantor’s agent to be held until the consideration is paid is not a delivery to the vendee.</p>

<p>Instructions: Damages: Evidence. Instructions should not submit to the jury elements oí damages not embraced within the evidence adduced on the trial.</p>

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

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

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

<p>Rehearing of case reported in 57 Nebr., 671.</p>

<p>Municipal Corporations: Negligence: Ponds: Death oe Child. A municipal corporation is liable for the death of a child who was drowned in a pond of water situate in part on a public street, and in part on abutting lots, when shown that the accumulation of water was occasioned by the negligence of the city in filling in the street -with earth, that no fence or barrier was erected, and that the child entered the pond from the street. City of Omaha v. Richards, 49 Nebr., 244, followed.</p>

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

<p>Appeal from the district court of Madison county. Heard below before Robinson, 3.</p>

<p>.Rehearing of case reported in 57 Nebr., 717.</p>

Error from the district court of Lancaster county. Tried below before Holmes, J. Tbe. opinion contains a statement of the case. A school site can only be changed at an annual meeting, and the action taken at the special meeting was ineffectual for such purpose. A school site consists not so much in the mere land on which the schoolhouse may stand as in the real and substantial thing — the school.

Error from tbe district court of Madison county. Tried below before Allen, J. See opinion for statement of tbe case. 'Tbe amendment to tbe petition introduced a new cause of action, ag'ainst wbicb tbe plea of tbe statute of limitations should bave been sustained. See Union P. R. Go. v. Wyler, 15 Sup. Ct.

Error from the district court of Lancaster county. Tried below before Holmes, J. The facts are stated in the opinion. The enrolled bill is only prima facie evidence of the enactment of a law. Records of legislative proceedings may be introduced in evidence to show that a statute was not enacted according to constitutional methods. See State v. McClelland, 18. Nebr., 238; Nesbit v. People, 36 Pac.

<p>Rraud: Damages. Rraud, to constitute a cause of action, counterclaim or defense, must Lave been fruitful of injury, or damage to the party who seeks to avail of it.</p>

Error from tlie district court of Douglas county. Tried below before Ferguson, J. Tlie facts and issues are stated in the opinion. Some competent evidence was necessary to show tlie value of the insurance policy at the time of conversion. No such evidence having been adduced, there is nothing to support the judgment. See Barlass v. Brash, 27 Nebr., 212; Peckinbaugh v. Quillin, 12 Nebr., 586; Bmm Iron Co. v. Union Savings Bank, 50 Nebr., 392.

Heard below before Grimes, J. See opinion for statement of the case. The omission of the judges of election to indorse their names on the ballots was an oversight. The court should not disfranchise voters on account of the failure of the election officers to perform their duty. The statutory requirement that names of two judges should be indorsed on ballots ought not to be construed as a mandatory provision. See Swearingen v. Roberts, 12 Nebr., 337; Buckner v. Lynip, 41 Pac.

Error from tbe district court of Douglas county. Tried below, before Dickinson, J. Tbe facts and issues are stated in tbe opinion. Before plaintiff can recover tbe purchase price be must show that be delivered tbe patterns. See Atwood v. Lucas, 53 Me., 508; Messer v. Woodman, 22 N. H., 172; Newmarket Iron Foundry v. Harvey, 23 N. H., 395. Tbe statement in tbe contract that tbe goods were sold and delivered was properly contradicted by evidence.

<p>1. Review: Paii/ure to Pile Briee. Where the appellant fails to file a brief in this court, the judgment will be affirmed, when the cause is reached in its order, without an examination of the questions presented by the record.</p> <p>2. Discharge of Administrator: Parties. That one has been sued by an administrator will not authorize such person to resist in the county court an application made therein to vacate an order discharging the administrator.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of the case. Defendants intermingled the goods conditionally sold with those afterward purchased. It was impossible for plaintiffs to separate the new goods from those originally sold. Defendants failed to identify the goods purchased by them subsequent to the conditional sale. Plaintiffs, therefore, were entitled to recover' the entire stock.

<p>Conditional Sale of Merchandise: Future Purchases. The contract of conditional sale of merchandise involved herein construed, and held not to authorize the vendees to purchase new goods on the credit of the vendors. Richardson Drug Go. v. Plummer, 56 Nehr., 523, followed.</p>

Error from tbe district court of Douglas county. Tried below before Dickinson, J. See opinion for statement of tbe case. A surety on an appeal bond can not be held in an appellate court for a larger amount than tbe lower court had jurisdiction to render.

Tried' below before Kinkaid, J. The opinion contains a statement of the case. Accused was charged Avitli having committed two crimes. Under an information charging in different counts two separate and distinct offenses, a defendant who was acquitted under one count, and found guilty under the other, can not afterward be convicted of the offense of which he was acquitted.

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

<p>' 1. Special Appearance. A special appearance precludes the party entering- snch appearance from obtaining any decision on the merits of the controversy.</p> <p>2. Appearance: General and Special. Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance.</p> <p>3.-: -. If a defendant invoke the judgment of the couyt, in any manner, upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general.</p> <p>4. Revivor of Judgment. The proceeding to revive a dormant judgment is not the commencement of a new action, hut the continuation of an action previously commenced.</p> <p>5. -: Limitation oe Actions. The general law as to the limitation of actions does not apply to the proceeding to revive dormant judgments.</p> <p>6. Revivor of Action: Time. The limitation as to the time within which steps must, he taken to revive an action in the name of the representatives of a deceased persbn does not apply to the revival of dormant judgments.</p> <p>7. Revivor of Judgments: Time. The word “manner,” found in sections 472 and 473 of the Code of Civil Procedure respecting the revival of judgments, does not include the element of time.</p> <p>8. Review: Questions Not Raised Below: Jurisdiction. A question raised for the first time in this'court will not be considered, except it be of a jurisdictional character.</p>

Heard below before Sedgwick, J. The, opinion contains a statement of the case. A deed given to secure a debt passes the legal title to the land. See Gallagher v. Giddings, 33 Nebr., 222; Harrington v. Birdsall, 38 Nebr., 176; Stall v. Jones, 47 Nebr., 706. A higher security is a substitute for the lower, and extinguishes the latter.

