Volume 60 — Nebraska Reports

<p>Error to tbe district court for Gage county. Tried below before Letton, J.</p>

<p>Preferring Creditor: Instructions.</p>

<p>1. Judicial Sale: Appraisement: Objections to Confirmation: Attention of Trial Court. Objections to the appraisement of property made for the purpose of judicial sale, or to the confirmation of such a sale, must be brought to the attention of the district court, and its ruling obtained thereon to entitle the same to be considered on review.</p> <p>2. - — ■—■ : Vacation. A judicial sale will not be vacated on the ground that the property was placed too low by the appraisers, unless the actual value so greatly exceeds the appraised value as to raise the presumption of fraud in making the appraisement.</p> <p>3. Owner of Equity: Objections to Confirmation. The owner of the equity of redemption of real estate can not be heard to object to the confirmation of the sale on the ground that prior liens against the property were not deducted by the appraisers in making the appraisement.</p> <p>4. -: Notice. The owner of the real estate about to be sold under a decree of foreclosure is not entitled to notice of the time and place of making the appraisement. Maginn v. Piolcard, 57 Nebr., 642.</p> <p>5. Judicial Notice. Courts of this state will take judicial notice that the city of Omaha is situated in Douglas county.</p>

Tried below before Stull, J. The plaintiff can recover only on the cause of action set forth in his petition. It is not the province of a reply to introduce a new cause of action. Warren t*. Powers, 5 Conn., 373; Durlin v. Fisk, 16 Ohio St., 533; School District v. Caldwell, 16 Nebr., 68; Reinskoph v. Rogge, 37 Ind., 207; Bradley v. Johnson, 45 N. J. Law, 487.

<p>1. Decree for Alimony: Lien Upon Real Estate. A decree for alimony is a lien upon real estate the same as a judgment at law, and is enforceable in like manner.</p> <p>2. Record: Questions Not Presented. Questions not presented by the record before the court for review will not be determined.</p>

Tried below before We stover, J. against plea in abatement, cited:- Civil Code, secs. 456-470; Compiled Statutes, cli. 16, secs. 62-70; Bates’ Ohio Statutes, sec. 5679 et seqBates, PL & Pr., 223. said that no pleading of any nature to the plea in abatement had been served or filed, and the facts stood admitted. Counsel cited: Compiled Statutes, ch. 16, sec. 67; 5 Thompson, Corporations, sec. 6754; 3 Ency. Pl. & Pr., 96; Verein v. FimcJc, 18 la., 473.

Tried below before Hall, J. The defendant in error should have read his policy and informed himself of the obligation resting upon him. German Ins. Co. v. Ileiduk, 30 Nebr., 288; Hankins v. Rock- ■ ford Ins. Co., 70 Wis.,1; Cleaver v. Traders Ins. Co., 65' Mich., 527; Wierengo v. American Fire Ins.

Tried below before Slabaugh, J. The plaintiffs below distinctly fail to allege any damage resulting from the facts alleged, but simply allege another conclusion — that the defendant became and was lable to plaintiffs for the sum of said draft.

Original application for a writ of mandamus. Rehearing of case found on page 503, 59 Nebr. There is no distinction between qn order directing the sale of real estate, and an order confirming such. sale. Kountze v. Erele, 45 Nebr., 288. No demand on corporate officers is necessary, where a demand would be useless.

Tried below before Beall, J. An agreement to pay an illegal rate of interest for past forbearance is without consideration, and can not be enforced. No contract, no matter how binding its terms may be, will bind the promisor to pay usury. Richards v. Konnlze, 4 Nebr., 200.

Tried below before Dickinson, J. Rehearing of case found on page 234, 59 Nebr. This was a transaction between relatives, and the burden of proving actual consideration, and that the transaction was in good faith, was upon McDonald, the purchaser.

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

<p>1. Municipal Corporation: Liability for Acts of Officers: Ultra Vires: Ratification: Trespass: 'Damages. A municipal corporation is not civilly liable for tlie acts of its officers appointed to act for tbe corporation, which, in their nature, are wholly and necessarily outside of the powers of such officers; but such unauthorized acts may be adopted and ratified by other officers of such corporation, acting upon a matter or regarding a subject within the scope of their general powers and authority, although such unauthorized acts, in the manner performed, constituted a trespass; and when so adopted and ratified, the corporation would be liable for the damages occasioned thereby.</p> <p>3. Ratification: Question for Jury. The question of- ratification or adoption of the unauthorized acts of the officers of a municipal corporation, by those having authority to-act in the premises, is a question of fact, and, when properly submitted to a jury, its finding thereon will not be disturbed in this court, if supported by sufficient competent testimony.</p> <p>3. Civil Liability of Corporation: Opening or Widening of Streets: Condemnation. A municipal corporation is civilly liable in damages for the wrongful acts of its officers, which relate to, and arise out of, matters or transactions within the general powers of the corporation, and in respect to which there may be a corporate liability, and if such officers, under the authority of the corporation to open or widen streets or boulevards, commit a trespass upon and seize and appropriate private property for such purposes, without complying with the statute providing for the condemnation of such private property, the corporation is liable in damages therefor.</p> <p>4. Suit for Damages: Dedication Ipso Facto. In a suit for damages for the seizure and appropriation of private property for street or boulevard purposes, a judgment in such action will work a dedication of the property so appropriated to the corporation for the purposes for which it was taken.</p> <p>5. Instructions. An instruction to the jury set out in the opinion not approved, but held not to have misled the jury, and not prejudicial error.</p>

Heard below before Keysor, J. for definition of newspaper, cited Bouvier’s Law Dictionary; Abbott’s Law Dictionary; Century Dictionary; Beecher v. Stephens, 25 Minn., 146; Hull v. King, 38 Minn., 349.

Heard below before Ramsey, J. The right of electors of a school district at an annual meeting to impose a levy under certain circumstances for the construction of a schoolhouse is' conceded to be at once a right and a duty. It is further conceded that, in the exercise of their discretion, they could legally make such a levy although their judgment in doing so might not meet with general approval.

Heard below before Letton, J. When material is furnished for the erection of a dwelling house, upon the separate property of the wife, upon the order or request of the husband, with the wife’s knowledge and consent, the material-man -may have a lien for the material furnished and used in the erection of said dwelling house.

Tried below before Slabaugh, J. The note having been given in pursuance and fulfillment of an illegal contract is invalid, and will not be enforced. The note sued upon in this case represents the consideration of a deal whereby the holder thereof agreed to refrain from bidding at a public statutory sale under a chattel mortgage. Such a note can not be enforced. The court will assist neither party to such transactions, but leave them where it finds them.

Tried below before Dickinson, -J. It is well settled that the objection that the action is barred by the statute of limitations, must be ’raised either by demurrer or answer, or it will be waived. Bturges v. Burton, 8 Ohio St., 215; McKinney v. McKinney, 8 Ohio St., 123.

<p>1. Receiver: Order to Sell Assets. An order directing' a receiver of an insolvent iirm to sell assets other than real estate may not he superseded as a matter of right.</p> <p>2. Supersedeas: Discretion: Mandamus. Mandamus will not lie to control the discretion of a court as to the allowance of a supersedeas resting in its discretion.</p>

Tried below before Westover, J. argued as to change of venue that the constitution guarantees to every person accused of crime an impartial trial, and our legislature has provided a way, when a community has become aroused and strong prejudice created against one so accused, for such a trial in an unprejudiced community.

Tried below before Hall, J. The valued policy law does not apply to this case, because the petition declares for a partial loss only. The amount written in the policy is taken to be the value in cases of total loss only, where it is required to ascertain the value of the insured building in its entirety. In all other cases findings of the value must be supported by competent testimony. Session Laws, 1899, p. 425, ch. 48; Compiled Statutes, ch. 43, secs. 43-45.

Heard below before Fawoett, J. Should the court adhere strictly to the rule laid down in ■Von Steen v. City of Beatrice, 36 Nebr., 421, and later in Harmon v. City of Omaha, 17 Nebr., 548, there is not foot frontage enough represented by the signers to constitute a valid petition.

Heard below before Dickinson, J. IF. TF. Morsman: This court has, in two cases, decided since the decree was entered in the case at bar, settled the question involved. In Home Fire Ins.

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

Tried below before Norris, J. Where one of two innocent parties must suffer a loss by the fraud of another, the loss must fall upon the one whose acts had furnished the means f.or the commission of the fraud. Dinsmore v. Stimlert, 12 Nebr., 438. A deed found on record, such as the one in suit, is presumptive evidence of the liability of the grantee therein named. Heil v. Redden, 26 Pac. Eep. [Kan.], 2; Belmont v. Coman, 22 N. Y., 438, 78 Am.

Heard below before Ramsey, J. The district court below, upon the evidence, certainly allowed excessive alimony in this case. The court will consider the ability of the husband, the estate, the situation of the parties. Small v. Small, 28 Nebr., 843; Cochran v. Cochran, 42 Nebr., 612; McCechie v. McGechie, 43 Nebr., 523.

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

Tried below before Scott, J. Presumptions and intendments will not be indulged in a contempt case to sustain a judgment of conviction. Hawes v. Stale, 46 Nebr., 149; Cooley v. Stale, 46 Nebr., 603; Beckett v. State, 49 Nebr., 210. The averments of the answer must be accepted as conclusive, and they completely exculpate the defendants. Such was the rule laid down in the Percival Case, and followed in subsequent cases.

