Volume 86 — Nebraska Reports

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

<p>Appeal from the district court for Clay county: Robert C. Orr, Judge.</p>

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

<p>Error to tbe district court for Phelps county. Harry S. Dung an, Judge.</p>

<p>1. Telegraphs and Telephones: Rates: Criminal Prosecutions. Proceedings for violation of the provisions of subdivision c, sec. 15, ch. 90, laws 1907, must be by criminal prosecutions, and not by civil actions.</p> <p>2. -: Regulation: Statutes: Construction. The chapter above mentioned, in so far as its provisions relate to the prevention of abuses, extortions and unjust discriminations, is applicable to common carriers of news and intelligence, such as telegraph and telephone companies, as well as to common carriers of goods and passengers.</p> <p>3. Constitutional Law: Titles to Acts. The title to that chapter is broad enough to embrace its provisions defining telegraph companies to be common carriers, prohibiting them from practicing abuses, extortions and unjust discriminations, and providing penalties therefor.</p>

<p>1. Negligence: Question i»R Juey. Where different minds may reasonably draw different inferences as to whether certain facts establish negligence' or contributory negligence, the question of negligence must be left to the jury.</p> <p>2. Appeal: Instructions: Rbview. Where a requested instruction is refused by the trial court, but the court embodies the same idea in an instruction given upon its own motion, the party requesting such instruction having suggested it to the court will not be heard to complain that it is erroneous.</p>

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

<p>Appeal from the district court for Gage county: John B. Rapeii, Judge.</p>

<p>1. Waters: Railroad Embankment: Damages. Where damages were paid to a riparian owner for the diversion of a stream from his land, such damages do not cover future injuries by reason of the defective construction of a railroad embankment in such a manner as to retain flood' waters which otherwise would have escaped through a natural channel.</p> <p>2. -: Injury to Crops: Accrual oe Action. Where an injury to crops is caused by the negligent construction of a railroad embankment,- which arrested and held upon the land the flood waters of a natural stream, the cause of action accrues at the date of the injury, and not at the date of the negligent construction of the improvement. Chicago, B. & Q. B. Co. v. Mitchell, 74 Neb. 563.</p> <p>3. Evidence examined and held to sustain the verdict.</p>

<p>Appeal from the district court for Harlan- county: Harry S. Dungan, Judge.</p>

<p>Appeal from the district court for York county: Harvey D. Travis, Judge.</p>

<p>Executors and Administrators: Accounting: Attorney’s Fees. An executor should ordinarily be credited in his final account with the estate for reasonable attorney fees paid by him in proceedings to probate the will of his testator.</p>

<p>Appeal: Affirmance. In an action at law, this court will not ordinarily reverse a judgment of the district court, supported by the pleadings, if the record does not exhibit a copy of a motion for a new trial.</p>

<p>Appeal from the district court for Webster county: Harry S. Dtjngan, Judge.</p>

<p>Quo Warranto: Village Trustees: Parties. After the corporate existence of a village has been legally terminated by a vote of the electors, persons subsequently assuming to act as village trustees may be ousted in a proceeding in the nature of quo warranto; and, when the county attorney has given his consent, an action for that purpose may be instituted and maintained by an elector whose property is being assessed by defendants for village purposes.</p>

<p>Appeal from the district court for Fillmore. county: -Leslie G. Hurd, Judge.</p>

<p>1. Taxation: Sale: Confirmation. On a hearing of an application for confirmation of a sale for taxes, where it is made to appear by an uncontradicted affidavit, offered by the owner of the land sold and received by the court, that all taxes lawfully assessed against said land had been paid- prior thereto, it is error to confirm such sale.</p> <p>2. -: -: -. And where it further appears by such affidavit that the lands so sold were assessed, taxed and sold as town lots, when in fact no survey, plat, or division of said land into town lots had been made or authorized by the owner thereof, such land is not subject to taxation as town lots, and a sale thereof by such designation is void.</p>