<p>Negotiable Instruments: Indorsements: Agency: Estoppel. The conclusions announced in First National Bank of Hastings v. Farmers & Merchants Bank, 56 Neibr., 149, approved -and followed, as governable of the matters of litigation in the present ease, and, having- been stated there, need not and will not be restated here. - .. _ /</p>

<p>1. Garnishment: Rights oh Parties. A plaintiff in a suit of garnishment, by service of the writ, becomes entitled to the rig-hts of his debtor against the g-arnishee, and no after-understanding or ag-reement between the two latter parties can essentially change the rights which have so attached.</p> <p>2. --: Assignment oh Cause oh Action: Rights oh Parties: Evidence: Res Judicata. A party recovered judgment against his debtor. The latter was summoned in garnishment proceedings by the creditor of the former, and, his answers being unsatisfactory, suit was instituted against him by the plaintiff in the suit of g-amishment. All the suits and proceeding’s-were in the one — the county — court. The g-arnishee paid into court an amount which, subsequent to service of the writ of garnishment, his creditor had agreed to receive as his due. This was treated by the court, to the extent shown by the record, as a payment in the first original action. A party filed a claim of right to receive the money on the ground that the original cause of action had been his by assignment. This was filed in the original action, and notice of it was served on counsel for plaintiff in garnishment. They appeared, did not object to the hearing, and the applicant’s right to receive the money was adjudicated. Held, A proceeding without law or rule of practice; that the court had no jurisdiction, and that the parties participating did not confer jurisdiction; the decision did not fix the rights of the parties; and the record of the proceeding's and determination was not competent evidence in this, the garnishment suit of a prior adjudication alleged as matter of defense by the garnishee.</p>

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

<p>Replevin: Verdict eor Defendant:. Excessive Damages. Amount of damages assessed, and for which judgment was rendered, held excessive and not warranted by the evidence.</p>

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

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

<p>1. Chattel Mortgages: Description op Property: Evidence. Where the description of property in a chattel mortgage is clear, and free from all ambiguity, parol proof is inadmissible to show the extent and meaning- of language employed.</p> <p>2. - — : -. Although the description in a chattel mortgage may be insufficient to impart notice to innocent third parties, such fact will not avail a purchaser from the mortgagor who was apprised of the lien on the property before he parted with the consideration.</p> <p>3.-: Prooe op Registration. The filing o-f a chattel mortgage is not proven by the introduction in evidence of a copy of the instrument, even though the fact of filing- may have been indorsed thereon.</p> <p>4. -: Private Sale: Waiver op Lien. Where a mortgagee of chattels authorizes the mortgagor to sell the property described in the mortgag-e at private sale, and with the proceeds pay the mortgage debt, and the sale is accordingly made, the mortgagee has thereby waived his lien.</p>

<p>1. Contracts: Construction. Coijrts will usually adopt the interpretation placed on a contract by the parties themselves.</p> <p>2. -: -. A contract should be construed, if possible, so as to give effect to all its provisions.</p>

Heard below before Holmes, J. The opinion contains a statement of the case.

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

<p>1. Personal Injuries: Contributory Negligence. Where contributory negligence was the proximate cause of personal injury, there can be no recovery of damages.</p> <p>S. Negligence: Conflicting Evidence: Review. Where there is no conflict in the evidence, and but one reasonable inference can be drawn from the facts, the question of negligence is for the court.</p>

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

<p>1. Transcript for Review: Authentication: Jurisdiction. The appellate jurisdiction of the supreme court depends upon the filing with the clerk of a duly authenticated transcript of the proceeding’s of the district court containing the judgment or final order sought to be reversed.</p> <p>S. —-■: - — : Dismissal. In the absence of such certificate, the court is without authority to pronounce judgment.</p>

<p>1. Trial: Reception of Evidence. The reception of evidence tendered by the defendant after a decision against him on a demurrer to plaintiff’s evidence is not error.</p> <p>2. -: Amendment of Answer: New Defense. It is within the discretion of the court to permit a defendant, during the course of the trial, to amend his answer so as to present a new defense.</p> <p>3. -: -:--: Continuance. In such case, the plaintiff, if not prepared to meet the new issue, may have a continuance of the cause, upon such terms as the court may deem just.</p> <p>4. -: -. On facts set forth in the opinion, helé that an amendment to the answer was properly made, and became part of the record in the case.</p> <p>5. Rules of Trial Court: Judicial Notice: Review. This court will not take judicial notice of the rules of practice of the district court. To be considered, such rules must be made a part of the record.</p> <p>6. Pleading: Inconsistent Defenses: Election: Waiver. Where an amended answer presents inconsistent defenses, the appropriate remedy is to require defendant to elect upon which defense he will proceed. If there be no motion to require an election, the objection that inconsistent defenses are presented will be waived.</p> <p>7. Husband and Wife: Fraudulent Conveyances. A husband may transfer property to his wife in payment of a debt due her, provided it is not done with intent to hinder, delay or defraud his creditors; and even though he be guilty of fraud in the matter, such transfer will be valid, if the wife was ignorant of, or did not participate in, the fraudulent purpose of her husband.</p> <p>8.-: Wife’s Claim Against Husband: Enforcement. A wife may enforce her just claims against her husband on the same terms, except as to the quantum of proof, as other creditors. In such case she must show that the debt was genuine, that her purpose was honest, and that she acted in good faith in obtaining payment.</p> <p>9.-: Creditors of Husband: Rights of Wife: Estoppel. Where credit was not obtained on the faith of property conveyed by an insolvent husband to his wife, there is, in an action by a creditor, no basis for an estoppel against her assertion of ownership of such property.</p>