Error, to the district court for Lancaster county. Tried below before Cornish, J. It was said in Pleuler v. State, 11 Nebr., 547: “To justify a court in pronouncing an act of the legislature unconstitutional, it must be clear and free from reasonable doubt that it is so — not a doubtful and argumentative implication. Or, in other words, a statute should not be held invalid unless it is clearly forbidden by the paramount law.

Tried below before Baker, J. Defendant insisted that the information was bad, because it failed to allege in what capacity the defendant acted in opening the lottéry, whether in the capacity of owner, or otherwise.

<p>School District: Incorporated City Within Its Limits. Unless a school district includes within its limits an incorporated city having more than fifteen hundred inhabitants, it is not subject to the provisions oE siLbdivision 14, chapter 79, Compiled Statutes, 1895.</p>

Heard below before Holmes, J. who was not of counsel in the nisi prins court, argued the case for appellant, and called the attention of the court in his brief to the fact that the property did not sell for two-thirds of its appraised value..

Heard below before Robinson, J. When the cause came to trial, not only was there no attempt to give any credit for the withdrawal value of the shares of stock, but the by-laws, which were as much a part of the contract as the note itself, were not even introduced in evidence; and the note, articles of incorporation and by-laws were abandoned and the case tried upon a claim for so much money had and received, and credit given for payments made thereon.

Heard below-before Stull, J. In ejectment, when the defendant alleges an equitable defense, and prays for affirmative relief, the issue presented thereby is equitable in its nature, and is triable by the court without the intervention of a jury, and such issue should be determined first, for upon the right of the defendant to recover upon his equitable counter-claim will depend the necessity of proceeding with the legal issue. 7 Ency.

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

Heard below before Holmes, J. cited- on separation of causes of action: Schuyler Nat. Banlc v. Bollong, 24 Nebr., 821. The pendency of a suit in a court having jurisdiction of the subject-matter and of the parties is a bar, during such pendency, to the commencement or maintenance of another suit between the parties to such prior action, or their assigns, to a second suit in relation to the same subject-matter.

Heard below before Fawcett, J. E. J. Cornish, for Nebraska Savings & Exchange Bank, appellant, cited Compiled Statutes, 1899, chapter 8, sections 34 and 35, and argued it would not be a proper exercise of the discretion of the court to appoint a receiver on the application of the attorney general and immediately thereafter order a sale of all the assets at auction to the highest bidder. The general intent of the statute should be followed.

<p>Original application for mandamus to compel respondent, a district judge, to settle and allow bill of exceptions.</p>

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

<p>1. Review: Objection Below. On an appeal from an order confirming a sale, tbe court will consider only objections specially made in the district court.</p> <p>2. Error: Presumption. Error in the proceedings of the district court will not be presumed, but must be affirmatively shown.</p>

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

<p>1. Pleading: Pacts. A pleading- should state facts and not mere conclusions.</p> <p>2. Injunction: Petition. A petition for an injunction should disclose with definiteness and particularity the threatened injury, which the court is asked to restrain the defendant from committing.</p> <p>3. -: Remedy at Law. An injunction will not lie to enjoin the breach of a contract where the party complaining has a plain and adequate remedy at law.</p> <p>4. City of Second Class: Electric Light. A city of the second class, having less than 5,000 inhabitants, has no authority to regulate the rates and charges which an electric light company may charge its customers for lights.</p> <p>5. Ultra Vires. In attempting to legislate upon matters.beyond its jurisdiction, the governing body of a city does not represent . the city; does not act as its ag-ent, nor by color of its authority.</p> <p>6. -: Action iron Damages. An action can not be maintained against a city for an act done by its officers outside the actual and apparent scope of their authority.</p> <p>7. Mayor and Council: Injunction. If a mayor and council of a city threaten to exceed their authority and adopt an ordinance which will be prejudicial to the rights of an individual, an injunction, in a proper case, may issue against them, but not ag-ainst the city.</p>

<p>Motion for New Trial: Assignment oe Ereob. A judgment will not be reversed for error of law occurring at the trial, unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling the motion for a new trial.</p>

Tried below before Sedgwick, J. argued: In replevin cases, other than of distress, the ownership is determined by the result of the suit. Pending this, the property was regarded as in the custody of the law,’ though in the plaintiff’s possession. Wells, Replevin, sec. 470; Bruner v. Dyball, 42 111., 34; Bardy v. Keeler, 56 111., 152; Stevens v. Twite, 104 Mass., 332; Miller v. White, 14 Fla., 435; Millilcen v. Selye, 6 Hill, 623.

Heard below before Robinson, J. That appellee had full knowledge of each succeeding step of the proceedings through her agent, can not be questioned, and this fact is clearly established by the evidence in this case. Notice to the agent being notice to the principal, she is bound by it. Pereau v. Frederick, 17 Nebr., 117; Merriam v. Calhoun, 15 Nebr., 569; Wullenwaber v. Dunigan, 30 Nebr., 877.

Tried below before Sedgwick, J. The executor by pleading in the lower, court says the deceased conveyed the homestead through fraud. Had this been true plaintiff in error was entitled to the value of land at the time of being evicted of his title. 2 Warvelle, Vendors, 967, 968; Garverv. Taylor, 35 Nebr., 429. The plaintiff had already invoked the appropriate remedy and recovered for all the injuries complained of in this case.

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

Tried below before Slabaugh, J. The plaintiff’s recourse was upon the replevin bond, and not against the party into whose hands the property replevied finally came. In a replevin suit when a bond is given under the statute, and the property delivered to the plaintiff in the action, the bond takes the place of the property.

Heard below before Frost, J. The police power of the state, as vested in the legislature, is defined in Powell v. Commonwealth, 114 Pa. St., 265. - The act of a lawmaking power interfering with the right of a citizen to follow his or her avocation, is always a questionable exercise of legislative power. Eso parte Whitwell, 98 Cal., 73; 35 Am. St. Rep., 156. The testimony in this case discloses that the board had entered judgment in Hr.

Tried below before Baker, J. Original application for mandamus to compel the district court to obey the mandate of this court heretofore issued herein. Norvad, O. J., .dissenting. Constantine J. Smyth: After the reversal of an erroneous judgment the parties in the court below have the same right which they originally had. Phelan v. San Francisco, 9 Cal., 15.

Tried below before Ramsey, J. Samuel M. Chapmcm: We submit it is an elementary rule of law that to obtain a receiver for mortgaged premises, during foreclosure proceedings, the grounds therefor must be full and clear, and two things must be made to appear: First, that the mortgaged premises are inadequate to satisfy the mortgage debt; second, that the debtors are personally insolvent. Unless these two facts are made to appear clearly, a court of equity will not interfere.

Heard below before Keysor, J. John T. Gathers: The statutes relating to the publication of the delinquent tax list, and the selling of property by the county treasurer, are mandatory, and must be followed literally by the county treasurer, and his failure to comply with the law renders alí the proceedings in relation thereto'invalid. Miller v. Hurford, 11 Nebr., 383; Ledtoich v. Gonnell, 48 Nebr., 172; Smith v. Gity of Omaha, 49 Nebr., 883.

Tried below before Greene, J. W. W. Morsman: I am aware of the case of Pacific Mutual Life Ins. Co. v. Snowden, 12 U. S. App., 704, a suit for the same injury. In that case the insurer seems to have contended that the statements of the assured in the application were warranties, and defeated a recovery in tolo.

<p>Alimony. The amount allowed as permanent alimony should be just and equitable, due regard being had to the rights oí each party, and should be made payable at such time or times as, considering the ability of the husband, the estate of the wife and the situation of the parties, would seem just.</p>

<p>1. Vacancies in Office: Statute. The provisions for filling vacancies, in a law creating an office, control those of general laws as to vacancies.</p> <p>2. -: County Attorney: Appointment. A vacancy in the office of county attorney should be filled by appointment, and the appointment holds until his successor is elected and qualified.</p> <p>3. -: Election. Election for county attorney can be held only in even numbered years. State v. RanMn, 33 Nebr., 266, followed.</p>

Original application for mandamus to require the respondent to draw his warrant for the salary of the deputy food commissioner. Government, in the broadest sense of the term, is frequently employed as synonymous with state or body politic, likewise as applicable to the administration, or persons charged with the execution of the law.

Original jurisdiction. This was a criminal proceeding in contempt, brought on the relation of the attorney general. The offending articles appear in the opinion. The defendants, upon their request, were awarded separate trials, but not as a matter of right. The defendant the Bee Publishing Company answered, admitted the publication; but entered a plea of non possemus, by reason of being a corporation.

Original action in the nature of a quo warranto .asking for judgment of ouster against the fire and police commissioners of the city of Omaha. The ordinary rules of res adjudicata do not apply; (a) Becq-use res adjudicata and estoppel by judgment can not be pleaded against the state appearing in its sovereign capacity; (b) because the decision against the state in quo warranto actions is not final and conclusive.