<p>Rehearing of case reported in 83 Neb. 728.</p>

<p>1. Notes: Interest. A promissory note in the following form: “One year after date we promise to pay to the order of Liberato Varriano four hundred no-100 dollars at Omaha, Nebraska. Value received with interest at the rate of - per cent, per annum from- until paid”—draws interest at the legal rate of seven per cent, per annum from its date.</p> <p>2. Pleading: Admissions. The averments of the answer, set out in part in the opinion, held to constitute an admission of plaintiff’s ownership of the note and mortgage upon which the action is based.-</p>

<p>1. Criminal Law: Witnesses: Refreshing Recollection. A party who calls a witness, and is in part taken by surprise by his unexpected and unfavorable testimony, may, for the purpose of refreshing his recollection, interrogate him as to a written statement previously made by him which is inconsistent with part of his testimony, and thereby seek the correction thereof, and may, for that purpose, submit the statement to the witness for inspection. The denial of the witness of the correctness of a part of such statement will not render the whole of the writing admissible in evidence.</p> <p>2. -: Evidence: Admissibility. AVhere a statement of substantially all of the facts of the killing of a human being, and for which a party is on trial for murder, is prepared by the county attorney and signed by a witness of the tragedy, and upon the trial the testimony of the witness contradicts a part of such statement and denies its correctness, it is reversible error to permit the whole of such statement to be read to the jury.</p> <p>3. -: Witnesses: Impeachment. Ordin'arily a party may not impeach his own witness by showing that he has made statements previous to the trial contradictory of his testimony. This, however, will not prevent proof of the truth by other evidence or witnesses.</p>

<p>1. Criminal Law: Venue. “The venue of an offense may be proven like any other fact in a criminal case. It need not be established by direct testimony, nor in the words of the information, but if from the facts in evidence the only rational conclusion which can be drawn is that the crime was committed in the county alleged, the proof is sufficient.” Weineoke v. State, 34 Neb. 14.</p> <p>2. Evidence examined, its - substance set forth in the opinion, and held sufficient to sustain the verdict.</p> <p>3. Criminal Law: Witnesses: Impeachment. The fact that the name of a witness is indorsed on the information in a criminal prosecution, he not having been examined by the state, and no demand having been made upon the prosecution to place him upon the witness stand, and t-he defendant having called such witness and interrogated Mm in Ms own behalf, does not prevent the state from impeaching him.</p> <p>4. Instructions complained of examined and found to be without error.</p>

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

<p>1. Conditional Sales: Bona Fide Purchaser. If the vendor in a conditional’ sale contract fails or neglects to avail himself of the provision of section 6045, Ann. St. 1907, relating to the filing of such contracts in the office of the cleric of the county, and relies only upon the good faith or credit of the vendee, he cannot interfere with a conveyance of the property to a purchaser in good faith without notice.</p> <p>2. -: Election oe Remedies: Waiver. Where personal property is sold and delivered upon condition that the title shall remain in the vendor until the payment of the purchase price, and the latter elects to bring suit for the recovery of the debt, the adoption of this course is a waiver of the condition, and the sale becomes absolute. -</p>

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

<p>Municipal Corporations: Sidewalks: Void Assessment: Injunction. In litigation concerning a special assessment levied upon village lots to pay for a sidewalk constructed in a street adjacent to such real estate, if it appears that the village board in levying the assessment did not take into account the benefits and damages resulting from the construction of the sidewalk, but levied the total cost thereof without regard to such benefits or damages, the tax is void, and its collection may be enjoined.</p>

<p>Appeal from tlie district court for Dawson county: Bruno 0. Hostetler, Judge.</p>

<p>Appeal from the district, court for Boyd county; AVilliam II. AAIestover, Judge.</p>