<p>1. Taxation: Assessment oe Proberty. In counties under the township system of government, an individual assessment of property must bear a just relation to the assessed value of all other property in the town; and if it does so, it will not be disturbed.</p> <p>2.--: -: Corrections. The county board, in counties under township organization, is authorized to correct individual assessments only where the town board, having jurisdiction, has, upon proper application to it, refused to grant the relief demanded.</p> <p>3. -:--: Board oe Equalization. In counties under township organization, the supervisors, sitting as a board of equali- . zation, possess no greater authority to redress individual grievances than that possessed by the town board.</p> <p>4. Opinion Evidence. Triers of fact are not generally bound by opinion evidence of value, even when it is not met by opposing proof.</p>

<p>1. Insurance: Failure to Disclose Existence op Liens. When an application for an insurance policy is oral and no inquiry is made as to the character and" condition of the title to the property to be insured, a failure to disclose the existence of incumbrances will not, in the absence of fraud, avoid the policy.</p> <p>3.-: Misstatement in Application. A misstatement, in an ap- ' plication for a policy of insurance, of a material fact, inducing the acceptance of the risk, will avoid the policy.</p> <p>3. -: -: Incumbrances. A misrepresentation as to the amount of incumbrance upon property sought to be insured, where the policy is conditioned that it will be void if the property be mortgag’ed or otherwise incumbered without notice to, and consent of, the company indorsed thereon, will, in the absence of a waiver, avoid the policy.</p>

Ekrob from the district court of Douglas county. Tried below before Slabaugi-i, J. See opinion for statement of the case. Plaintiff, after verdict, was erroneously permitted to amend his petition in matter of substance.

<p>Error from tlie district court of Johnson county. Tried below before Letton, J.</p>

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

<p>1. Default: Trial: Erroneous Rulings: Review. Alleged errors in rulings during the trial of a cause, or which are of the sufficiency of the evidence to support the findings and judgment, will not be reviewed in a proceeding in error or appeal by or for a party against whom the judgment was on default.</p> <p>2. Joint Assignments of Error. Joint assignments of error in a petition not'good as to all who join must be overruled. See Levy v. South Omaha Savings Bank, 57 Nebr., 312, 77 N. W. Rep., 769.</p>

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

<p>Bank Cbeek: Payment: Insueeiciency oe Deposit. A bank will not be obligated to pay a clieck in a sum greater than the amount to the credit oí the drawer in his account with the bank; nor does the check operate a transfer or an assignment of the lesser amount of the account.</p>

<p>1. Review: Dismissal. A motion for dismissal of a proceeding to reverse the adjudication in an action by creditors’ bill, the decree which determined the amount due the creditor a judgment debt, and annulled conveyances of titles to land as fraudulent, will not be sustained, tor the reason that the debt has, subsequent to the decree, been satisfied and released.</p> <p>2. Judgment on Pleadings. To warrant affirmative relief to a party in a cause submitted upon the pleadings he must be entitled thereto upon the facts therein stated. The question is not upon whom is the burden of proof, but who is to be accorded judgment upon the facts pleaded. See State v. Lincoln Gas Go., 38 Nebr., 33.</p> <p>3. Fraudulent Conveyances: Tntent. The question of fraud or intent accompanying conveyances of title is one of fact.</p> <p>4. -: Relatives: Burden or Proof. That conveyances of title among' relatives are without consideration does not establish them fraudulent, as a matter of law, in an attack upon them by creditors; it but casts the burden of proof of their bona fides upon the parties who desire to sustain it.</p> <p>5. Homestead: Pleadings: Evidence. The condition of the pleading's in regard to the homestead character of land held such as would have warranted the reception of evidence on the question of homestead right.</p>

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

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

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

Error from the district court of Douglas county. Tried below before Scott, J. Heard on motion to dismiss the proceeding in error.

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

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

<p>1. Review: Error: Presumptions. Error will not be presumed, but must be affirmatively revealed by the record.</p> <p>2. New Trial: Time to File Motion. Except upon the ground of newly-discovered evidence, a motion for a new trial must be filed within three days after the verdict or decision was rendered, unless the filing in time was unavoidably prevented.</p>

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

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

<p>1. Lien of Judgment for Costs: Criminal Law. By section 624 of the Criminal Code a judgment of the district court in favor of the state for costs is a lien on all real estate, within the county, owned by the accused at the time of docketing the cause.</p> <p>2. -: Assignment: Statute oe Limitations. The statute of limitations begins to run against the assignee of a judgment in favor of the state from the time of the assignment.</p> <p>3. -: Expiration. Such judgment becomes dormant and ceases to be a lien on real estate at the end of five years from the date of the assignment.</p> <p>4. Executions: Sale of Realty: Injunction. Injunction is the appropriate remedy to prevent an execution sale of land for the satisfaction of a judgment which is neither a lien on the property nor a personal charge against the owner.</p>

Error from the district court of Douglas county. Tried below before Scott, J. On a contract of a married woman there may be rendered against her a personal judgment, which will bind subsequently acquired property. See Jones v. GrostJncaite, 17 la., 393; Rielimond v. Tibbies, 26 la., 476; Van Metre v. Wolf, 27 la., 345; Williamson v. OUne, 20 S. E. Rep. [W. Ya.], 917.

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

<p>1. Review: Evidence. A verdict, supported by competent evidence, will not be set aside simply because it does not comport with the conclusion which this court, as triers of fact, might have reached.</p> <p>2. Evidence: Mottve. Evidence is admissible which tends to show that a person had a motive for doing an act.</p> <p>3. Mote: Execution j Evidence. In the trial of an action on a promissory note, the execution of which is denied, evidence of facts and circumstances surrounding the parties, and attending the" giving of the note is relevant.</p> <p>4. Default: Parties: Judgment. In an action against two or more persons, some of whom are in default, the court should, on the trial, render judgment against such as are in default, regardless of th.e finding on the issues between the plaintiff and contesting defendants.</p>

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

<p>1. Summons: Defendants in Different Counties. After service of summons, in a personal action in tlie county where commenced, upon a party who by the pleading- filed is a real defendant, summons may properly be issued to any other county of the state for service upon other defendants.</p> <p>3. -: -: Sheriffs and Constables. The summons issued by a county court for service upon a defendant of a county other than the one in which the action is commenced is correctly di- • rected to the sheriff or any constable of the county.</p> <p>3. -: -: Names of Parties. The summons so issued is not void because the names of all defendants in the action do not appear therein.</p> <p>4. Statute of Limitations: Waiver of Plea. The defense of the bar of the statute of limitations, if not presented by a plea, is waived. Hobson v. Oummms, 57 Nebr., 611, followed.</p>

<p>Summons: Defendants in Different Counties: Names of Parties: Statute of Limitations.</p>

Ebbob from the district court of Nemaha county. Tried below before Letton, J. A wife may, if she chooses, dispose of her separate property by deed or will, and thereby defeat curtesy, and the husband takes curtesy in that property only of which the wife died seized and intestate. See Hatfield v. Sneden, 54 N. Y., 280; Ransom v. Nichols, 22 N. Y., 110; Porch, v. Fries, 18 N. J. Eq., 204; Silsbyv.