<p>1. Irrigation. Districts: Bonds. Section 2, chapter 78, Session Laws of 1899, authorizing- irrigation districts, under certain circumstances, to use their bonds, instead of the proceeds thereof, in acquiring or constructing irrigation ditches or canals, is a valid enactment.</p> <p>2. -: Legislature: Sale: Ratification. The legislature may ratify or validate a sale or exchange of district irrigation bonds which was not authorized at the time such sale or exchange was made; and it may provide a method of disposing of such bonds different from the one existing at the time they were voted.</p> <p>3. Election: Notice: Closing Polls. Where it affirmatively appears that an election was fairly conducted; that it was held on the day and within the hours fixed by law; that due notice was given and that a majority of the electors entitled to vote voted in favor of the proposition submitted, the failure to keep the polls open for the entire time required by the statute will be deemed a harmless irregularity.</p> <p>4. Officers: Continuing Duty. Where the officers of a ffwasi-public corporation are required immediately to perform a certain act for the benefit of the corporation, the duty will, ordinarily, be regarded as a continuing one.</p> <p>5. Issuing Bonds: Duty of Officers. A statute which directs, officers of a gwsi-public corporation to immediately issue bonds which have been voted, and which also provides that they “may sell the bonds from time to time” and “before making any sale the board shall, at a meeting, by resolution declare its intention to sell a specified amount of the bonds,” imposes upon such officers a duty which continues until such provision is complied with.</p>

<p>1. Order for Money: Equitable Assignment. An order for the payment of money which is not immediately effective does not operate as an equitable assignment.</p> <p>2. -: Rights oe Garnishing Creditors. And if, before such order becomes effective, the fund against which it is directed is seized by attachment or garnishee process, the rights of the ■attaching or garnishing creditor are superior to those of the person folding suck order,</p> <p>3. Check: Appropriation or Fund. A check drawn upon a particular fund is an appropriation of so much of the fund as may be necessary to pay the check.</p> <p>4. -: In Futuro: Vested Risht. A check directed against a fund to be afterwards created by depositing money in bank does not vest in the payee of the check any right to, or control over, such money until it has been so deposited.</p>

<p>1. Reversal of Judgment: Restitution. Upon the reversal of a judgment which has been executed it is the duty of the court to compel restitution.</p> <p>3. Action to Recover: Set-Oee. In an action to recover back money obtained by executing a judgment, which was afterwards reversed, the defense of set-off is not available.</p>

Ekkok to the district court for Lancaster county. Tried below before Tuttle, J. The view is evidence. Carroll v. State, 5 Nebr., 35; Omaha & R. 7. R. Go. v. Walicer, 17 Nebr., 432. Market value of real estate is defined as the price that it will command when the purchaser is willing to buy and the owner to sell. The measure of damages, and the subject of inquiry, in a condemnation proceeding is the “market value” of land.

Tried below before Estelle, J. Courts will not declare an act unconstitutional, unless it appears to be so beyond a reasonable doubt. Pleuler v. State, 11 Nebr., 547. But is it essential that there should be affirmative proof that the house journal ever did contain a record of concurrence? Hull v. Miller, 4 Nebr., 505; State v. Moore, 37 Nebr., 13; State v. Liedllce, 9 Nebr., 490.

<p>1. Forfeiture: Policy oj? Insurance. Forfeitures are looked upon by the courts with ill-favor, and will be enforced only when the strict letter of the contract requires it; and this rule applies with full force to policies of insurance.</p> <p>2.-: Construction. Courts will construe policies of insurance more strongly against the party by whom the contract has been drafted, and who has had the time and opportunity to select, with care and ing-enuity, and with a view to its own interests, the language in which the contract is couched.</p> <p>3. -: Condition. Where it is conditioned in a policy of insurance “That the assured shall take an inventory of the stock hereby covered at least once a year, and shall keep books of account correctly detailing purchases and sales of said stock, and shall keep all inventories and books securely locked in a fire-proof safe, or other place secure from fire in said store, during the hours that said store is closed for business. Failure 1o observe the above conditions shall work a forfeiture of all claims under this policy,” held, that such provisions should be construed conjointly, and that, to work a forfeiture of the policy, there must be a failure to perform all the conditions named, and not any particular one of them.</p>

<p>1. Fire Insurance Policy: Warranty: Itemized Inventory: Books of Account. Where there was attached to, and made a part of, a policy of insurance a warranty providing, in substance, that the assured would take an itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of the policy, one should be taken in detail within thirty days of the issuance of the policy; and, second, that the assured will keep a set of books of account from date of inventory, as provided for in the first section of this clause, and during the continuance of the policy; and the evidence showing that no inventory had been taken within twelve months prior to the issuance of the policy, held, that the assured was not required to keep books of account until the taking of the inventory provided for, and that thirty days were given to perform that act, and where a fire occurred in less than thirty days from the issuance of the policy, no breach existed in either of the conditions in said warranty providing for the keeping of books of account and. their preservation in a fireproof safe, or other place secure from fire, in the building containing' the insured stock of goods.</p> <p>2. -: Loss: Defense. Where, in a controversy over the liability of an insurance company under a policy of insurance after a loss has occurred, certain grounds are assigned as a reason for denial of liability, the company, after litig'ation has begun, can not be heard to urg'e other and additional grounds as reasons for their refusal to pay the loss sustained.</p> <p>3.. Warranty Clause: Inventory. Where the warranty clause provided for the taking of an inventory within thirty days after the date of the policy of insurance, if one had not been taken within twelve months prior to the issuance of such policy, and that the assured would keep such inventory and also the last preceding inventory, if such has been taken, in a fire-proof safe, or other place not exposed to fire, in the store building', and- au inventory had not been taken within twelve months prior to the issuance of the policy, held, that the clause referring to “the last preceding inventory, if such has been taken,” did not apply to inventories taken more than twelve months prior to the issuance of the policy of insurance.</p>

<p>1. Removal of Sclioolliou.se: Injunction. In an action by injunction, brought to restrain officers of a school district from removing to another location a schoolhouse situated in said district, the right of plaintiffs to maintain the action is established, if it ap-</p> <p>pear that they are resident taxpayers of the district, and the proposed removal, if unauthorized, would involve a waste and an unwarranted expenditure of public funds; and no other or greater interest need be shown.</p> <p>3. Electors: Qualification. Under the provisions of section 4, subdivision 2, chapter 79, Compiled Statutes, 1899, defining the qualifications of voters at a meeting of rhe voters of a school district as follows, “Every person, male or female, who has resided in the district forty days and is twenty-one years old, and who owns real property or iiersonal property that was assessed in the district in his or her name at the last annual assessment, in the district, * * * "shall be entitled to vote at any district meeting-,” held, that the wife of a person owning-a homestead on which the family were residing- was not, by reason of her homestead interest, or “estate of homestead” in said land, an owner of real estate in said district within the meaning- of said section.</p> <p>3. -: Majority Vote. Where the statute provides that a “schoolhouse site may be changed to a point nearer the geog'raphical center of the district by a majority vote of those present,” held, that of those present at such meeting- at least a majority thereof must cast their votes in favor of the proposition to legally adopt it.</p> <p>i. Errors: Review: Appear. Alleged erroneous rulings in the trial of a case in the court below, regarding the rejection or admission of evidence, will not, in proceedings by appeal, be reviewed in this court. Ainsworth v. Taylor, 53 Nebr., 484, followed.</p>

<p>Stare Decisis: Forfeiture: Policy of Insurance: Construction: Condition.</p>

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

<p>1. Answer: Reply: Implied Admission. All material facts pleaded in an answer, not denied by a reply, must be taken as true.</p> <p>2. Highway: Damages: Time. Damag'es for lands appropriated for a highway accrue at the date of the condemnation proceedings, without regard to the time when the road is actually opened.</p>

<p>1. Finding: Conflicting Evidence. A finding based upon conflicting evidence, will not be disturbed on review.</p> <p>2. Threatened Continuing Trespass: Injunction. The destruction of a fence, and threatened repetition thereof by a trespasser as often as the fence should be replaced, entitles the owner to relief by injunction against the invader, even though the latter may not be insolvent.</p> <p>3. Description of Land: Metes and Bounds. A definite description of lands in a deed designating the initial point, courses and distances, and followed by a statement of the number of acres conveyed, passes the quantity of land embraced in the specific boundaries, though greater or less than the number of acres stated.</p> <p>4. Description in Deed: Intention of Parties. In a suit between others than original parties, the description in a deed, if unambiguous, governs, and the intention of the parties to the conveyance can not take the place of calls.</p> <p>5. Possession: Title by Prescription: Tacking. Possession can not be tacked to make out title by prescription where the adverse occupant did not come in under another, and the deed under which the last occupant claims title does not include the land in dispute or show any privity between him and his grantor in regard thereto.</p>

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

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

<p>1. Appeal: Supebsedas Bond. An appeal to this court does no.t operate as a stay of proceedings, unless the appellant shall execute a supersedeas bond within twenty days from the entry of such decree, conditioned as required by section 677 of the Code of Civil Procedure.</p> <p>2. Appraisement: Objections: Time. All objections to the appraisement of property, to be available, must be made before the sale.</p> <p>3.-: Copt: Filing with Clebk. A copy of the appraisement is required to be filed with the clerk of the district court before the property is advertised for sale.</p>

Tried below before Holmes, J. Three classes of crimes at common law rendered the prepetrator infamous. They were treason, felony and crimen falsi. The crime charged in the information in this case clearly falls within the definition crimen falsi. The following definitions have been given by the courts and law writers of crimen falsi: “The crime of deceiving or falsifying.

