Volume 75 — Nebraska Reports

<p>Original application for a Avrit of mandamus to compel respondents lo select jurors under chapter 176, laAvs 1905.</p>

<p>Appeal from the district court for Cass county: Paul Jession, Judge.</p>

<p>1. Criminal Law: Change oe Venue: Discretion. The constitution guarantees to every person charged with crime a trial hy an im-_ partial jury. If there is such a prejudice in the minds of the people of the county against the defendant, or such a firm conviction of his guilt of the crime charged against him that there is substantial and well-founded reason to believe that he cannot obtain a fair trial in the county, the constitution requires that the venue he changed. The trial court must exercise discretion in determining these facts, hut has no discretion to refuse the change of venue when these facts appear. •</p> <p>2. -: -: -. The determination of the trial court upon an application of the accused for change of venue will not he disturbed, unless it appears from the record that its conclusion is wrong. Its discretion in the matter is a legal and not an arbitrary one.</p> <p>3. Continuance. The defendant in a criminal trial is not prejudiced hy the denial of his application for continuance upon the ground of absence of material witnesses, if the matters to be proved hy the evidence of the absent witnesses are conclusively established upon the trial hy other witnesses and are not controverted hy the state.</p> <p>4. The guaranty of the constitution that in all criminal prosecutions the accused shall have the right of trial hy an “impartial jury” should he carefully guarded hy the courts. It is not competent for the legislature to limit or modify this right.</p> <p>t 5. Jurors: Competency. Section 468 of the criminal code provides that a juror who is prejudiced against the accused is not competent; nor is one who has an opinion as to the guilt or inno.cence of the accused, unless he says on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence.</p> <p>6. -: -. A juror who has an opinion as" to the guilt or innocence of the accused, from whatever source he has acquired the information on which that opinion is based, is not rendered competent hy the mere fact that he says, on oath, that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. It must affirmatively appear from the whole evidence, upon a fair examination, that he is impartial.</p> <p>7. -: -. The court must he satisfied that the juror is impartial. This means that the whole evidence, in the light of the circumstances, including the conduct and demeanor of the juror, • must show affirmatively that the juror is impartial.</p> <p>8. Verdict: Evidence. I'n criminal trials, the verdict of guilty is not supported by the evidence, unless each element of the crime charged is proved beyond a reasonable doubt. A finding of malice or criminal intent must be derived from the facts proved, and not from conjecture.</p>

<p>Error to the district court for Holt county: James J. Harrington, Judge.</p>

<p>Forgery: Information. To charge the crime of having possession of a forged, false and altered deed, with intent to utter and publish the same as true and genuine, with intent to damage or defraud, as defined in the last clause of section 145 of the criminal code, the words “knowing the same to be false,” or their equivalent, must appear in the information; a'nd where such words are wholly omitted the information will not sustain a conviction.</p>

<p>1. Judgment by Default, Amount of. In an action for the recovery of money only, in case of default by tbe defendant, judgment can be rendered for no greater sum than is indorsed upon the summons. Crowell v. Galloway, 3 Neb. 215.</p> <p>2. Process: Amendment: Limitations. Where, in an action for money only, the prascipe omitted to direct the clerk of the district court to indorse upon the summons the amount for which judgment would be taken if the defendant failed to appear, and the summons issued and served bore no such indorsement, an amendment to the summons, made by leave of court, allowing such indorsement, and the issuance and service of an alias summons,- the defendant having made no appearance in the action, will not relate back to the time of the original summons, so as to stop the running of the statute of limitations.</p>

<p>Error to the district court for Douglas county: Irving F. Baxter, Judge.</p>

<p>Appeal from the district court for Hall county: John R. Hanna, Judge.</p>

<p>Appeal from the district court for Red Willow county : Robert O. Orr, Judge.</p>

<p>1. Foreclosure Sale: Title. Under our law governing sales of real property on execution, the title of a purchaser thereat depends upon a final confirmation of the sale made; and until this is had, and a conveyance of the real estate is executed and delivered in pursuance of such confirmation, the legal title of the execution debtor to the real estate is not devested. Yeassel v. White, 40 Neh. 432, followed and approved.</p> <p>2. -: -. The owner of real estate that has been sold on execution retains the legal title therein, and is entitled to the possession, rents, profits, and usufruct of such real estate until a final confirmation of the sale made.</p> <p>3. Claris & Leonard Investment Co. v. Way, 52 Neh. 204, examined and distinguished.</p>

<p>Error to the district court for Otoe county: Paul Jes> sen, Judge.</p>

<p>Error to the district court for Dawson county: Bruno O. Hostetler, Judge.</p>

<p>1. Highways: Dedication: Evidence. Evidence of user, and of surveying, platting and otherwise improving by public authorities, examined, and held sufficient to show the establishment of a public road by dedication.</p> <p>2. Evidence examined and fou'nd sufficient to justify the finding and decree of the district court.</p>

<p>1. Decedent: Witness: Competency. In this case (an action by a married woman against the representatives of a deceased person to enforce specific performance of a contract with the deceased), the husband of the plaintiff was a competent witness in her behalf.</p> <p>2. Contract: Description oe Land: Parol Evidence. A contract affecting the title to real estate is not void for uncertainty, if the land intended to be described can be identified from the description in the contract with the aid of parol evidence. Ruzioka v. Hotovy, 72 Neb. 589.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Appeal from the district court for Douglas county: Willis G-. Sears, Judge.</p>

<p>1. Courts: Jurisdiction. The court of one state cannot by its decree directly affect the legal title to lands situated in another state, but, “if all the parties interested in the land are brought personally before a court of another state, its decree, establishing their equities in the land, would be conclusive upon them and thus in effect determine the title.” Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. Rep. 333.</p> <p>2. Judgments of Sister States: Federal Provisions. When the courts of a sister state having jurisdiction of the parties, and of their equitable rights in all of the property owned by one or both of them, by its findings and decree determine those rights, such decree must, under the provisions of the federal constitution, be given full faith and credit by the courts of this state.</p> <p>3. -: Divorce: Decree as to Property. The statute of the state of Washington, quoted in the opinion, as construed by the courts of that state, give the courts jurisdiction in the trial of a divorce case to make distribution between the parties of all of the property possessed jointly or severally by the parties upon principles of general equity, “having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired.” When both parties to the divorce proceedings in that state have appeared before the court, being a court of general jurisdiction, and have asked the court to distribute their property, including land in this state, ahd the court by its decree has done so, its decree is conclusive of the equities of the parties in the real estate situated in this state.</p> <p>4. Possession of land is notice of equities; and a purchaser of land from one not in possession takes it subject to the equitable right of one in possession thereof.</p>