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

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

<p>1. Rulings on Evidence: New Trial: Review. Rulings of the trial court in the admission or rejection of testimony are not reviewable in the appellate court, where the attention of the trial court was not challenged thereto in the motion for a new trial.</p> <p>2. Instructions: Exceptions: Review. Instructions to which no exceptions were taken at the time they were given to the jury are not reviewable in this court.</p> <p>3. Sufficiency of Evidence: Assignments oe Error. This court will not review the evidence to ascertain whether it is sufficient to support the verdict, when the question is not raised by the assignments contained in the petition in error.</p> <p>4. Assignments of Error: Review. Assignments of error not argued at the bar, or in the briefs filed, are waived.</p>

<p>Trusts: Purchase oe Land: Title: Statute oe Frauds: Attachment. A rehearing having been g-ranted in this case, the record is re-examined and the conclusions reached on the former hearing adhered to.</p>

<p>1. Pleading: Confession and Avoidance: Burden of Proof. The burden of proof as to new matter pleaded by way of confession and avoidance of the allegations of an adversary’s pleading is on the party setting forth such new matter.</p> <p>3.-: Reply: Construction. A reply which refers in vague and general terms to the allegations of the answer should be construed as responding to the particular matters set forth in such answer.</p> <p>3. -: Confession and Avoidance. A party, by pleading in avoidance of matter set forth in his adversary’s pleading, concedes the truth of such matters in seeking- to avoid their leg'al effect.</p> <p>4. Insurance: Chattel Mortgage. The giving- of a mortgage on insnred chattels, in violation of a condition of the policy against incuinbi’ances, renders snch policy void.</p> <p>5. ---: -: Discharge of Lien. In snch case the cancellation ■or discharg-e of rhe lien before loss occurs revives the contract.</p> <p>6. -: ; — : -. And the burden of proving such cancellation of the lien is on the insured.</p> <p>7. Review: Second Trial: Law of the Case. The determination of questions presented to this court in its review of the proceedings of an inferior tribunal becomes the law of the case, and, ordinarily, will not be re-examined in a subsequent review of the proceeding's of the inferior tribunal on a second trial of the case.</p>

Error from tbe district court of Nemaba county. Tried below before Letton, J. ' The facts are stated in the opinion. When the clerk received the money under an order directing it to be brought into court, he received it in his official capacity, and the sureties are liable. See McDonald v. Atkins, 13 Nebr., 568; Eeppe v. Johnson, 14 Pac. Rep. [Gal.], 835; Walters-Gates v. Wilkinson, 60 N. W. Rep. [Ia.], 514.

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

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

Heard below-before Cobnish, J. Tlie opinion contains a statement of the case.

Heard below before Hastings, J. See opinion for statement of the case. Ballots on which the name of one judge only was indorsed should be counted. A voter, who complies with the law, and marks his ballot correctly should not be disfranchised for errors, fraud or negligence of election officers.

<p>1. Negligence: Definition. The following definition, “Negligence is the omission to do something- which a reasonable man guided by those considerations which ordinarily reg-ulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do,” held not incorrect. See Kearney Meetrie Co. v. Laughlin, 43 Nebr., 404.</p> <p>2. Review Without Bill of Exceptions: Evidence. If the bill of exceptions in a cause has been quashed, questions, the decisions of which necessarily call for an examination of the evidence, can not be considered.</p> <p>3. -: Instructions. If instructions contain statements which may have been correct and applicable to possible conditions -of the proof in the case, in the absence of a bill of exceptions, they must be presumed to be free from error.</p>

Error from tlie- district court of Scott’s Bluff county. Tried below before Grimes, J. The facts are stated in the opinion. The services rendered by the plaintiff for the defendant before the legislature in securing the passage of the bill for the relief of the defendant were laAvful.

<p>1. Pleading: New Matter in Answer: Reply: Trial: Review. If, during the trial of an action, new matter pleaded in the answer is treated by the parties as denied -or placed in issue, it will be so considered in this court, although no, or an imperfect, reply was filed.</p> <p>3. Failure to File Instructions: Exceptions: Review. The charge of a trial court should be filed with the clerk before read to the jury; but that it was not done is not available error, unless the complainant excepted to such omission at the time.</p> <p>3. Action on Account: Sueeiciency oe Petition. Objections to the petition herein held not well grounded, and not available.</p>

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

Original action in the nature of quo warranto to test the validity of chapter 47,'Session Laws of 1899, creating an insurance bureau with the governor as commissioner.

Error from the district court of Douglas county. Tried below before Slabaugh, J. The opinion contains a statement of the case.

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

<p>1. Unincorporated Bank: Corporation. An unincorporated bank, exclusively owned by one person, is not a corporation de facto, though the business was conducted by a president and cashier.</p> <p>2. -: Disposal oe Assets. The assets of the bank may be lawfully disposed of by the owner to secure or pay the just claims of any of his creditors. .</p> <p>3. -: -: Stare Decisis. Longfellow u. Barnard, -58 Nebr., 612, adhered to.</p>

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

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

Error from the district court of Douglas county. Tried below before Fawcett, J. The opinion contains a statement of the case. The court would have been justified in directing a verdict for the defendant sureties on the issue as to the delivery of the bond, and if not so, then certainly the issue should have been submitted to the jury. To render a bond effective, as a binding obligation delivery is essential.