<p>Error to the district court for Frontier county. Tried below before Norris, J.</p> <p>on tbe question of venue, cited: Constitution, Bill of Rights, sec. 11; Olive v. Slate, 11 Nebr., 1; State v. Crinlclaw, 40 Nebr., 759.</p> <p>on proof of corpus delicti, cited: McCulloch v. State, 48 Ind., 109; People v. Palmer, 109 N. Y., 110; Gray v. Commonwealth, 101 Pa. St., 380; Marion v. State, 20 Nebr., 233. As to statements of deceased being part of res gestee: Hunter v. State, 40 N. J. Law, 537; Commonwealth v. Werniz, 29 Atl. Rep. [Pa.], 272; State v. Thompson, 132 Mo., 322; State v, Vincent, 24 la., 571; Lambert v. People, 29 Mich., 71; Driscoll v. People, 47 Mich., 413. As to incumbering the record with repeated instructions: Olive v. 'State, supra; Binfielcl v. State, 15 Nebr., 489; Comstock v. State, 14 Nebr., 208; Kerkow v. Bauer, 15 Nebr., 167; Kopplekom v. Huffman, 12 Nebr., 100.</p>

Tried below7 before Graves, J. Writ of error by the state. The term “adultery,” as used in the Criminal Code of this state, is properly defined .as “voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” Bouvier’s Law Dictionary, Rawle’s revision, vol. 1, title “Adultery”; 2 Wharton, Criminal Law, sec. 1721a; Bailey v. State, 36 Nebr., 808.

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

Original proceeding in mandamus to compel tlie respondent, a district judge, to fix the amount of the penalty in a supersedeas bond on an appeal from confirmation of a sale of realty.

<p>1. Personal Injury: Contributory Negligence: Question of Pact. While the plaintiff, an old man, seated on a load of baled hay, was driving a spirited team down a steep hill he encountered the stump of a telephone pole which stood in the middle of the traveled road and, being thrown to the ground, was severely injured. At the time of the accident he was endeavoring to prevent the wagon from pressing- upon the horses and was not thinking of the obstruction in the highway. Held, That whether he was, under the circumstances, guilty of contributory negligence, was a question of fact for the jury.</p> <p>2. -: Conflicting Evidence: Verdict. In an action for damages resulting from an injury caused by an obstruction in a road over which plaiutiff was driving-, a verdict in favor of the plaintiff, based upon conflicting- evidence, will not be disturbed.</p> <p>3. Evidence: Verdict. Evidence examined, and found to support the verdict.</p> <p>4.-: Error Without Prejudice. A judgment will not be set aside for error in admitting- immaterial evidence where it appears that such evidence had no harmful or mischievous tendency.</p> <p>5. Error: Tender of Proof. A party, to avail himself of an error of the court in refusing- to permit a witness to answer a question, must make an offer to prove the facts sought to be elicited.</p> <p>6. Motion for New Trial: Newly-Discovered Evidence: Diligence. It is not error to overrule a motion for a new trial grounded on newly-discovered evidence, where it 'is not shown that the moving- party, before the trial, used due diligence to procure the evidence which he claims to have discovered since the trial.</p> <p>7. -: Affidavits: Practice. A motion for a new trial on the ground of newly-discovered evidence should, ordinarily, be supported by the affidavit of the party making- the application, as well as by the affidavit of his attorney; and the affidavit of the new witness should also be produced, or its absence satisfactorily accounted for.</p>

<p>1. Ejectment: Equitable Defense. A defendant, in answer to a petition in ejectment, may show, by his pleading-, that he is the equitable owner of the property and entitled to affirmative relief.</p> <p>2. Pleading: Reply: Denial. A reply which states that an answer does not state facts sufficient to constitute a defense to plaintiff’s cause of action stated in his petition is not a denial of the matters pleaded in the answer.</p> <p>3. Bill of Exceptions: Presumption. In the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined.</p>

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

<p>1. Irrigation Ditch: Interference: Injunction. Injunction is the appropriate remedy to prevent a party from obstructing, or unlawfully interfering with, an irrigation ditch of which the owner is in actual possession.</p> <p>2. Evidence. Evidence examined, and found to sustain the judgment.</p>

<p>Error to the district court for Lancaster county. Tried below before Frost, J.</p> <p>Norval, O. J., dissenting.</p>

<p>1. Verdict: Excessive Damages: Evidence. Evidence examined, and verdict of jury for plaintiff in the sum of $950.29 found to be excessive, and the judgment thereon not supported by the evidence.</p> <p>2. -: Remittitur. Leave given plaintiff, defendant in error, to file, within forty days, a remittitur in the sum of $96.59, in which case judgment with costs is affirmed.</p>

<p>1. Mandamus: Assessor: Party. In a proceeding to ■ compel an assessor to assess property for taxation at its fair value it is unnecessary to bring in any taxpayer of the taxing district as a party.</p> <p>2. Duty of Assessor. Except as otherwise provided by law the assessor is required to value property for taxation at its fair value.</p> <p>3. Uniform Valuation. The valuation of property for taxation must be uniform.</p> <p>4. Pleading: Pacts: Conclusions. Ultimate facts should be pleaded and not mere legal conclusions.</p> <p>5. Mandamus: Relator: Private Person. A private individual, not shown to be either a citizen or to be beneficially interested in the enforcement of the laws, can not invoke mandamus to compel an officer to perform a public duty.</p> <p>6. -. Mandamus will not issue where the law affords a plain and adequate remedy.</p>

<p>Verdict: Interest. Interest is allowable on the amount found due by a verdict from the date of its rendition to the time judgment is entered thereon.</p>

Error from the district court of Lancaster county. Tried below before Cornish, J. Submitted on motion by defendant in error either to dismiss proceedings in error, or affirm the judgment of the court below or vacate the supersedeas. The action of forcible entry and detainer is purely statutory and the statute must be strictly complied with.

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

Original proceeding in contempt. See pp. 283-292 for evidence and argument. Defendant Rosewater answered, denying the charge in toto and entering a several plea of not guilty.

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

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

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

<p>1. Evidence: Binding: Mortgage Debt: Payment. Evidence examined, and held sufficient to sustain the finding that the mortgage debt was paid in full to the duly authorized agent of the owner of the note and mortgage.</p> <p>2. Testimony of Deceased Person: Interested Witness. In case evidence of a person deceased shall have been taken and read in evidence by his representatives in regard to any transaction or conversation, then an interested witness may be examined in regard to the facts testified to by such person deceased.</p> <p>3. Release of Mortgage: Penalty: Demand: Condition Precedent. Before a mortgagor can recover the penalty prescribed by section 29, chapter 73, Compiled Statutes, for failure to discharge a real estate mortgage after full payment thereof, a prior demand upon the mortgagee or his agent for such release or discharge must have been made. Such demand is a condition precedent to a right of action.</p>

<p>1. Appraisal of Real Estate: Consent to Sustaining oe Motion: Estoppel. A plaintiff, by consenting to the sustaining of defendant’s motion to vacate an appraisal of real estate, is not thereby estopped from denying that a subsequent appraisal is too low, whereby the same property was valued at one-half the sum fixd by the first appraisers, where it is not shown that there had been no depreciation in the market value of the property after the making of the first appraisement.</p> <p>2. Authority of Deputy Sheriff. A deputy sheriff may act for his principal in appraising' property for sale under a decree of foreclosure.</p> <p>8. Sale Under Vacated Appraisal. Property can not be offered for sale, or sold, under an appraisement which has been set aside by the court.</p> <p>4. City Lots: Separate Sale: Notice. Under a decree of foreclosure which requires that city lots shall be sold separately it is not necessary that the published notice of sale should specially state that the lots will be offered for sale separately, when such notice contains the information that the lots will be sold in the manner provided by the decree.</p> <p>5. Second Appraisement. An officer is not required to make a second appraisement of real estate until he has twice offered the property for sale.</p>

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

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

Heard below before Holmes, J. The trial judge is the proper judge of the. weight and credibility of tile evidence. Worthington v. Worthington, 32 Nebr., 334.