<p>Error to the district court for Lincoln county: Hanson M. Grimes, Judge.</p>

<p>Error to the district court for Fillmore county: George W. Stubbs and Leslie G. Hurd, Judges.</p>

<p>Appeal from the district court for Gage county: William H. Khlligab, Judge.</p>

<p>Appeal from the district court for Boyd county: James J, Harrington, Judge.</p>

<p>Error to the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Error to the district court for Richardson county: John S. Stull, Judge.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Error to the district court for Platte county: James G. Reeder, Judge.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Appeal from the district court for Richardson county: - Albert H. Babcock, Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>1. Beneficial Insurance Contract. Where a member of a fraternal benefit association agrees to be bound by subsequently enacted by-laws, such contract will be upheld when the subsequently enacted by-laws are reasonable in their nature and legally enacted.</p> <p>2. -: New By-Law: Forfeiture: Suicide. A subsequent by-law, legally enacted, providing for the forfeiture of a fraternal benefit certificate when the death of the member is occasioned by suicide, whether sane or insane, is a reasonable by-law and will be upheld.</p> <p>3. -: -: Construction. A subsequent by-law providing for a forfeiture will be strictly construed against the association, and, if passed in contravention of the provisions of the statute governing such associations, it will be held void and of no effect.</p> <p>4. Corporate Powers: Statutory Regulation. When the exercise of corporate power has been regulated by statute, the corporation cannot, by its by-laws or resolutions, change the mode of the exercise of this power.</p> <p>5. Praternal Societies: Government. A fraternal benefit association must have a representative form of government. This requires that the directors or other officers who have charge and control of the property and business of the society, and the management of its affairs, shall be chosen by the membership thereof. State v. Bankers Union of the World, 71 Neb. 622, followed and approved.</p> <p>6. Collateral Attack. An attack on a'n illegal by-law of a fraternal benefit association is not a collateral attack on the right of the society to do business.</p>

<p>1. Arbitration. An unexecuted agreement to arbitrate will not be recognized by tbe courts of this state.</p> <p>2. Defense: Evidence: Review. It is not error'to refuse to submit a defense pleaded, which is not supported by competent evidence,</p> <p>3. Instructions: Pee judicial Eeeoe. Action of the trial court in giving instructions examined, and held prejudicial.</p>

<p>Partnership, Evidence of. Record of a certificate provided for in section 27, chapter 65, Compiled Statutes 1903, is not the only-evidence by which the existence of a partnership may be established. Notwithstanding that statute, a partnership may be proved by any method permissible before the statute was enacted. Schneider v. Patterson, 38 Neb. 680, followed and approved.</p>

<p>1. Payment: Application. While as bétween the debtor owing several debts and his creditor, where the former, at the time of payment of a sum of money, fails to designate the debt on which it is to be applied, the latter may do so, yet there is an exception to this rule, as, where the money was received by the debtor from a third party whose property would' be liable for the debt in case the money was hot applied upon the third party’s liability. Crane Bros. Mfg. Co. v. Keels, 35 Neb. 683, followed and approved.</p> <p>2. Mechanics’ Liens: Foreclosure: Pleading. In a proceeding to foreclose a lien for materials furnished and used in the cohstruction of a building under the provisions of section 2, article I, chapter 54, Compiled Statutes 1903, a general denial of such lien by the owner of the building is sufficient to put the material-man oh proof of the amount actually due for such material furnished.</p>

<p>Error to the district court for Douglas county: Irving F. Baxter, Judge.</p>

<p>Appeal from the district court for Douglas county: Willis G-. Sears, Judge.</p>

<p>Error to tlie district court for Hamilton county: Benjamin F. Good, Judge.</p>

<p>Error to the district court for Merrick county: James G. Reeder, Judge.</p>

<p>Appeal from the district court for Webster county: Ed L. Adams, Judge.</p>

<p>A mew trial will not be granted merely to allow a party to offer newly discovered evidence on an issue already established in his favor, or on an immaterial issue.</p>

<p>Error to tbe district court for Gage county: William H. Kelligar, Judge.</p>

<p>1. Insurance Policy: Validity. A life insurance policy issued on the life of a person but fourteen years of age, which policy had attached thereto a memorandum to the effect that the company issuing the policy would not assume any risk on account of the death of the insured until the insured had arrived at the age of fifteen years and is examined by an examiner of said company, and the examination approved by' the medical director, is not void. •;</p> <p>2. -: Waiver. In the case stated, where the company issuing the policy received an,d retained the second premium from the insured after he had arrived at the age'of fifteen years, without requiring the medical examination as stated in the memorandum and provided for by its articles of incorporation, held, in the absence of fraud, that the medical examination was waived.</p>