Error from tlie district court of Douglas county. Tried below before Baker, J. The facts are stated in the opinion. Before final submission plaintiff moved to dismiss the case without prejudice, and its motion should have been sustained.

<p>Emtoit from the district court of Fillmore county. Tried below before Hastings, J.</p> <p>References: Ives v. Norris, 13 Nebr., 253; White v. City of Lincoln, 5 Nebr., 516; Marvin v. Weider, 31 Nebr., 775.</p> <p>References: Poffhibarger v. Smith, hi Nebr., 788; State v. Bush, 25 Pac. Rep. [Kan.], 614; People v. Nelson, 27 N. E. Rep. [111.], 217; In re Pinkney, 27 Pac. Rep. [Kan.], 179; Easton & A. R. Co. v. Central R. Co., 52 N. J. Law, 267; Tice v. Bay City, 78 Mich., 209; County Commissioners v. Mellen, 72 Md., 603; Perry v. Cross, 25 Nebr., 826; Fenton v. Yule, 27 Nebr., 758,</p>

<p>1. Bill of Exceptions: Rules oe Trial Court. The rules of practice of the district court may be incorporated into the bill of exceptions without being formally introduced in evidence.</p> <p>3. Evidence: Judicial Notice. Facts of which the court will take judicial notice need not be given in evidence.</p> <p>3. Bill of Exceptions: Record oe Events. A bill of exceptions may properly include a record of events transpiring in the presence of the court, but not formally introduced in evidence.</p> <p>4. -: Objections to Rulings not in Record. Grounds of objection to a ruling, order or judgment which do not appear in the record may be brought into the bill of exception by the party' complaining, by reducing such grounds of objection to writing and asking to have them incorporated into such bill of exceptions.</p>

Original application for mandamus to require respondent, as judge of the district court, to fix the amount of a bond to supersede an order confirming a sale of realty. So far as the right to a supersedeas is concerned, there is no distin'ction between an order directing the sale of real estate, and an order confirming such sale. See Kountze v. Erck, 45 Nebr., 288; State v. Fawcett, 58 Nebr., 371. The facts “and pleadings establish relator’s right to intervene.

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

Original application for mandamus to require respondent, as judge of the district court of Oass county, to correct a bill of exceptions.

<p>Recognizance: Terms: Forfeiture. A recognizance in a bastardy proceeding, conditioned that accused “shall be and appear before the district court on the first day of the next term thereof, and appear thereat from day to day to abide the order of the court,” is limited to the term at which it exacts the appearance. A continuance of the cause to a subsequent term of court is not within the contract of the recognizance, and, if made, a non-appearance of accused at the term to which the continuance carries the cause is not a breach of such recogni- " zanee.</p>

Ehhor from tbe district court of Lancaster county. Tried below before Holmes, J. The ánditor of public accounts had no authority to receive from insurance companies fees for services per- , formed for them. See Moore v. State, 53 Nebr., 831. The state can not be estopped by unauthorized acts of officers or agents.

<p>1. law of the Case: Dormer Appeal. The points of law decided on a former appeal ordinarily can not be reviewed on a subsequent appeal.</p> <p>2. Sufficiency of Evidence. The finding' of a jury on a question of fact will not be disturbed on review, when sustained by sufficient evidence.</p> <p>3. Instructions: Issues. It is not reversible error to refuse an instruction upon a point not involved in a case, or, if in issue, it has been fully and fairly covered by the instructions given.</p> <p>4. Misconduct of Counsel: Review. Argument of counsel based on matters not in evidence will not be reviewed if made in reply to similar arg-ument of adverse counsel.</p>

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

<p>1. Mechanics’ Liens: Foreclosure: Evidence. Evidence held sufficient to sustain a decree foreclosing a mechanic’s lien.</p> <p>2. Review: New.Trial: Questions not Raised Below. In an error proceeding to review a decree sustaining’ a mechanic’s lien this court will not examine the record to ascertain whether the amount of recovery was excessive, where the point was not raised in the trial court in the motion for a new trial.</p>

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

Error, from the district court of Lancaster county. Tried below before Tuttle, J. The jury’s view of the premises is evidence in the case, and an instruction stating a different rule is error. See Omaha & R. V. R. Go. v. Walker, 17 Nebr., 435; Garroll v. State, 5 Nebr., 35; Washburn v. Milwaukee & L. W. R. Go., 59 Wis., 364; Neilson v. Chicago, M. & N. R. Go., 58 Wis., 517; Remy v. Municipality, 12 La.

<p>Municipal Corporations: Expenses: Appropriations. The council of a city of the second class, having over 5,000 inhabitants, can not lawfully incur expense, or enter into contract therefor, unless money has been previously appropriated for that purpose, or the expenditure has been previously sanctioned by a majority of the electors Of the city.</p>

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

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

<p>1. Summons: Return Day. A summons in which an erroneous return day is inserted is irregular, but not void.</p> <p>2. -: -: Motion to Quash. In such case a defendant, on whom such erroneous summons has been served, should, if he desire to take advantage of the defect, move to quash the writ.</p> <p>3. -: Jurisdiction: Judgment. Where a court obtains jurisdiction of a party by the service of a defective summons, the judgment rendered is not void.</p> <p>4. -: Judgment: Correction. The right to correct an erroneous judgment, arising from the service of defective process, rests, in the first instance, with the court out of which the process issued.</p>

Error from the district court of Kearney county. Tried below before Beall, J. The legislature has no power to change the scope or effect of prior legislation by amending the title of an act passed by a former legislative assembly. See People v. MeOallum, 1 Nebr., 182; State v. Steioarl, 52 Nebr., 243; Ballou v. Blade, 17 Nebr., 391.