<p>1. Foreclosure of Real Estate Mortgage: Authority oe Sheriee to Sell: Decree: Order. In an action to foreclose a real estate mortgage the sheriff’s authority to sell the mortg'aged property is derived from the decree of foreclosure and not from the order of sale issued by the clerk of the court.</p> <p>2. Judicial Sale: Ratification. It is ordinarily the duty of a court, where a judicial sale is made in conformity with its decree, to ratify such sale.</p> <p>3. Defective Process: Seal of Court. A process, defective for want of the seal of the court out of which it issued, may be cured by amendment.</p> <p>4. Authority of Deputy Sheriff. A deputy sheriff may perform, for his principal, any act necessary to be done to carry into effect a decree for the sale of property.</p>

<p>1. Res Ad judicata: Subsequent Proceedings. The determination of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, ordinarily, will pot be re-examined ip a subsequent appellate proceeding.</p> <p>2. Official Bond: Judgment Against Officers: Evidence Against Sureties. A judgment against an officer is prima facie evidence against his sureties when sued upon an official bond, both actions being grounded upon the same alleged delinquency.</p> <p>3. Conclusive Evidence: Agreement to Abide. Such an adjudication is conclusive evidence of the liability of the sureties only in case they agreed to abide by any judgment that might be rendered against their principal.</p> <p>4. Cases Overruled. The second point of the syllabus to Thomas v. Markmami, 43 Nebr., 823, and the first point of the syllabus to Lewis v. Mills, 47, Nebr., 910, are overruled.</p> <p>5. County Judge: Embezzlement: Official Misconduct. A county judge who receives money in his official capacity and converts the same to his own use, is guilty of official misconduct.</p> <p>6. Trover: Pleading: General Denial: Evidence: Payment: Accord and Satisfaction. In -an action grounded upon an alleged conversion of money, neither payment nor accord and satisfaction can be- shown under» a general denial.</p> <p>7. -: -: -: Date of Conversion. In an action against the sureties on an official bond for money converted by their principal during his official term, where the answer is a general denial, it is error to exclude evidence tending to show the date when the conversion actually occurred.</p> <p>8. Excessive Judgment. Remittitur. Judgment rendered for too large a sum and plaintiff allowed to remit excess.</p>

Tried below before Holmes, J. The reduction of the rent of J. H. Harley was a proceeding utterly void. It was the act of a judge at chambers. The judges of the several district courts as such have no inherent authority at chambers whatever, but only such as the statutes give them. Broume v. Edwards & MeCollough Lumber Oo., 44 Nebr., 361. The statutes enumerate ten purposes for which a district judge may sit at chambers within his district.

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

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

<p>1. Homestead: Abandonment: Question oe Fact. Whether one has actually abandoned a homestead is a question of fact to be determined from all the evidence pertinent.</p> <p>2. Finding of Fact : Review. A finding of fact by a trial court will not, on appeal, be overturned unless clearly erroneous. .</p> <p>3. Evidence: Judgment. Evidence examined, and. found to sustain the judgment of the trial court.</p>

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

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

Tried below before Thompson, J. There is no law authorizing or requiring that the county judge should turo over tg bis successor im office said reports, and wherever the legislature has designed that any books furnished to any officer should be turned over to his successor in office, it has said so in express terms. See Compiled Statutes, 1895, ch. 47, sec. 4; Code of Civil Procedure, sec. 1089.

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

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

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

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

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

<p>1. Reason for Conduct: Estoppel by Declaration. Where a party gives a reason for his decision and conduct touching a matter involved ip controversy, ho is estopped, after litigation has he-gun, from changing his ground and putting his conduct upon another and different consideration. Ballou v. Shenoood, 33 Nebr., 666, followed.</p> <p>3. Reason for Rule. The right to invoke the above rule rests upon proof of the conduct of the parties before litigation is begun, and is not rendered unavailable because other issues are raised by the pleadings.</p> <p>3. Statute: Mandamus: Pleading. Under section 653 of the Code, regulating mandamus, the plaintiff may on the trial avail himself of any valid objection to new matter contained in the answer as to its sufficiency, or by proof in denial or by way of avoidance.</p> <p>4. Contract: Terms: Evidence Aliunde. A contract will generally be construed solely by reference to its own language and terms; but where the language is uncertain or ambiguous, other evidence may be considered, not for the purpose of contradiction, but to explain the uncertainty or ambiguity.</p> <p>5. -: -: -: Construction: Conduct oe Parties. Where both parties to a contract, regarding which there may be doubt or uncertainty as to a proper construction, by their actions under and with reference to it, and with knowledge of its terms, have given to such contract one and the same construction, it is generally a safe rule to adopt such construction.</p> <p>6. -: Individual Signature: Agent: Principal. A contract, even though signed by the agent individually, will be held to be the contract of the priniepal, if it appear by its terms that it was intended and executed as the contract of the principal.</p> <p>7. Res Adjudicata: Question Expressly Decided: Questions Necessarily Involved. A question once decided by this court in the trial of a ease will be held to be the law of the case during its future course of procedure, and will not be overturned unless manifestly incorrect. This rule applies, not only to points expressly decided, but to all questions presented in the record and necessarily involved in the decision rendered.</p> <p>8. Questions of Daw: Questions oe Pact. The above rule applies to questions of law and not of fact, where the conclusion reached is based upon testimony materially different.</p> <p>9. Claim Against County: Designation oe County: Irregularity. A claim in favor of a party for property sold to a county under a contract with the county, wherein it is recited that the property was sold to the county commissioners of such county as per agreement, held to be a claim against the county, and the failure to designate the county by name as debtor was only an irregularity which did not affect the validity of the claim,</p> <p>10. Delivery is Filing. A claim is filed when delivered to the county . clerk to be acted upon by the county board, even though the clerk fail to indorse upon such claim the fact and time of the filing thereof.</p> <p>11. Power of Board: Statute. The power and jurisdiction of the county board to act upon claims is derived from section 23, article 1, chapter 18, Compiled Statutes, 1899, and not from section 37 of said chapter.</p> <p>12. Statute: Jurisdiction. Section 37 regulates the grant of power and mode of procedure in the allowance of claims against the county, and the failure to observe its provisions does not deprive the commissioners of a county of jurisdiction to act upon claims against the county.</p> <p>13. Evidence: Finding. Evidence examined, and found not to support a finding by the trial court that one C. M. Wickersham was doing business as, and under the assumed name of, S. L. Wickersham.</p> <p>14. Bes Adjudicata. Former holding of this court as to the agency of S. L. Wickersham adhered to.</p>

<p>1. Error: Parties: Privies: Petition in Error. Only parties to a judgment, or their privies, can •successfully prosecute a petition in error.</p> <p>3. Finding: Conflicting Evidence. A finding based on evidence fairly conflicting will not be disturbed on review.</p> <p>3. Reversal: Witness: Improper Question: Permission to Answer: Error. A reversal can not be based upon tlie permitting of a witness to answer an improper question where the answer was not unfavorable to the complaining party.</p>

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

<p>1. Contract in Restraint of Trade: Public Policy. Contracts which impose unreasonable restraints upon the exercise of any business, trade or profession contravene sound public policy.</p> <p>2. -: -: Fbotection to Purchaser. Partial restraints upon the exercise of any business, trade or profession are not unreasonable when they are ancillary to an actual purchase of property, made in g-ood faith, and are apparently necessary to afford fair protection to the purchaser.</p> <p>3. -: -: Monopoly. But, if it appears that the main purpose of such 'agreement is to secure a monopoly, and that the purchase of the property is a mere incident or means to that end, it is within the rule applicable to ordinary combinations in restraint of trade and will not be enforced.</p> <p>4. Appellate Court: Subsequent Appeal: Review oe Former Appeal. It is not permissible for an appellate court, on a subsequent appeal of a cause, to reconsider and correct an erroneous decision made by it in the same case on a former appeal.</p> <p>5. Res Adjudicata: Obiter Diota. The rulings upon the first appeal settle definitely, for the purposes of the litigation, all questions adjudicated; but mere expressions of opinion respecting- matters not actually involved in the decision have no binding- force.</p> <p>6. Deed: Covenant: Public Policy. A covenant in a deed for the exchange of hotel property by which the grantee in one deed agrees that for a period named he will not use the property acquired by him for hotel purposes, is not void as being contrary to public policy.</p> <p>7. Franchise: Innkeeper: Duty to Public. The right to run a hotel is not a franchise. An innkeeper is not clothed with any authority from the state, and he owes no duty to the public except to render to all who come, and are fit.to be received, fair accommodations at fair prices, while he sees fit to continue in business.</p> <p>8. Evidence: Admitted Facts. It is not necessarily prejudicial error to receive evidence to prove admitted facts.</p> <p>9. Covenant: Condition: Waives: If a party waive a covenant conditionally and the condition is broken, the waiver ceases to be effective for any purpose.</p> <p>10. Evidence: Issue: Reversible Eeror. The reception of evidence which responds to no issue in the case, but which is incapable of mischief, is not reversible error.</p> <p>11. Best Evidence. The best evidence of which a case is in its nature susceptible is always admissible to prove the fact in issue.</p> <p>12. Compensatory Damages: Gains: Losses. A party may recover for gains prevented as well as for losses sustained when such damages are not only certain, but are the natural and probable result of the wrong complained of.</p> <p>13. Witness: Direct Examination: Tender. A party to avail himself of an error of the court in refusing to permit a witness on direct examination to answer a question, must make a formal offer to prove the fact sought to be elicited.</p> <p>14. Evidence: Error. It is not error to refuse to receive evidence of facts admitted by the pleadings.</p>

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

<p>1. Res Adjudícala: Review: Subsequent Appellate Proceedings. The determination of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case and will not be re-examined in a subseuqent appellate proceeding.</p> <p>3. Widow: Dower: Statutory Bar. A widow is entitled to dower in the lands owned by her intestate husband at the time of his death, unless barred therefrom in the manner prescribed by the statute.</p> <p>3. Baker’s Decedent Law. The fact that the husband died after “Baker’s Decedent Law” (Session Laws, 1889, ch. 57) was adopted and before it was adjudged to be unconstitutional, does not in any way affect the widow’s right to dower.</p> <p>4. Curative Act: Its Purpose. The purpose of the curative act of 1895 (Session Laws, 1895, ch. 33) was to legalize findings, orders, judgments and decrees made under the provisions of the decedent’s law which was held to be unconstitutional in Trvmble v. Trmible, 37 Nebr., 340.</p>