<p>1. Criminal Law: Change of Venue. A motion for a change of vehue in a criminal prosecution is addressed to the sound discretion of the trial court, and, unless there has been an abuse thereof, its ruling on the motion cannot be disturbed. Qolds'berry v. State, 66 Neb. 312.</p> <p>la.-: --. If from the showing made in support of and against the motion for a change of venue in a criminal case there is no reasonable ground shown on which to found a belief that the accused cannot have a fair and impartial trial in the county where the offense is alleged to have been committed, it is not error to deny such motion. Qoldsberry v. State, 66 Neb. 312.</p> <p>2. Objections to Evidence. An objection to a question on the ground that it is leading and calling for a conclusion of the witness does not properly raise the question of the competency of the evidence sought to he elicited by such question.</p> <p>2a. Harmless Error. The admission of incompetent evidence may be error without prejudice, where the fact to which such evidence relates is otherwise established by competent evidence.</p> <p>3. Instruction: Evidence oe Character. It is not error to refuse an instruction concerning evidence of the previous good character of the accused, when the instruction calls attention especially to such evidence and to no other, and tells the jury that it may be relied on to raise a doubt of the guilt of the accused sufficient to acquit him, which, without such proof, would not have existed.</p> <p>за. Evidence of good character is always admissible as a circumstance favorable to the accused, to be considered by the jury in connection with the other evidence bearing upon the question of guilt or innocence, and given such weight as the jury believe it fairly entitled to, and when so considered it may be sufficient to create a reasonable doubt, when, without it, none would exist; but the conclusion of the jury is to be drawn from the whole of the evidence, and when, after giving evidence of good character due weight, the proof still shows the accused to be guilty beyond a reasonable doubt, such evidence of good character is unavailing.</p> <p>зб. Noninstruction alone on the question of evidence of good character, in the absence of a proffered instruction correctly stating the law, is not reversible error.</p> <p>4. Instructions: Harmless Error. Certain requested instructions examined, and the refusal to give the same held not prejudicial error.</p> <p>5. Error: Waiver. Errors assigned but not argued will he considered as waived.</p>

<p>Error to the district court for Dawson county: Homer M. Sullivan, Judge.</p>

<p>Original action for damages for breach of contract. Defendant demurred.</p>

<p>1. Beneficial Associations: Protection oe Name. Under section 110, chapter 43, Compiled Statutes 1903, the auditor is not authorized to issue a certificate of organization to a society whose name or title so resembles a title already in use in the state as to have a tendency to mislead the public.</p> <p>2. -. If a name or title of a beneficiary insurance company contains a descriptive word by which the society is generally known to the public, to incorporate that word as the characteristic word in the name of a proposed new company must be held to have a tendency to mislead the public.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>1. Criminal Law: Codeeendants : Review. Where two persons charged jointly with a criminal offense demand and are accorded separate trials, an order of the court refusing the request of the one on trial for the presence of his codefendant in the court room will not be reviewed by the appellate court, in the absence of any showing of prejudice resulting to the rights of the accused by the refusal of such request.</p> <p>2. Evidence of identification of shoes talreh from the defendants examined, and held sufficient.</p> <p>3. Evidence: Codeebndants. One of two persons jointly charged with the commission of a crime cannot, by being accorded a separate trial, prevent the state from introducing evidence, otherwise competent, to prove his guilt, because such evidence also tends to establish the guilt of his codefendant.</p> <p>4. Evidence describing comparisons made between the shoes worn by the accused and footprints found near the place where the crime was committed, without the opinions of the witnesses, is proper and competent as tending to connect the accused with the commission of the offense.</p>

<p>1. Wills: Competency. Where a testator, though, aged and infirm, understands the nature of the act he is performing, knows and can retain in mind the amount and character of his property, and who are or naturally should be the objects of his bounty, and has a full understanding of the persons or institutions to ■whom and the purposes for which his devises and bequests are made, he is competent to make a will.</p> <p>2. Harmless Error. Where a verdict and judgment is the only one that could be supported under the evidence, errors in the rulings of the court are without prejudice and will not be considered.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>1. Homestead: Liens. Where a mortgage lien, exists upon a tract of land claimed as a homestead, and the mortgage debt is paid by the proceeds arising from a loan secured by a new mortgage on the same land, the interest of the claimant being at all times less than $2,000 in value, and the homestead is sold to a third person while thus incumbered, the transcript of a judgment filed while the first mortgage was in force does not become a lien upon the premises. France v. Sohnbaum, 73 Neb. 70, 74, followed.</p> <p>2. Process: Return: Impeachment. The return of an officer as to service of process may be impeached by extrinsic evidence.</p>

<p>1. Landlord and Tenant: Parol Lease. A parol agreement between a landlord and a tenant, whose term was about to expire, that the tenant should remain in possession for four months longer, followed by the tenant retaining possession after his first term had ended and the four months’ term begun, ev.en though the amount of rent to be paid was not agreed upon, is a valid lease for four months, and the law implies an agreement to pay a reasonable rent for the use and occupation of the premises.</p> <p>2. Parol Lease: Annulment. A notice served by the landlord after the making of such agreement notifying the tenant that, if he held over his first term, he would be taken as occupying for another year at an increased rent, held inoperative to set aside such parol lease.</p>

<p>Objections to tbe appraisal of property sold at a judicial sale should be filed before tbe sale, except where fraud in the appraisement is charged</p>

<p>Error*to the district court for Douglas county: Edmund M. Bartlett, Judge.</p>

<p>1. Contract: Assuming Debt: Action. When a vendee of personal property assumes and agrees to pay as the purchase price, or a part of it, an indebtedness of the vendor to a third person, the creditor may enforce the obligation by a suit at law against both parties to the agreement.</p> <p>2. Appeal: Judgment. A judgment for the plaintiff rendered in the district court on appeal is not erroneous because it includes interest upon the claim sued upon during the time of the pendency of the action in that court, although the judgment is thereby made to exceed in amount the jurisdiction of the court from which the appeal was taken.</p>

<p>A notice of a judicial sale of lands must be published for at least thirty days next preceding the date of sale and must appear in all the regular issues of the paper during that period.</p>

<p>Error to the district court for Douglas county: William A. Redicic, Judge.</p>

<p>Error to the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Error to tlie district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Error to the district court for Gage county: William H. Kelligar, Judge.</p>

<p>Counties-: Action on Warrant. An action to recover a money judgment upon a county warrant may be maintained when the money for the payment of such warrant has been collected and wrongfully applied by the county authorities to the payment of other claims against the county. Ayres v. Thurston County, 63 Neb. 96, followed and approved.</p>

<p>1. Contracts: Merger. Before ctoe contract is'merged in another and superseded thereby, the last contract must be between the same parties as the first, and must embrace the same subject matter, and must have been so intended by the parties.</p> <p>2. Evidence examined, and held sufficient to sustain the judgment.</p>