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

<p>1. Witnesses: Evidence. Witnesses should state facts, and not mere conclusions.</p> <p>2. Executions: List of Liens: Certification: Officer’s Seal. Section 491e of the Code of Civil Procedure requires certain designated officers to certify, under their hands and official seals, the amount and character of all liens appearing of record against real estate levied on whick ture prior to the lien of such levy. Some of tlie officers designated in -said statute are .by law reqiured'to have an official seal, others are not. Held, That it was not the intention of the legislature that such officers as are not by law required to have an official seal shall certify to such liens under an official seal, but that 'a certificate under the hands of such an officer is sufficient.</p> <p>3. -: -: -. Under a statute requiring an officer to certify to the “character” of such liens, it is sufficient if their general character be stated in such certificate.</p> <p>4. Mortgage-Foreclosure: Summons: Indorsements. On foreclosure of mortgage it is not necessary that the summons should have indorsed thereon the amount for which plaintiff seeks to recover, to entitle him to a deficiency, judgment.</p> <p>5. Conflicting Evidence: Review. A finding on conflicting evidence will not be disturbed on review.</p>

<p>1. Appeal to District Court: Pleadings. On appeal to the district court a plaintiff is not required to state his cause of action iu the same language in which it was pleaded in the conrt from which the appeal was taken. It is sufficient that the identity of the cause of action is preserved.</p> <p>2. Pleading: Answer: Demurrer. The filing of an answer after a special demurrer to the petition is overruled is a waiver of an exception to the decision of the court on the demurrer.</p> <p>3. Principal and Agent: Ratification. A principal must adopt the unauthorized contract of his agent as a whole, or not at all. He can not adopt the portion that is beneficial and reject' the remainder.</p> <p>4. Ultra Vires: Pleading. The defense of ultra vires is not available under a general denial.</p>

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

<p>1. Officers: Failure to Approve Stay Bond. An officer, charged with approval of stay bonds, who does not comply with the statutory requirements, is guilty of a breach of official duty.</p> <p>2. -: -: Action on Bond. In such case the judgment creditor may maintain an action against such officer on his official bond for the recovery of such damages as he may have sustained.</p> <p>3. —■-: Stay Bond: Liability oe Sureties. Sureties on a stay bond can not, in an action against them on such bond, plead their lack of legial qualification to become sureties on such bond.</p> <p>4. -: Action on Bond: Damages. In an action against an officer on his official bond for damages for wrongfully approving a stay bond, where no actual damage is proved, the plaintiff is entitled to a judgment for nominal damages and costs.</p> <p>5. Nominal Damages: Harmless Error. The failure to award nominal damages is not reversible error, where it does not affect a substantial right or entitle the plaintiff to costs.</p>

<p>I. Sufficiency of Evidence: Review. A verdict supported by competent evidence will not be set aside, unless clearly or palpably wrong.</p> <p>.3. Instructions: Review. An instruction, tbe giving of which is not assigned as error, is the law of the ease, whether right or wro-ng.</p> <p>3. -: Jury. The jury are bound to follow the instructions given by the court, and act on them in making np their verdict.</p> <p>4. Pleading: Defense. A defense not pleaded can not be considered ' in the decision of the case.</p> <p>5. Instructions: Assignments of Error: Review. An assignment of error directed against a group of instructions will be considered no further than to ascertain that one of the instructions complained of was properly given.</p> <p>6. Evidence: Assignments of Error: Review. An assignment of error that the district court' erred in refusing to admit the evidence of a certain witness will be overruled, if the record shows that a portion of the evidence was, in fact, admitted.</p>

<p>1. Bailment: Conversion. A bailee who fails, or refuses, to surrender trust property to the owner in accordance with the express or implied terms of the bailment is liable in an action for conversion, unless he can show a prior lawful seizure of the property under judicial process against the owner, or some other legal and valid excuse.</p> <p>2. Summons: Constructive Service: Judgment. A summons served constructively on a resident of the state, who has neither abscondecl nor concealed himself with intent to defraud creditors, or to avoid the service of process, does not confer jurisdiction over the person of the defendant, nor justify the rendition of a judgment condemning- his property.</p>

<p>1. Contracts: Extrinsic Evidence: Question eor Jury'. Where extrinsic evidence regarding the effect intended to be given an equivocal instrument is contradictory, the question should be submitted to the jury.</p> <p>2. -:-: Instructions: Review. An instruction to the effect that a waiver of provisions contained in a written instrument must be proved by evidence which is clear and unequivocal, is erroneous.</p>

<p>1. Law of the Case: Second Appeal. The determination of questions presented to this court, in an apppellate proceeding-, "becomes the law of the ease, and, ordinarily, will not be re-examined when the canse is again brought up for review.</p> <p>3. Tax Liens: Interest. Interest due o-n delinquent taxes constitutes part of the tax lien on property upon which the original tax is a charge.</p> <p>3. Liens: Junior Incumbrancers. A junior incumbrancer who, to protect his lien, taires up a superior lien is entitled to interest from the date of payment on the entire" sum paid to discharge such superior lien.</p> <p>4. Review: Mistakes in Computation. Where a decree brought here for review is found to be erroneous, because of a mistake in computation, the error will be corrected in this court, or the cause ■will be remanded with direction to the district court to render the proper judgment.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of the case.

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

<p>1. Work and Labor: Pleading. A petition for tbe recovery, quantum meruit, for work and labor performed by tbe plaintiff for defendant, examined, and held ‘to state a canse of action.</p> <p>2. Conflicting Evidence: Review. Where the evidence is conflicting and the judgment is supported by competent evidence, it will not be disturbed, even though a different conclusion might have been reached.</p> <p>3. Estoppel: Pleading. An estoppel, to be available as a canse of action or defense, must be specially pleaded.</p>

<p>1. Creditors’ Bill: Defense: Evidence. A judgment was obtained in the county court of the county in which the judgment debtors resided, and a transcript thereof filed in the district court, upon which execution was duly issued and returned nulla hona. Action in the nature of a creditors’ bill was begun, and the debtors answering alleged and offered proof of ownership of a small tract of real estate of uncertain value in .another county subject to execution. Evidence examined, and held insufficient to defeat plaintiffs’ right of ¡recovery in their equity action.</p> <p>2. -: -: --. Held, That the exhaustion of the remedy at law against an indorser on the instrument merg-ed into judgment, and who was not a party to the judgment proceedings, is not essential to the maintenance of an equitable action against the judgment debtors.</p> <p>3. -: -: -. Held, That the judgment is sustained by the evidence.</p>

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

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

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

<p>Joint Assignment of Error. A joint assignment of error in a petition in error made by two or more persons, which is not well taken as to all who joined therein, will be overruled as to all.</p>

Error from the district court of Perkins county. Tried below before Grimes, J. argued that averments in the answer may cure a complaint defective in material allegations, citing Ogden v. Ogden, 60 Ark., 70; Lyon v. Logan, 68 Tex., 521; Haggard v. Waller, 6 Nebr., 271; Insurance Go. v. Kelley, 24 O. St., 345.