<p>1. Order of Probate Court: Statute: Vacation oe Order: Allowance or Claim: Vacating Order. An order of a probate court, entered under the provisions of subdivision 3 of section 602 of the Code of Civil Procedure, vacating an order allowing a claim against an estate made at a prior term, is appealable, and from it an appeal may be taken to the district court.</p> <p>2. Statute: Probate Matters: Appeal: Proper Party. By section 42, chapter 20, Compiled Statutes, 1899, in all probate matters an appeal is allowed from any final order, judgment or decree of the county court to the district court by any one against whom the order, judgment or decree is made, or who is affected thereby.</p> <p>3. Judgment: Proceeding to Vacate: Statute. Whether or not a proceeding to vacate a judgment or order comes within the provisions of subdivision 3 of section 602 of the Code is to be determined from the grounds upon which the application is based as disclosed by the record.</p> <p>4. Entry: Mistake: Neglect: Omission: Judge Acting as Clerk. Under the evidence, held that the entry, by the probate judge, acting- as his own clerk, on the records of the probate court, of the judgment sought to be vacated was not an act of “mistake, neglect or omission of the clerk,” within the meaning of said subdivision 3, section 602.</p> <p>5. Irregular Judgment. An irregular judgment is one which is rendered contrary to the course of law and the practice of the courts.</p> <p>6. Judgment: Fraud: Remedy: Petition: Summons: Limitation. Where it appears from the records that the ground for vacating a judgment, is that it was fraudulently obtained, by reason of which a party was prevented from defending, the remedy is by instituting proceedings to vacate the judgment, by filing a petition duly verified and having- summons issued thereon, such action to he begun within two years from the date of the judgment. A motion filed to vacate the judgment on the ground of irregularity will not lie after the lapse of the time mentioned.</p>

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

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

Heard below before Holmes, J. It is well settled that the doctrine applicable to voluntary payments has no application where the payment is made to redeem one’s land from a mortgage or incumbrance. Rardin v. Walpole, 38 Ind., 148; Neioell v. Hurlburt, 2 Yt., 351; Platt v. Squire, 5 Cush. [Mass.], 551; Snowden v. Dunlavey, 11 Pa., St., 522.

<p>1. Information: Language oe Statute. Where -a statute states the elements of a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute.</p> <p>g. -: Time. It is not essential, in-an information or indictment charging burglary, to state the particular hour of the night at which the crime was committed.</p> <p>3. -: Filing During Term: Discharge. Where no information ' or indictment is filed against a defendant, charged with the commission of a crime, during the term at which he was held to answer, his detention is unlawful and he is entitled to be discharged.</p> <p>4. -: Subsequent Term: Trials: Motion in Arrest oe Judgment. But, if at a subsequent term o'f the court, an information is hied and defendant pleads not guilty, the court has power to try the issue raised; ‘and after verdict of conviction has been rendered, it is not error to deny a motion in arrest of judgment.</p> <p>5. Charge of Court. It is not error for the court in a criminal case to say to the jury as a part of its charge: “You are not at liberty to disbelieve as jurors if from all the evidence you believe as men. Your oatb imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.”</p> <p>6. Burglary: Night-Time. The fact that a building was feloniously broken and entered between the hours of 6:30 P. M. and 9 P. M. on March 29 does not show, with the requisite degree of moral certainty, that the crime charg-ed was committed in the night season.</p> <p>7. Verdict: Conjecture. A verdict resting upon conjecture can not be permitted to stand.</p>

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

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

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

<p>1. Peremptory Writ of Mandamus. A peremptory writ of mandamus will issue only when it is made to appear that the law specially enjoins .upon the defendant the performance of the act which it is sought by the writ to compel.</p> <p>S. Banks: Depositories oe County Funds: Authority oe Commissioners: Treasurer. A board of county commissioners is without authority to make one of two or more banks, designated as depositories of county funds, a preferred depository, in which county funds are to be first deposited by the county treasurer • until the sum of such deposit shall reach the amount allowed under the law and depository bond of such bank.</p> <p>3. County Treasurer: Autiiobity: Depository Act. A county treasurer is the custodian of the funds of his office and it is for him, within the provisions and restrictions of the depository act, to deposit and withdraw, as the requirements in the discharge of his official duties shall make necessary, all the funds coming into his custody as such treasurer.</p> <p>4. Duty of County Board: Limit of Autiiobity. When a county board has acted upon the propositions of different banks applying- to be made depositories of county funds, and approved or rejected the bonds presented for that purpose, its powers and authority in the premises cease, and it is without power or authority to control the action of the county treasurer, and direct in which of the depositories, or in what amount, the depositing of county funds shall be had; and when an attempt is made to designate one bank as a preferred depository, such action is a nullity, and without force or effect.</p>

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

Heard below before Dickinson, J. This was an action of injunction brought by Barbara Kerner against John WT. McDonald, as sheriff, Henry Held and August Kerner, and was tried on the petition of Barbara Kerner, and answer and cross-petition of August Kerner, setting up the same facts as the petition, and general demurrers by each of the other defendants to each of said pleadings.

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

Tried below before Cornish, J. It is claimed by the defendant in error that the act creating the Girls’ Industrial School at Geneva is unconstitutional. This ■ position is untenable. As has been often repeated, all acts of the legislature are presumed to be constitutional, and no act will be declared invalid unless plainly and irreconcilably in conflict Avith the constitution.

<p>State Industrial School: Statute: Constitutional Law. That part of section 5, article 1, chapter 75, Compiled Statutes, which provides for the commitment to the state industrial school of any boy or girl under the age of eighteen years “who for want of proper parental care is growing up in mendicancy and vagrancy, or is incorrigible,” contravenes section 12, article 8, of the constitution, and is void.</p>

<p>1. Employee of Railroad Company: Acceptance oe Damage: Release. An employee of a railroad company who has accepted from it damages for injuries sustained can not recover benefits for such injury from the relief department of such corporation under an agreement of membership releasing the company from liability in case of such acceptance.</p> <p>3. Stare Decisis. OMeago, B. & Q. R. Oo., v. Bell, 44 Nebr., 44, and OMeago; B. <& Q. R. Go. v. Ourtis, 51 Nebr., 443, followed.</p>

Original application for mandamus to require the respondent to issue a warrant to the relator for certain money allowed her as trustee of the Home for the Friendless.

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

<p>Error to tbe district court for Pierce county. Tried below before Robinson, J.</p>

<p>1. Peremptory "Writ of Mandamus: Notice: Public Officers. The statute authorizing issuance of a peremptory mandamus without notice has reference to cases in which the refusal of a public officer to discharge an official duty is so obviously inexcusable and the necessity for prompt action so imperative, that notice must be dispensed with in order to prevent a failure of justice.</p> <p>3. -: -: Private Corporation. But while it is competent for the legislature to authorize courts in a proper case to coerce official action without notice and an opportunity to the recalcitrant to be heard, no such power can be exerted against a private corporation or the officers by which its functions are performed.</p> <p>3. Judicial or Governmental Power: Notice: Day in Court. No person can be deprived of his property or other valuable right by the exercise of judicial or other governmental power, without notice to such person and reasonable opportunity to be heard in his defense.</p> <p>i. Pleading: Mandamus: Verified Petition: Action oe Trial Court. When the trial court has treated a verified petition for a writ of mandamus as a pleading, it will be so considered by this court when the case is brought here for review.</p> <p>5. Mandamus: Adequate Remedy at Law. The writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.</p> <p>6. Motion for Hew Trial. A motion for a new trial is proper only where there has been a trial of an issue of fact on the pleadings.</p> <p>7. Pinal Judgment: Review. A final judgment based upon a pleading defective in substance may be reviewed without a motion for a new trial having been filed and ruled upon.</p> <p>8. Error: Proper Party. Any party prejudiced by a*judgment rendered against him may, by taking the proper steps, have the same reviewed.</p>

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

<p>1. Marshalling Securities: Creditors: Common Debts. The doctrine of marshalling securities applies only to cases in which two or more creditors are seeking to satisfy their claims out of property of the same common debtor.</p> <p>2. Creditor: Common Debtor. Where a creditor has two common debtors, not sustaining to each other the relation of principal and surety, one of them can not claim exemption from liability on the ground that- the other ought to be first sued and compelled, if possible, to satisfy the debt.</p>

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

<p>Ekrok to the district court for Gage county. Tried below before Letton, J.</p>