<p>1. Sale: Rescission. If one party to ah. agreement of sale for the purpose of obtaining credit makes false representations relating to the amount of his assets, or the condition of his financial afliairs, and the other party, replying thereon, enters into the agreement to extend credit on the strength of such representations, he may, on discovering the fraud, repudiate the agreement and refuse to carry it into effect.</p> <p>2. New Contract. Where a party repudiates an agreement to extend credit to another because of false and fraudulent representations made in obtaining it, a'nd the agreement is then so changed as to eliminate the provision for credit and to require cash on delivery, the second agreement is not a mere modification of the first but a new and independent agreement, and no new or further consideration is necessary to support it.</p> <p>3. Contract: Defense: Pleading. Where a party to a contract inserts a provision exempting him from fulfilling because of a condition which may afterwards arise, he must, when sued for a breach of the contract, plead in defense the existence of the condition in order to have the advantage thereof.</p>

<p>Appeal from the district court for Dakota county: Guy T. Graves, Judge.</p>

<p>1. Review: Record. A judgment will not be reversed for error of law occurring at the trial unless it is alleged in the petition in error ahd shown by the record that the court erred in overruling the motion for a new trial. James v. Higginbotham, 60 Neb. 203.</p> <p>2. Instruction: Objection. A party who fails to object to an instruction is conclusively presumed to be satisfied with it as given.</p> <p>3. Judgment: Jurisdiction. One claiming title to personal property through a sale under attachment proceedings in a justice’s court must show legal notice to the defendants of the pendency of the action and that the property claimed was attached therein.</p>

<p>1. Evidence examined, and TieXci to warrant the decree of the trial court.</p> <p>2. A sale is a transmutation of property or a right from one person to another, in consideration of a sum of money, as opposed to barters, exchanges and gifts.</p> <p>3. Contract for Sale. A written contract between the owner of real estate and a real estate broker for the “sale” of property does not contemplate an exchange thereof for other property.</p> <p>4. Statute of Frauds: Executed Contract. A subsequent oral contract, superseding or modifying o'ne which the statute of frauds requires to be in writing, will be upheld, if executed.</p> <p>5. Evidence: Amount oe Recovery. Under the evidence, JieXcX, that a real estate broker has no just cause for complaint of an allowance to him of $300 as commission for services in the exchange of properties.</p>

<p>1. Mortgages: Assignee, Rights of. A mortgagee may, by agreement, fix the rights of his assignees of the notes secured by a-mortgage to the mortgage security, and such an agreement may be implied from the circumstances of the transfer.</p> <p>2. Kes Judicata: Fraud. A decree of a court vested with jurisdiction over the subject matter and the persons in interest, fixing the status of a series of notes secured by a single mortgage, is binding on one who, in-a subsequent action, attempts to avoid the effect of the decree, where it appears that the transfer of the note involved in the later proceeding was fraudulent as against the holders of the other notes.</p>

Appeal: Issues. A case appealed to the district court must be tried in that court upon the issues presented in the lower court. Error to the district court for Lancaster county: Albert J. Cornish, Judge.

<p>Judicial Sale: Appeal: Redemption: Res Judicata. During the pend-ency of an appeal from a judgment of the district court confirming a judicial sale, the supreme court is vested with jurisdiction to entertain an application to redeem and to determine the amount of redemption money required for that purpose, and where such jurisdiction is exercised the adjudication of the appellate court incident thereto becomes res judicata.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Appeal from the district court for Cass county: Paul Jessen, Judge.</p>

<p>Original action, in the nature of ejectment.</p>

<p>Original action in the nature of ejectment.</p>

<p>Error to the district court for Douglas county: George Á. Day, Judge.</p>

<p>Error to the district court for Hall county: John R. Hanna, Judge.</p>

<p>Irrigation: Injunction. Where the evidence shows that an appropriator of water does not beneficially use the amount which it has diverted into its canal by reason of wastage and seepage caused by defective maintenance, and there is enough water in the stream, if economically used, to supply both the complainant and certain riparian owners taking water for irrigation purposes above the point of diversion, the appropriator is not entitled to an injunction to prevent the use of the water by such owners.</p>

<p>1. Election of Remedies. Adhere a plaintiff sets up a conversion of a team of horses by a bailee, and pleads the execution, of a bill of sale by him to the bailee for such team upon the agreement of the bailee to pay a fixed and definite amount therefor, he cannot afterwards, if unsuccessful in this action, in another action claim that the title to the horses never passed from him, and that they were killed by the negligence of the bailee. He had the right to elect as to whether he would treat the title to the property as having passed and sue in assumpsit upon the promise, or he had the right, upon the theory that the title never passed, to sue for the wrong. He did not have the right to do both.</p> <p>2.-. The doctrine of election of remedies applies when a party who actually has at hand two inconsistent remedies, with full knowledge of such fact, proceeds to enforce one of these remedies. Pekin Plow Oo. v. Wilson, 66 Neb. 115.</p>

<p>Wills: Homestead. Under the provisions of section 17, chapter 36, Compiled Statutes 1903, a homestead which was the separate property of the wife, at her death, vests in her surviving husband for life, and the wife has no power to limit or dispose of the life estate of the survivor by will.</p>

<p>.Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Directing Verdict. Although the evidence is uncontradicted, yet, if diverse inferences of fact are warranted thereby, the fact itself is for determination by the jury.</p>

<p>Appeal from tlie district court for Douglas county: Alexander O. Troup, Judge.</p>

<p>Appeal from the district court for Hitchcock county: George W. Norris and Robert C. Ore, Judges.</p>

<p>Evidence examined, and held sufficient to sustain the judgment.</p>

<p>Error to the district court for Gage county: W. H. Kelligar, Judge.</p>

<p>1. Villages: Pool-Halls, Regulation of. The charter of villages confers on the trustees of the-village power to regulate billiard and pool-halls, but not to supress them. Authority to regulate does not give power to suppress.</p> <p>2. Mandamus: Premature Action. An ordinance- of the village of Lyons required the proprietors of pool and billiard-halls to pay an annual occupation tax, which was to be paid on the second Tuesday of May or as soon thereafter as they became liable to the tax by engaging in the business. The relator on the first Tuesday in May tendered to the village treasurer the tax required on five tables, which the treasurer refused to accept, and thereupon relator immediately brought this action to compel him to take and receipt for the money. Held, That, the tax not being due or payable until the second Tuesday in May, the action was prematurely commenced and the writ properly denied.</p>