Error from the district court of Lancaster county. Tried below before Holmes, J. argued that the evidence did not make a case of negligence against the city; and that there was no proof to charge the city with notice of defects. See Cooper v. Milwaukee, 72 N. W.. Rep., 1130; Hanseom v. Boston, 141 Mass., 242; Wakeham v. St. Clair Tp., 51 N. W. Rep., 696; Gubasko v. New York, 1 N. Y. Supp., 215; Lohr v. Philips-burg, 30 Atl. Rep., 822; Burns v. Bradford, 20 Atl.

Error from the district court of Douglas county. Tried below before Keysor, J. argued that an injunction would be allowed in a proper case of this kind; the reply alleged an adverse possession against a private person. The statute of limitations applies to counties.

Error from the district court of Lancaster county. Tried below before Hall, J. argued that the law declared that a check drawn- upon a bank must be presented within a reasonable time, at the end of which time the risk terminated as to the drawer, and became the risk of the holder.

Error from the district court, of Saline county. Tried below before Hastings, J. argued that how far one partner could bind the firm by a guaranty obliging the firm to pay, if some other person did not, had been much disputed.

Error from the district court of Kearney county. Tried below before Beall, J. The evidence did not warrant a conviction of rape. The state failed to prove that the prosecutrix was not the daughter or sister of the defendant. This was fatal. See Bishop, Criminal Procedure, secs. 77, 81, 84, 86; Maxwell, Criminal Procedure, pp. 621, 629. argued that Meddles’ name was indorsed on the information as one of the state’s witnesses.

Error, from the district court of Dodge county. Tried below before Marshall, J. argued that it was an accident which might come to any busy lawyer, which came to counsel for the defendants Zimmerer, and it was without fault upon his part or upon the part of his clients. The motion for a new trial should have been sustained.

<p>1. Garnishment: Summons:- Appearance: Good Faith: Protection erom Liability. A person served with summons in garnishment, commanding him to answer upon a day certain therein named, may appear in response to the summons at any time after its service and answer touching his indebtedness to the person or corporation whose funds are sought to be reached by the proceedings in garnishment, and if, in so doing, he is acting in good faith, he will be protected from further liability on the indebtedness for which he is garnisheed.</p> <p>3. -- — : Answer: Statute: Order eor Satiseaction oe Judgment. Upon the answer of a g-arnishee admitting his indebtedness to an execution debtor, the court before whom the same is made is empowered, under the provisions of section 349 of the Code, immediately to enter an order for the payment of the amount admitted to be due the execution debtor into court, for the satisfaction of the judgment debt or a part thereof.</p> <p>3. -: Order Final: Appeal: Execution. Such an order is final and conclusive, unless appealed from, and upon which execution may issue for its enforcement.</p> <p>4.-: Compliance with Order: Discharge oe Garnishee. In garnishment proceedings, where the answer has been made in good faith before answer day, and an order entered by the court for the jiayment of money for the benefit of the execution creditor admitted to be owing- to the execution debtor, the garnishee will be discharged from further liability upon such indebtedness, if he comjily with the order of the court, notwithstanding he is subsequently, but before the payment, notified of an assignment of the account evidencing his indebtedness, and which assignment was made prior to the time of instituting garnishment proceeding's.</p> <p>5. Entry of Order: Statute: Notice oe Assignment. Upon the entry of an order against a garnishee under the provisions of section 349 of the Code, he is not required to make further disclosures or take supplemental proceedings, because of a notification of an assignment of the indebtedness against him received thereafter.</p> <p>6. Judgment: Statute: Protection oe Garnishee. An order against a garnishee for the payment of money for the benefit of an execution creditor under the provisions of section 349 of the Code is enforceable by execution, and a garnishee, acting in good faith, will be protected from further liability to the same extent as if such order were a judgment against him.</p>

<p>1. Verdict: Evidence. A verdict of a jury will not be overturned by tbis court, unless obviously wrong, and not supported by any competent evidence.</p> <p>2. Search for Dead Body: Rinding: Reward. Where many persons are eng-aged in the search for a dead body, for the recovery of which a reward is offered, and one acting on his own account, independent of others, and for the purpose of securing the reward, succeeds in finding the missing body, he will be entitled to the whole of such reward.</p> <p>3. Question of Pact. Tn a controversy over the right to such reward, or to a portion of it, whether a person acted independently of others and on his individual account, or whether the discovery was the result of the joint action and combined efforts of several, is a question of fact to be tried as all other controverted questions of fact.</p> <p>4. Instruction: Interest. Error can not be predicated upon an instruction by the trial court regarding the time of computation of interest on the sum found due, unless exception is taken to such instruction at the time it is given.</p> <p>5. Deposit of Money in Custodia Curiae. A party, in order to avoid the payment of interest upon an admitted obligation, regarding which there is a dispute as to who is entitled to recover, must bring the money into court to abide its final judgment, unless the court otherwise direct its disposition under the provisions of section 48 of the Civil Code.</p>

<p>Foreclosure Sale: Appraisement: Notice to Owner. The owner of real estate which is about to be sold under a decree of foreclosure is not entitled to notice of the time and place of making the appraisement. See Maginn v. Piolcard, 57 Nebr., 642.</p>

Tried below before Holmes, J. cited Compiled Statutes of Nebraska, 1897, sec. 1717, and argued that this provision of the statute expressly gave the church authority to acquire, hold, enjoy and dispose of all property, real and personal, which the defendant church may acquire by purchase, donation or otherwise, for the purpose of carrying out the intention of • such church corporation.