<p>1. Summons: Issuance: Service: Waiver. Ordinarily a defendant may waive tlie issuance and service of summons in an action, and enter a voluntary appearance in the case, such appearance being equivalent to actual service of summons in the manner provided by statute.</p> <p>2.-: -: -: -: Authority of Attorney. Au attorney of a municipal corporation, without authority therefor, can not waive the issuance and service of summons and enter the voluntary appearance of the defendant in an action.</p> <p>3. Service of Municipal Corporation: Statute. The service of process upon a municipal corporation, as provided by section 57, chapter 14, article 1, Compiled Statutes, while required to be served upon the mayor or chairman of the board of trustees, or, in his absence, upon the clerk, or, in his absence, by leaving a certified copy in the office of the clerk, is upon the corporation in its corporate capacity, and not upon the individual.</p> <p>4. —;-: Waiver: Authority oe Chairman: Board oe Trustees. A chairman of the board of trustees of a village defendant is not empowered to waive the issuance and service of summons, and to enter the voluntary appearance .of the defendant in an action, without authority of the village board acting in its corporate capacity as a body politic.</p> <p>5. Courts of General Jurisdiction: Presumption. In courts of general jurisdiction the rule is that the proceedings taken, including questions of jurisdiction, are presumed to be regular and in conformity with law. Where, however, the record discloses the jurisdictional steps taken, and it is made to appear that no jurisdiction was acquired over the defendant, the rule invoked is rendered unavailing.</p> <p>6. Court Without Jurisdiction: Void Judgment. Where a court is without jurisdiction over a defendant, the judgment rendered is void, and may be attacked as such by anyone whose rights are affected by its rendition, and its invalidity shown in any action in which it may be called in question.</p> <p>7. Unauthorized Appearance: Void Judgment. The unauthorized appearance in a case, where no process' has been served upon a defendant, is wholly void as to such defendant for whom such unauthorized appearance was made.</p>

<p>1. Instructions. Instructions copied in the opinion examined, and the giving of the same held to he without prejudicial error.</p> <p>2. Adverse Possession. Where a person claims title to real estate by reason of adverse possession, it is necessary to prove that such person for a period of ten years next before the commencement of the action was in actual, continued and notorious possession of the land claimed, claiming the same against all persons. 'Horhaeh r. Miller, 4 Nebr., 31, followed.</p> <p>3.-: Constructive Possession. Possession of real estate for a period long enough to ripen into a good title, among other essential elements, must be characterized by opposition to, and inconsistency with, the constructive possession of the legal proprietor, as well as all others asserting or claiming title to such property.</p> <p>4. Construction of “Hostile” Applied to Possession. The word “hostile,” when applied to the possession by an occupant of real estate holding- adversely, is not to be construed as showing ill-will or that he is an enemy of the person holding the legal title, but is applied to an occupant who holds and is in possession as owner and therefore holds such possession against all other claimants of the land. Ballard v. Hansen, 33 Nebr., 861, followed.</p> <p>5. Word “Hostile” Used in Instructions. The use of the word “hostile” in an instruction, as describing the character of the possession of real estate under which title is claimed by adverse possession, while not to be commended, held not prejudicial error.</p> <p>6. Instructions, How Construed. Instructions are to be considered together, to the end that they may be properly understood, and when so construed, if, as a whole, they fairly state the law applicable to tlie evidence, error can not be predicated upon the giving of the same.</p> <p>7. New Trial: Newly-Discovebed Cumulative Evidence. A new trial wilT not be granted for newly-discovered cumulative evidence, unless the proposed evidence be of such a weighty character as would probably change the result of the trial.</p> <p>8. --: Newly-Discovebed Evidence: Rule. Before a party can rightfully claim a new trial on the ground of newly-discovered evidence, he is required to show that he could not, by the exercise, of reasonable diligence, have discovered and produced the proposed evidence at the trial had in the case.</p>

Original action in the supreme court to recover penalties under section 9, article 8, chapter 72, of the Compiled Statutes, in the sum of $25,000. Submitted on- deu murrer to petition.

Tried below before Holmes, J. The supreme court of Kentucky has had a statute almost exactly like ours under consideration. It was in an action brought for the purpose of enjoining the board of health from interfering with the practice of osteopathy.

Original action in the supreme court to recover penalties under section 9, article 8, chapter 72, of the Compiled Statutes, in the sum of $25,000. Submitted on demurrer to petition.

Tried below before Kinkaed, J. Crawford is a village in Dawes county, Nebraska. It is situated at the junction of two railways, one being the Burlington and the other the Elkhorn. The village is situate upon the banks of White river. Immediately above the village the Fort Robinson military reservation begins. At this fort is stationed a large number of regular soldiers in the service of the United States. Generally a cavalry regiment is kept there.

<p>Error to the district court for Douglas county. Tried below before Fawcett, J. Rehearing of case reported in 59 Nebr., 460.</p>

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

<p>1. Pleading: Denial: Negative Pregnant. A denial that plaintiff “is a corporation duly organized as a national bank under the act of congress of June 3, 1864, or any other act” does not put in issue the plaintiff’s corporate existence.</p> <p>2. Judgment Creditor: Execution: Return Nulla Bona: Removal of Obstructions: Suit in Equity. A judgment creditor, after an execution has been issued and returned nulla tona, may maintain a suit in equity to make his judgment effective as a lien upon land, by removing obstructions calculated to make an execution sale unproductive.</p> <p>3. Satisfaction of Judgment: Assignment After Payment. A judgment is extinguished when it is paid by one who is primarily liable for its satisfaction. It can not, when so paid, be kept alive by assignment to a third person.</p> <p>4. Void Judgment: Sale of Real Estate Under: Knowledge of Purchaser. A sale of real estate under a void judgment does not divest the owner’s title, nor confer any rights upon a pur- • chaser who buys with knowledge of the facts which render the judgment void.</p> <p>5. Purchaser of Real Estate: Title of Grantor: Apparent Ownership. A purchaser of real estate acquires only the title which his grantor had at the time of the sale, unless he bought and paid for the property on the faith of an apparent ownership upon which he was, under the law, justified in relying.</p> <p>6. -: -: -Real Owner: Purchaser Bona Pide. One who has bought property from a person who was the apparent, hut not the real owner thereof, must, in a contest with the real owner or those claiming through or under'him, allege and prove that he was a tona fide purchaser.</p> <p>7. Decree: Modification: Reversal: Person Not Prejudicially Affected. A party who is not prejudically affected by a judgment or deoree can not secure its modification or reversal.</p>

<p>1. Mistake of Pact: Neglect oe Legal Duty. A mistake of fact is a mistake not caused by the neglect of a leg'al duty on the part of the person making the mistake.</p> <p>2. Culpable Inertness: Loss oe Valuable Right: Reliee in Equity. One who fails, through, culpable inertness, to make inquiry when it is his duty to inquire, and by reason of such failure loses a valuable right, is not entitled to relief in equity on the ground of mistake.</p> <p>3. Petition for Relief: Allegations: Release oe Mortgage: Special Pindings. Where a petition for relief on the ground of mistake of fact charges that false representations on the part of . defendant, caused plaintiff to release a mortgage and thereby to lose a valuable right, a decree in favor of plaintiff can not stand if the court makes special findings intended to embrace all material issues, but fails to find that the fact so charged was true.</p>

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

<p>1. Void Tax Sale: Irregularities: Want oe Authority in Treasurer. Between, tax sales that are void for mere irregularities and those that are void for want of authority in the treasurer to sell, the laws of this state make no distinction.</p> <p>2. -: Assignment oe Public Right to Purchaser. A void tax sale is effective in every case as an assignment of the rights of the public to the purchaser.</p> <p>3. Holder of Certificate: Subrogation. The holder of a tax-sale certificate is subrogated to the rights of the public in any taxes which he pays for the purpose of protecting his lien, whether such taxes were levied before or after he became the owner of such lien.</p> <p>4. -: Lien: Poreclosure. The owner of a tax-sale certificate may enforce his lien by an action in the nature of a suit to foreclose a real estate mortgage.</p> <p>5. Tax Lien: Foreclosure: Admission of Plaintiff. An admission by the plaintiff in an action to foreclose a tax lien, that taxes for certain years were charged ag’ainst his property, and that he had, before the suit was instituted, tendered to the treasurer the amount of such taxes for the purpose of effecting a redemption, is, in the absence of countervailing proof, sufficient to establish the validity of the taxes to which the admission relates.</p> <p>6. Valid Tax: Assessment: Levy. An assessment and levy for genera^ revenue are always evidence of a valid tax.</p> <p>7. Validity of Tax: General Revenue: Presumption. In an action involving the validity of a tax for general revenue it will be ■ presumed, in the absence of proof to the contrary, that the taxing authorities discharged the duties imposed upon them, and that the board of equalization held annual sessions at the time required by law.</p>

<p>Error to the district court for Cass county. Tried below before Ramsey, J. Motion heard by Jessen, J.</p>