<p>Appeal from the district court for Howard county: John R. Hanna, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Error to tbe district court for Custer county: Bruno O. Hostetler, Judge.</p>

<p>1. Petition: Prayer. Whore a petition filed in the district court states facts sufficient to entitle plaintiff to both legal and equitable relief, and prays relief, a part of which only can be had at law, but all of which can be had in equity, the pleader will be held to have intended thereby to invoke the chancery, and not the common law, powers of the court.</p> <p>2. —--; Election. After filing a petition of that character, the plaintiff may elect to proceed at law, but to do so he should manifest his election by some unequivocal act which commits him to the theory that he has abandoned his claim to equitable relief.</p> <p>3. A mere demand for a jury to try the issues of fact is not such' an act as would warrant the court in assuming that the plaintiff has abandoned his claim to equitable relief, because, where the relief sought is equitable, a court in its discretion may submit the issues of fact to a jury.</p> <p>4. Deed: Sanity or Grantor: Evidence. In a suit by one of the representatives of a deceased person to set aside a conveyance made by the deceased on the ground that he was mentally incompetent to execute such conveyance, an answer filed by the deceased in a suit pending in his lifetime, in which he averred that at the time of executing the contract then in suit he was suffering from mental and physical prostration, and non compos mentis, is inadmissible in evidence on the question of the mental capacity of the grantor.</p> <p>5. Evidence,., On the trial of the cause, a nonexpert witness was asked to state whether the grantor was able to converse intelligently on any particular'subject for any length of time. Held, That, the witness having given the conversations and described the conduct of the grantor, it was for the court to draw inferences therefrom as to his inability to converse intelligently.</p> <p>6.-■. The fact that the attending physician prescribed certain drugs for a patient which are used in the treatment of mental disorders is not competent evidence tending to establish the insanity of the patient.</p> <p>7. --. The opinion of an expert witness on the question of insanity, which assumes the point in dispute, is valueless.</p>

<p>1. Instructions. An instruction which sets out a state of facts, and authorizes a verdict for one of the parties upon a finding of such facts, is erroneous, unless it includes every fact necessary to sustain a verdict in favor of such party, unless the omitted facts are conclusively established.</p> <p>2. -. Where such instruction is complete in itself, the error therein is not cured by the giving of other instructions which correctly state the law or the facts essential to a recovery by such party.</p> <p>3. Master and Servant: Unsafe Appliances. The mere fact that a chain, upon which the plaintiff and other workmen were pulling, broke while being used for the purpose for which it was furnished, and had broken and been repaired on former occasions while being thus used, is not of itself sufficient to show conclusively that it was not reasonably adapted to-, and safe for, the purpose for which it was furnished.</p> <p>4. -: Use of Appliances. Ordinarily, it is the duty of an employer to see that the tools and appliances which he furnishes his employees are reasonably fit and safe for the use for which they are furnished, but this does not relieve the employee from the exercise of his own judgment in the use thereof, and if he puts- them to a use for which they are not designed or furnished, or subjects them to a strain beyond their capacity to bear, and is injured in consequence, the employer, in the absence of special circumstances, is not liable.</p>

<p>1. County Board: Appeal: Pleadings. On an appeal to the district court by a taxpayer from an order of the county board allowing aid to an agricultural society under section 12, article I, chapter 2, Compiled Statutes 1903, the appellee is not required to plead that the county board included the amount .allowed by it in its annual estimate, nor that there were funds in the treasury, or taxes levied, against which a warrant could be drawn.</p> <p>2. -: Aid to Agkicui/turai, Societies. As a condition precedent to allowing aid to such societies, said section requires that there shall be paid into its treasury, in voluntary subscriptions or fees imposed upon its members, not less than $50 each year, and that the amount thus paid shall be certified by the president to the county clerk. The president certified that the amount thus paid each year prior to 1899 exceeded $50 and the exact amount for each subsequent year, the amount each subsequent year being more than $50. Held, That the certificate was a substantial compliance with the statute.</p>

<p>1. Taxation: Exemptions. Public parks belonging to a city of the metropolitan class are not taxable property within the meaning of subdivision III, section 110, chapter 12a, Compiled Statutes 1903.</p> <p>2. Cities: Improvements: Petition. It is not competent for a city of the metropolitan class to petition itself for improvements in a street improvement district within such city.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Judicial Sale: Appraisement: Liens: Estoppel. The deduction of an apparent prior lien in the appraisement of real estate for the purpose of a judicial sale is not conclusive as to the validity of such lien or the priority thereof, hut where such appraisement, as returned by the sheriff,' shows a lien apparently prior to the lien under which the premises are to be sold and that such lien was, in fact, treated as prior and valid by the appraisers in determining the interest of the defendant in the premises, and where the status of such apparent lien has not been judicially determined, one who purchases at the sale, without questioning the validity or priority of such apparent lien, is thereafter estopped from so doing.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Error to the district court for Douglas county: George A. Day, Judge.</p>

<p>1. Continuance. A motion for a continuance is directed to the sound legal discretion of the trial court, and its decision thereon will not be reversed unless there has been an abuse of such discretion.</p> <p>2. The purchaser under a decree of foreclosure acquires by his deed all of the interest of the mortgagor in and to the mortgaged property; and the grantee of such purchaser, who is in possession of the property as owner in fee, is not liable to a junior incumbrancer for rents and profits, where such junior incumbrancer does not seek to redeem the prior incumbrances.</p> <p>3. Decree: Description of Property. The rule, “That is certain which can be made certain,” applies to the description of property ordered sold by a decree of foreclosure; and where the property is described as it is commonly known and designated, and its identity can be readily ascertained, the decree will not be vacated for uncertainty.</p> <p>4. Tax Sale: Redemption. Section 3, article IX-of the constitution, grants the owner of real estate sold for the nonpayment of taxes or special assessments of any character whatever the right of redemption for a period of two years from the date of the sale. This provision is self-executing, and a junior lienholder is not entitled to a decree ordering the sale of such property, without the right of rederuption.</p> <p>5. Res Judicata. A proceeding cannot be maintained to set aside or vacate a decree of foreclosure, based on an allegation of fact which was in issue and was determined in the trial which resulted in such decree.</p>