Error from the district- court of Thayer county. Tried below before Hastings, J. argued that section 3 on page 798 of the Compiled Statutes of 1897 has no application-to the case at bar, or to cases of that character, but it refers entirely to actions brought to recover damages resulting from personal injuries where death ensued.

<p>Passengers on Railroad: Personal Injury: Presumption: Statute: Liability oe Carrier: Lord Campbell’s Act: Statutes in Pari Materia: Fourteenth Amendment.</p>

<p>1. Waiver. Points not argued in this court will he deemed to be waived.</p> <p>2. Confirmation of Judicial Sale: Objections. Objections to the confirmation of a judicial sale will be disregarded on review when not brought to the attention of the trial court.</p> <p>3. Motion to Vacate is No Part of Bill of Exceptions. A motion to vacate a sale, when filed, is a part of the record, and should not be embodied in the bill of exceptions.</p> <p>4. Motion to Set Aside: Certificate of Cleric. A motion to set aside a sale can not be considered, unless certified in the transcript by the clerk of the district court.</p>

<p>Appeal from the district court of Buffalo county. Tried below before Greene, J.</p> <p>cited: Pomeroy, Equity Jurisprudence [3d ed.], 1227, note; 2 Jones, Mortgages, sec. 1540; Peabody v. Roberts, 47 Barb. [N. Y.], 91; Schadt v. Heppe, 45 Cal., 433; Bates v. Ruddielc, 2 la., 423; Hosford v. Johnson, 74 Ind., 479; Jefferson v. Coleman, 110 Ind., 515; Shaw v. Heisey, 48 la., 468; Bolles 'v. Duff,. 43 N. Y., 469; Catterlin v. Armstrong, 101 Ind., 258.</p>

Error from the district court of Knox county. Tried below before Kinkaid, J. argued that the question for the determination of the court is, whether the alternative writ of mandamus, heretofore granted in this case, be made peremptory.

Error from the district court of Sarpy ■ county. Tried below before Kéysor, J. argued in support of motion to dismiss that no motion for a new trial was filed in -the district court, and the only errors complained of are the errors claimed to have occurred during the trial, and on the rendition of the judgment. No bill of exceptions, had ever been settled by the plaintiff in error, so that no question could arise upon a disputed statement of fact.

Tried jbelow before Scott, J. argued that the proposition that punitive or exemplary damages could not be recovered in this state for libel or slander was not disputed; and this rule needed no discussion, except to show that it was violated in spirit and effect by repeated rulings, complained of herein as prejudicial errors; that the plaintiff, being a corporation, could recover no damages except for actual loss of business, and profits directly traceable to the publication…

Error from the district court of Saline county. Tried below before Hastings, J. A mortgage recorded prior to an entry of judgment which was a lien upon the property took precedence of the judgment lien. See 1 Jones, Mortgages, sec. 461; Jaolcson v. Dubois, 4 Johns. [N. Y.], 216; Dunwell v. Bidtoell, 8 Minn., 18; Goodenough v. McCoid, 44 la., 659; Lambert-ville Nat. Bankv. Boss, 13 Atl.

<p>• Error from the district court of Douglas county. Tried below before Soott, J.</p> <p>cited: Billings v. McCoy Bros., 5 Nebr., 187; Dell v. Oppenheimer, 9 Nebr., 454; Gandy v. Pool, 14 Nebr., 98; Sahduñch Mfg. Co. v. Shiley, 15 Nebr., 109; First Hat. Banh v. Carson, 30 Nebr., 104.</p> <p>cited Prall v. Peters, 32 Nebr., 832; St. Felix v. Green, 34 Nebr., 800; Smith v. Wigton, 35 Nebr., 460.</p>

Tried below before Greene, J. It was the duty of the court to examine the return of the sheriff, and to have ascertained if any irregularity appeared therein; and, if any such irregularity appeared, to set aside the sale upon his own motion. See Eelmcr v. Rehm, 14 Nebr., 220. The sheriff can not delegate the exercise of judicial functions to his deputy. See State v. Noble, 118 Ihd., 350; Van Sly he v. Insurance Go., 39 Wis., 390; State v. Jefferson, 66 N. Car., 309.

Tried below before Bates, J. argued that they did not understand the rule to be that, because the verdict might be sustained by sufficient evidence, counsel might resort to the method pursued in this case for the purpose of insuring success. See Cleveland Paper Co. v. Banlcs, 15 Nebr., 20; Ashland Land & Live-Stoclc Co. v. May, 51 Nebr., 474.

Heard below before Oobnish, J. W. W. Morsman, for appellant, argued orally that the act of 1887, creating the board of transportation and defining its powers, is in conflict with section 26 of article 5 of the constitution, which prohibits the legislature from creating any other executive state office than those defined in the constitution, and is also in conflict with section 2 of article 5, which provides that none of the officers of the executive department shall be…

Original application for mandamus. Joel W. West, for relator, argued that the relator was entitled to the writ, citing: Moses, Mandamus, pp. 41, 51; High, Extraordinary Legal Remedies, par. 235, 236.

Error from the district court of Dixon county. Tried below before Evans, J. Was the evidence sufficient to make a prima facie case in favor of the plaintiffs on the issues joined? The board of trade Contracts made in good faith for the future delivery of grain or other commodity, at some time in the future, were not prohibited either by the common law or the statute. See Wolcott v. Heath, 78 111., 433; Pixley v. Boynton, 79 111., 351; Logan v. Musich, 81 111., 415.

Error from the district court of Dixon county. Tried below before Evans, J. argued that the exceptions by the plaintiff in error to the instructions given by the court at the request of the defendant in error were so indefinite that they conld not be considered by this court.

Tried below before Norris, J. cited Hotchin v. Kent, 8 Mich., 526; Trudo v. Anderson, 10 Mich., 367; Western Nat. Bank v. Armstrong, 152 U. S., 346; O’Shea v. Rice, 49 Nebr., 897. There was no waiver of the right to file liens.