<p>1. Negligence: Evidence: Verdict. In an action for negligence by-reason of alleged defective machinery, whereby a plaintiff, who was assisting in the operation of such machinery, receives injuries resulting in the loss of three fingers and a part of the left hand, held, that the evidence of negligence was sufficient to support the verdict of the jury.</p> <p>8. Question of Fact. Held, also, The evidence being contradictory as to whether the machinery, and especially the part alleged to be' defective, was in all respects similar and the same as like classes of machinery in common and ordinary use, that the question of negligence was not one of law but of fact, properly within the province of the jury to determine.</p> <p>3. Verdict: Passion and Prejudice. As to whether the verdict is so larg-e as to make it apparent that it was rendered under the influence of passion and prejudice is not determined.</p> <p>4. Instructions. The refusal to give instruction requested copied in the opinion, held, not to be erroneous.</p> <p>5. -. The giving of two instructions copied in the opinion held to be erroneous.</p> <p>6. Negligence: Presumption. ■ Negligence will not be presumed in the absence of facts and circumstances from which its existence may reasonably be inferred; the presumption, if any may be indulged in, is that all parties acted with ordinary care, and this presumption continues until overthrown by evidence. Spears v. Chicago, B. & Q. R. Co., 43 Nebr., 780.</p> <p>7. —-•: Damages: Recovery. Where, in an action by ■ ployee against an employer, one of the causes contributing to the injury for which recovery is sought in damages, being the alleged negligent action of the employer in permitting the floor where plaintiff stood to become wet and slippery, a finding in favor of the plaintiff as to such act of negligence can only be had when it affirmatively appears by proof that the employer has failed in the exercise of reasonable care in providing the employee a reasonably safe place in the prosecution of the work required. 1</p> <p>8. Instructions: Evidence: Pleadings. Instructions to a jury are required to be applicable to the evidence and grounded upon the pleadings in a case.</p> <p>9. -. Instructions which assume the possible existence of a material fact, to support which there is no evidence, as where a question is submitted as to the alleged neglig'ence of a defendant by reason of the wet and slippery condition of the floor where the plaintiff stood while operating a machine by which an injury was received, and authorizing a recovery if the jury found the defendant negligent in respect to the condition of the floor, and there being no evidence tending to prove that such condition was an act of negligence; held, the giving of such instruction to be erroneous.</p>

<p>■ 1. Record: Case Properly Brought. Record examined, and the case held to have been properly brought to this court for consideration upon the merits involved in the controversy.</p> <p>2. Will Construed. Provisions of the will in controversy examined, and held to disclose no interest in the devisee therein named, save that of trustee for the purpose of applying the property devised to charitable uses.</p> <p>3. Common Law: Federal Constitution: State Constitution: Statute. So much of the common law as is applicable, and not inconsistent with the federal constitution or the laws and constitution of this state, is by statute declared to be a part of the law here. Compiled Statutes, 1899, eh. 15.</p> <p>* 4. Equity Jurisprudence: Judicial Power: Origin: Organic Law: Statutes: Common Law. Under our system of equity jurisprudence, the powers exercised are purely judicial, derived solely from the organic law, including the common law, and the statutes.</p> <p>5. Administration of Charitable Trusts: Statute oe Charitable Uses. The provisions for the administration of charitable trusts under the statute of 43 Elizabeth held not to be in force in this state.</p> <p>6. -: Cy Pres: Parens Patrije: Inapplicable in This State. The doctrine of administering' trusts for charitable uses ey pres, or under the prerogatives of the Icing as parens patries by his sign-manual, is inapplicable and has no part or place in the administration of the courts, either at law or in equity in this state.</p> <p>7. Testamentary Trusts: Common Law oe England: Statute of Charitable Uses. Under the common law of England, held, that testamentary trusts for charitable uses were administered by the courts of chancery, exercising their inherent judicial powers only, anterior to and independent of the statute of 43 Elizabeth: such trusts, where the object of the charity or the beneficiaries of the will were general, indefinite and uncertain, being executed through trustees empowered by the testator to designate the object or objects or select the beneficiaries of- the charity bestowed.</p> <p>8. Doctrine of Charitable Uses: Administration in England: In This State. From the foregoing, held, that the doctrine of charitable uses, being administered as a part of the common law jurisdiction of the courts of chancery of England exercising judicial powers only, has been transplanted in this state and become a part of the jurisprudence of the courts possessing common law equity powers; and that in the administration and enforcement of such trusts the courts can exercise only judicial powers, and not those of the extraordinary character mentioned.</p> <p>9. Donations by Will for Charitable Purposes Favored by Courts. Courts will view with favor donations by will for charitable purposes, and will endeavor to carry them into effect where the same can be done consistently with the rules of law.</p> <p>10. Construction of Terms of Will. Terms of the will under consideration construed to give to the trustee power to apply the property and the proceeds of the same and the sale thereof to some particular and definite charity, according to the judgment of the trustee, once and for all¿ after which the trustee, and his duties and powers in the premises, cease and terminate, the trust haying been fully discharged.</p> <p>11. Power Conferred by Will Upon Trustee: Interposition by , Courts. Where ample power is conferred upon a trustee to relieve a bequest of all objections arising from its indefiniteness, and no obstacle exists to the exercise of that power, courts will not interpose to prevent its exercise, when the trust is assailed for uncertainty. Miller v. Teaehout, 34 Ohio St., 535.</p> <p>13. Devise: Trustee Certain and Ascertainable. In a devise, where a certain and ascertainable trustee or trustees are appointed, with full power to select the beneficiaries or designate the objects of the charity, and devise a plan for the application of the funds bestowed, the court will, through the trustee, execute the charity. Grimes’ Executors v. Earmon, 35 Ind., 199.</p> <p>13. Trustee: Discretionary Power: Will oe Testator. In such a case, the exercise of the discretion or power vested in the trustee will be deemed to be an expression of the will of the testator.</p> <p>14. Bequest for Charity: Dieeekence: Degree: Principle: Indeeiniteness. There is only a difference in degree and not in principle between a bequest for charitable purposes to the poor of a state, or to charitable institutions of two states, or to other general and indefinite charities, and one to some charity entirely unrestricted and undefined.</p> <p>15. Power Conferred on Trustee. If power may be conferred upon a truste'e to designate a charitable object for the testator’s bounty, held, that unlimited scope may be given regarding the objects of charity, the only limitation being that the object must be a charitable one according to„ the intention of the testator.</p> <p>16. Construction of Will: Intention oe Testator. The provisions of a will, like all other contracts, must be construed with a view of carrying out the intention of a testator, and unless there is something in it contrary to the law of the state, or in contravention of public policy, it will not be declared invalid.</p> <p>17. Object of Testamentary Trust. Where the object of a testamentary trust is clearly charitable, and a trustee is named who is empowered to select for the testator, and as an expression of his will, a charity upon which the property is to be bestowed, and the trustee has accepted or is ready to accept the trust and is willing to carry out its provisions, such bequest, though entirely general and uncertain in its objects, will not be declared invalid because of the general nature of the object or objects of the charity.</p>

<p>1. Quo Warranto: Consent of County Attorney. Quo warranto proceedings begun by the relator in his own behalf as claimant to the office, in the prosecution of which the county attorney joined as one of the attorneys in the case, held to be sufficient to show that the action is brought with the consent of the county attorney, as required by section 1, chapter 71, Compiled Statutes, 1899. Kane v. People, 4 Nebr., 509, followed.</p> <p>2. Petition: Single Cause oe Action. Petition examined, and held to state but one cause of action.</p> <p>3. Trial Without a Jury: Error: Sufficient Evidence. In an action tried to a court without a jury, prejudicial error can not be predicated on the rulings in the admission of evidence. A reviewing court will only ascertain whether there is sufficient proper and conqpetent evidence to support the judgment rendered.</p> <p>4. Case Distinguished. Case at bar distinguished from State v. Lan-Svnff, 46 Nebr., 514, 527.</p> <p>5. Individual Right: Prosecution: Failure of Official. Where an individual in the prosecution oí a right does everything which the law .requires him to do, and he fails to- attain such right by the neglect or misconduct of a public officer, the law will protect him.</p> <p>6. Presumption That Officer Will Do His Duty: Official Bond: Approval: Limitation. A county officer elect may properly rely upon the presumption that a board of county commissioners will do its duty and convene in timely session to act upon official bonds presented to it for approval, within the time limited by ' statute.</p> <p>7. -: --: -: -: Non-Action: Nunc Pro Tunc. If a person elected to an office presents for approval an official bond in all respects as required by law, within the time fixed by statute, and because of the failure of the approving body to meet, or by reason of non-action thereon, or for any other neglect or omission of duty on their part, an official bond is not approved until after the time limited, and is then approved and filed, the same will be deemed a compliance with the provisions of the statute, and the doctrine of relation is applicable, each subsequent act relating back to the dominant one, to wit, delivery for approval, and will be deemed as having been done of the time within which, in contemplation of law, it should have been approved.</p> <p>8. Judicial Officer: Official Oath: Constitution. A judicial officer, in qualifying for an office to which he has been elected, is required to take and subscribe to the oath prescribed in section 1, article 14, of the constitution.</p> <p>9. Failure to Take Oath: Vacancy. Where an officer elected to a judicial office failed to take the constitutional oath of office within the time contemplated by statute, because of a mistake on his part as to the proper official oath to be by him taken,but soon thereafter took and subscribed to the proper oath and filed it in the proper office before the office had been declared vacant, or any other right or title had intervened, held, that such failure did not of itself forfeit the office, and was not a refusal to take the constitutional oath within the meaning of the word as there used.</p> <p>10. Official Bond: Approval: Filing: Mistake: Discovery of Error: Limitation. Where, as in this case, the officer elect presented with his official bond, which was approved and filed, the official oath prescribed by section 1, chapter 10, Compiled Statutes, 1899, instead of the oath required by section 1, article 14, .of the constitution, under the mistaken belief that the oath taken was the one required by law, and soon afterward, but beyond the time limited by law, upon discovery of the error, subscribed to and filed with the proper officer the oath required by the constitution, held, that such error was an innocent mistake and oversight, and might be thus corrected, and that his right and title to the office was not forfeited because of such mistake.</p>