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>Specific Performance: Evidence. Where it is sought to enforce specific performance of a contract to sell real estate which it is claimed was entered into upon behalf of a corporation by certain of its officers in their individual names, it is incumbent upon the plaintiff to show either that the corporation authorized the contract ■ or that the execution of the same had been ratified by it.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Error to the district court for Lincoln county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Scott’s Bluff county: Hanson. M. Grimes, Judge.</p>

<p>Error to the district court for Merrick county: Jambs G. .Reeder, Judge.</p>

<p>1. Husband, and Wife. It is the right and privilege of a husband to fix in good faith a domicile for himself and wife, and, when he does so, it is the duty of the wife to follow her husband to such domicile and live with him there as his wife.</p> <p>2. -: Maintenance. It is the duty of the husband to provide for the reasonable support and maintenance of his wife during the continuance of the marriage relation; and, when the husband without just cause fails to provide for the support and maintenance of the wife, «he may maintain an action against him for reasonable maintenance, unless by her own act of abandonment of the husband’s domicile, or some other act wholly inconsistent with her duty as his wife, she has forfeited her right to such maintenance.</p> <p>3. Abandonment: Evidence. To defeat a wife’s claim for support and maintenance on the ground of voluntary abandonment of the husband’s domicile, the fact of such abandonment must be established by cogent proof.</p> <p>4. Evidence examined, and held not sufficient to establish a voluntary abandonment of the husband by the wife.</p>

<p>1. New Trial: Joint Motion. Where all the codefendants join in a motion for a new trial, which is not. good as to all, the motion, should.be overruled.</p> <p>2. Conspiracy: Several Judgments. Where several defendants are proceeded against as conspirators in the commission of a tort, which would be actionable if committed by one alone, a judgment against one or more of such defendants may be sustained without proof of a conspiracy among all of them,</p> <p>3. Husband and Wife: Alienation of Affections: Evidence. In an action by a wife for tbe alienation of the affections of her husband, evidence of the earning capacity and the financial condition of the husband is admissible as affecting the quantum of damages, if any, that the wife may recover for the loss of her husband’s support.</p> <p>4. Instructions. It is not error to refuse an instruction not based on either the pleadings or the evidence.</p> <p>5. Quantum of damages examined, and held not so clearly excessive as to suggest prejudice and passion in the award.</p>

<p>Evidence examined, and held not to support the verdict of th.6 jury.</p>

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. An assignment of causes for trial made at tlie opening of a term, which does not fix a day certain for the trial of each cause, is generally provisional and subject to such changes as may be required to meet unforeseen contingencies, and attorneys and litigants are chargeable with notice of that fact.</p> <p>2. Trial: Advancement oe Causes. In the absence of special circumstances, a party has no right to complain because his case is advanced on the assignment as a result of a continuance of a case preceding it.</p> <p>3. Dismissal: Vacating. Where neither the plaintiff nor his attorney are in attendance when the cause is reached for trial, a judgment of dismissal should not be set aside, in the absence of a showing of due diligence.</p> <p>4. Evidence examined, and held insufficient to show due diligence.</p>

<p>1. Instruction: Verdict: Evidence. Where the jury is instructed that the plaintiff is required to establish a certain fact in order to entitle her to a verdict, and there is no evidence tending to establish that fact, a verdict in her favor will be set aside.</p> <p>2. Pleading: Instruction: Evidence. Where-the plaintiff pleads payment of an insurance premium, and the court instructs the jury that such payment must be established by the evidence to entitle the plaintiff to a verdict, the requirement is not satisfied by evidence tending to establish a waiver or postponement of the time of payment.</p> <p>3. Principal and Agent: Admissions oe Agent. It is not every admission or declaration of an agent that is binding on his principal. The. general rule is that the principal is not bound by such admissions or declarations, unless they are made during the transaction of business by the agent for the principal, and within the scope of the agency.</p> <p>4. Evidence examined, and held insufficient to sustain the verdict.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Appeal from tbe district court for Washington county: Lee S. Estelle, Judge.</p>

<p>1. Contempt: Jurisdiction. The district court has jurisdiction to punish contempt by fine or imprisonment, or both.</p> <p>2. Injunction: Violating: Jurisdiction. By section 260 of the code a judge of the district court at chambers is given jurisdiction to enforce obedience of an injunction or restraining order, whether .the same was allowed by the court or by a judge thereof. He has no jurisdiction to punish a violation of such order, as a criminal offense, by imprisonment.</p> <p>3. Courts: Adjournment: Presumptions. Where the record shows an order adjourning a term of the district court to a future day, and judicial proceedings in the interval, it will be presumed, if necessary to support the jurisdiction of the court over such proceedings, that the order of adjournment was vacated, and the court reconvened.</p> <p>4. Contempt: Transferring .Case. Upon prosecution for contempt in the district court, the judge before whom the cause is regularly to be heard may refuse to transfer the cause to another judge of the same court for hearing, unless it is made to appear by due . - proof that a fair and impartial trial cannot be had before him, or that some other ground for change of venue prescribed by statute exists.</p> <p>5. --: Information: Amendment. A prosecution for constructive contempt is based upon an affidavit or information alleging the facts constituting the contempt. If such information is amended by interlineation in matter of substance, it must be reverified, and there must be a trial thereon as upon a new prosecution.</p> <p>6. Injunction: Violation: Information. In a prosecution for constructive contempt in the violation of a restraining order, the affidavit or information must set forth the acts constituting the violation. The general allegation that the defendant has disobeyed the restraining order is not sufficient to give the court jurisdiction;</p> <p>7. Contempt: Information. A prosecution for contempt is “in the nature of a prosecution for a crime,” and the affidavit or information must state the acts constituting the offense with as great certainty as is required in criminal proceedings.</p>

<p>1. Statutes: Construction. The object of the court in construing an act of the legislature is to ascertain the intention of the lawmakers. That intention, when ascertained, will prevail over the literal sense of the words used.</p> <p>2. County Clerks: Salary. In counties of more than 25,000 inhabitants the salary of the county clerk is fixed at $2,500 per annum by chapter 72, laws 1905, and he is also entitled to one deputy whose salary shall be $1,000 per annum.</p>

<p>Appeal from the district court for Lancaster county: , Edward P. Holmes, Judge.</p>

<p>1. Villages: Territorial Limits. The law authorizing the incorporation of villages does not contemplate including in the corporate limits remote territory, or purely agricultural lands, not actually connected with the Tillage, and not adapted to municipal purposes. State v. Mote, 48 Neb. 683.</p> <p>2. -: Incorporation. Such lands cannot be included within the limits of the proposed Tillage for the sole purpose of obtaining a sufficient number of actual residents necessary to incorporate, without the consent of the owner, and such owner can maintain proceedings by quo warranto to determine the validity of the order of incorporation. State v. Dimond, 44 Neb. 154.</p> <p>3. Evidence examined, and held to show less than the required number of actual residents within the village necessary to incorporate, at the time the proceedings for that purpose were had.</p>

<p>Appeal from the district court for Seward county: Benjamin P. Good, Judge.</p>

<p>Error to the district court for Douglas county: George A. Day, Judge.</p>

<p>ÍCax Suit: Appearance. In a tax suit under the “Scavenger” act, the action of the district court in disregarding a volunteer and unauthorized appearance of an attorney purporting to answer for all defendants in default and in rendering, a default decree against such defendants, field to be proper.</p>

<p>Original action by tbe state against the Omaha Elevator Company and others. Defendants demurred to petition.</p>

<p>Judgment: Collateral Attack. A judgment by a district court in conformity with a permissible interpretation of an obscure or ambiguous mandate from tbis court is not subject to collateral attack.</p>

<p>. Error to the district court for Douglas county: Edmund M. Bartlett, Judge.</p>

<p>Error to the district court for Douglas county: Lew g. Estelle, Judge.</p>

<p>Sheriff’s Deed: Priorities, it is well settled in this state that a sheriff’s deed takes precedence from the date of its record of all outstanding conveyances and incumbrances executed by the judgment debtor which were not recorded and of which the purchaser had no actual notice. ></p>

<p>Equity: Executory Contract: Forfeiture. A court of equity will not enforce against a vendee a technical forfeiture of an executory contract for the sale of land, if the defendant offers to do equity in consideration of being restored to his contractual rights.</p>

<p>1. Taxation: Remedies. The sole remedy, in the first instance, of otte who conceives that his property has been excessively valued for taxation is to apply to the board of equalization to correct the error.</p> <p>2. Appeal: Final Order. An order overruling a motion to deny confirmation of a judicial sale and to set the sale aside is not final or appealable.</p> <p>3. Tax Lien: Foreclosure: Parties. A mortgagee of real property is not a necessary party to an action against the owner of the fee to foreclose a tax lien. Whether he is the proper party, quwref</p>

<p>Error to the district court for Holt county: James J. Harrington, Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Error to the district court for Burt county: Edmund M. Bartlett, Lee S. Estelle and William A. Redick, Judges.</p>

<p>Appeal from the district court for Dawes county: Wxlliabí H. Westover, Judge.</p>

<p>1. Foreclosure: Deficiency Judgment. In a proceeding for a deficiency judgment under section 847 of the code as it existed prior to the amendment of 1897, the usual and better practice is not to determine the liability of a defendant for such deficiency until after the report of the sale, when, for the first time, it can he definitely ascertained that a deficiency actually exists. Brown v. Johnson, 58 Neb. 222, followed and approved.</p> <p>2. -: Decree: Review'. While the decree finding personal liabilities first rendered in a foreclosure proceeding is to a certain extent interlocutory, yet, as to findings of fact made in such decree on issues properly pleaded, it is not subject to review on objections to a deficiency judgment.</p> <p>3. The contract of, a married woman can only be enforced against the separate estate which she possesses at the date of the con-’ tract. Kocher v. Cornell, 59 Neb. 315, followed and approved.</p> <p>4. Judgment: Default. Where there is personal service and default, such default confesses every material allegation of the petition which is well pleaded.</p> <p>5. Deficiency Judgment: Limitations. The cause of action for a deficiency judgment does not accrue until the coming in of the report of the sale.</p> <p>6. -: Procedure. Application for a deficiency judgment may be heard on a motion after the coming in of the report of the sale.</p>

<p>Appeal from the district court for Antelope county: John F. Boyd, Judge.</p>

<p>1. Chattel Mortgage: Description. A defective or Incorrect description of property covered by a chattel mortgage is immaterial, so far as the.parties to the mortgage are concerned, when it is admitted by the mortgagor that the property claimed by the mortgagee as included therein is the identical property intended to be mortgaged.</p> <p>2.-: Subsequent Purchaser. A chattel mortgage giving a lien on the mortgaged property as against the mortgagor is, notwithstanding an imperfect description of the property covered thereby, good as against a subsequent purchaser or mortgagee who fails to show that he purchased in good faith and without notice of the mortgage.</p>

<p>1. Official BondsSureties : Liability. The surety on the official bond of an officer is not liable for the penalty of $50 imposed by section 34, chapter 28 of the Compiled Statutes, for exacting fees in excess of those prescribed by statute. Eccles v. United States Fidelity & Guaranty Go., 72 Neb. 734, disapproved.</p> <p>2. Second Appeal: Law of Case. An appellate court, on a second appeal of a case, will not ordinarily reexamine questions of law presented by the first appeal, but where the case was on the first appeal remanded generally for a new trial and the same questions are presented on the second trial, the appellate court is not bound to follow opinions on questions of law presented on the first appeal and may reexamine and reverse its rulings on such questions, and should do so when the opinion first expressed is manifestly incorrect.</p>

<p>1. Divorce: Decree: Evidence. Evidence examined, and held to justify a decree of divorce on the ground of extreme cruelty, and an order giving the plaintiff custody of the children.</p> <p>2. Authority as to Property. Where a court has jurisdiction of the parties, its authority to grant a divorce carries with it authority to adjust the property rights of the parties with respect to personal property within its jurisdiction.</p> <p>3. Alimony. On the facts stated, held that the alimony allowed the wife is not excessive.</p> <p>i. -. Where the situation of the parties and the contingencies are such that the amount of alimony cannot be placed at a lump sum without danger that such allowance may prove unjust or inequitable to one or other of the parties, it is proper for ■ the court .to provide for the payment of a stated sum at fixed periods for a given length of time, or until the further order of the court.</p>

<p>The remedy by injunction is not available to enforce a bare legal right, when there is a plain and adequate remedy at law.</p>

<p>Error to the district court for Douglas county: William A. Riddick, Judge.</p>

<p>Appeal from the district court for Holt county: James J. Harrington, Judge.</p>

<p>Error to the district court for Seward county: Benjamin F. Good, Judge.</p>

<p>Error to tlie district court for Dawson county: Bruno O. Hostetler, Judge.</p>

<p>Error to the district court for Saunders county: Benjamin F. Good, Judge.</p>

Original application for a writ of mandamus to compel respondent to list for taxation the reserve funds of certain beneficiary associations.

<p>Error to the district court for Douglas county: George A.. Day, Judge.</p>

<p>Error to the district court for Cheyenne county: Hanson M. Grimes, Judge.</p>

Original application for a writ of mandamus to compel respondent to deliver to relator tbe records, etc., of the office of county superintendent of schools.

<p>1. Homestead: Executory Contract: Quieting Title. An executory contract lor the sale of a homestead, made by either husband or wife without joinder by the other, is void as to the whole homestead tract, without regard to value, and not only will specific performance of it not be decreed, but a breach of it will not afford a cause of action for damages.</p> <p>2. Appeal:' Variance. Sections 138, 139 and 144 of the code, relative to variances and amendments, are applicable to the trial de novo in this court of suits in equity on appeal.</p>

<p>An action in ejectment, denominated by tbe code “an action for the recovery of real property,” can be maintained only by one wbo bas both a legal estate in and a right to the immediate possession Of the demanded lands.</p>

<p>Pleading: Reply. A plaintiff may plead in his reply new matter not inconsistent with his petition and contradictory to or supplementary of facts pleaded as a defense in the answer.</p>

<p>Attachment: Dissolution. The subsequent purchaser of lands on which an order of attachment has been levied cannot question the existence of the grounds for the issuance of the writ; to the attachment debtor alone belongs that right. Meyer, Bannerman & Co. v. Keefer, 58 Neb. 220, followed and approved.</p>

<p>Error to the district court for Gage county: William H. Kelligar, Judge.</p>

<p>Error to the district court for Douglas county: William A. Redick, Judge.</p>

<p>1. Case Followed. Hargreaves Brother$ v. Hackney, 74 Neb. 700, followed and approved.</p> <p>2. Trial: Harmless Error. Action of tbe trial court in the admission of evidence examined, and held hot prejudicial.</p>

<p>Appeal ' from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>■ Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Error to the district court for Cedar county: Guy T. Graves, Judge.</p>

<p>Error to the district court for Madison county: John P. Boyd, Judge.</p>

<p>Libel: Instruction. Where the publication of a libel actionable per se is admitted and justification pleaded, it is error to instruct the jury that the burden is on the plaintiff to establish the allegations of his petition.</p>

<p>1. Instruction. The trial court told the jury that there was no evidence of certain facts material to the issues in the case, while the record shows evidence sufficient to require the question of the existence of such facts to he submitted to the jury for its finding. Held, Error.</p> <p>2. Intoxicating Liquors: Injury: Instruction. Under our statute, it is not necessary that the liquors furnished by a defendant be the sole or even the principal cause of an alleged injury to the plaintiff, ahd an instruction to that effect is erroneous.</p>

<p>1. Husband and Wife: Title by Pkescbiption. The general rule is that the husband or wife cannot, while living together and in the joint possession of real estate, acquire title one against the other by prescription.</p> <p>2. -: -. In such case both are presumed to occupy the premises in subordination to the title under which possession was taken, in whichever of the parties it may be, and not in hostility to such title.</p> <p>3. --: -. A husband, while living with his wife, held possession of land, claiming title thereto through a tax deed which was void upon its face for want of a seal. Some years after taking possession he caused the same to be conveyed to his wife through a third party, his deed being a quitclaim, and the parties thereafter jointly occupied the land. Some time prior to the running of the statute of limitations in favor of the wife and the vesting of title in her by prescription, the husband bought in the patent title and thereafter, for some years, continued in possession of the premises with his wife, but did not record his deed or assert any title to the premises in hostility to the claim of his wife until the statute had run in her favor. Held, that his possession of the land with his wife after acquiring the patent title, without ány act or declaration on his part that he was claiming possession under his deed, did not arrest the running of the statute in favor of the wife, and that she acquired title to the land through adverse possession thereof.</p>

<p>Pleading. A petition declaring on an appeal bond, which contains no allegation showing a breach of its conditions, is subject to demurrer.</p>

<p>Appeal from the district court for Otoe county: Paul Jessen, Judge.</p>

<p>1. Highways: Dedication. Where adjoining landowners place fences and plant trees along the line between their lands in such a way .as to leave an intervening space for public travel, and with the intention that it be used for that purpose, and the public enter upon and use the intervening space as a highway and continue in such use and enjoyment thereof for almost 20 years, it will be regarded as a highway by dedication.</p> <p>2. Acceptance. In order to constitute a highway by dedication, it is not necessary that the offer of dedication be accepted by the public authorities, it may be accepted by the public itself.</p> <p>3. The acceptance by the public itself is shown by its entering upon the land and enjoying the privilege offered by user.</p> <p>4. Evidence examined, and held sufficient to show a highway by dedication.</p>

<p>Appeal from and error to the district court for Douglas county: Alexander C. Troup, Judge.</p>