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

<p>1. Appeal: Stipulation. Where a petition is filed in the district court by which plaintiff in possession seeks a decree quieting title to real estate, and defendant answers denying the right of plaintiff to such possession and demanding judgment in his favor therefor, and decree is entered denying relief to either party, from which the defendant alone appeals, but pending the appeal the parties stipulate that “the court shall consider all questions for and against either party as though both parties had taken an appeal and enter decree accordingly”, this court will'treat the whole case as before it the same “as though both parties had taken an appeal.”</p> <p>2. Adverse Possession; Acts Constituting, Where the purchaser of real estate under a verbal contract of sale Is p.ut in possession by the vendor under an oral agreement for the payment of the purchase price thereafter, the possession of the vendee will not become adverse until payment in full of the agreed consideration. But in such a case where a dispute arises between the parties as to whether or not such consideration has been paid in full, and the vendee in person or by his agent or attorney notifies the vendor that he claims full payment of such consideration has been made, and demands of the vendor a deed for said real estate, such acts will constitute such an assertion of ownership by the vendee that his possession thereafter will be adverse; and, if such possession is permitted to continue for the full statutory period, of ten years thereafter, it will vest in the vendee an absolute title to such real estate.</p> <p>3. -; Evidence. And in a suit thereafter by the vendee to quiet his title, where the testimony of the vendor and vendee is conflicting, but it appears from the evidence that the vendor never at any time after such assertion of ownership and demand for a deed by the vendee made any demand upon the vendee for payment of any balance claimed to be due, nor in any manner questioned the title or right of possession of vendee, and it further appears from the evidence that the vendee and his heirs have during all of said time been in possession of and exercised absolute dominion over said real estate, such facts and circumstances will be held to furnish sufficient corroboration of the testimony of vendee to entitle him to a decree quieting his title to such land.</p>

<p>1. Villages: Pom,-I-Iallr, Regulation oe. State v. MeMonies, 75 Neb. 443, has been superseded by section. 8887, Ann. St. 1907.</p> <p>2. -: -1-: Delegated Powers. The legislature has full power to grant authority to villages to" license, regulate, or prohibit billiard-halls, pool-halls or bowling-alleys within the limits of such village.</p> <p>3. -: Ordinances: Validity. “The motive governing a legislative body in passing a statute or ordinance is not a proper subject for investigation by the courts.” McCarter v. City of Lexington, 80 Neb. 714.</p>

<p>1. Appeal: Filing Transcript: Computation oe Time. The computation of time for filing a transcript in this court on appeal from the district court, under section 675 of the code, is controlled by the provisions of section 895 of the code.</p> <p>2. -: -: —-•. The rule stated in the third paragraph of the syllabus in McGinn v. State, 46 Neb. 427, reaffirmed, and held applicable to section 895 of the code.</p> <p>3..-: -: -. Section 895 of the code held to apply to the computation of time, whether the time to be taken into account be days, months or years; and where an act is to be done, or is permitted to be done, within a specified time, and the last day is Sunday, it shall be excluded and the act may be done on the following day. -</p> <p>4. -: Reversal: Second Trial: Directing Verdict. On a former appeal from a judgment in favor of plaintiff, the case was reversed on the ground that the evidence was insufficient to establish actionable negligence on the part of the defendant. On a second trial no new or additional evidence on that branch' of the case was offered by plaintiff. The trial court directed a verdict for the defendant. Held no error. Anderson v. Union Stock Yards Co., 84 Neb. 305, followed.</p>

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

<p>1. Appeal: Assignment of Errors. The purpose of the act of 1907 (laws 1907, ch. 162) was to further simplify the practice in taking appeals to this court in civil actions at law. No assignment of errors in this court is necessary except in the printed brief; and ordinarily the court will not reverse the judgment of the district court for errors not so assigned. Plain errors not so assigned, especially if they involve jurisdictional questions, may, under some circumstances, be considered. Each error complained of must be assigned separately and “particularly.”</p> <p>2.-: -. The assignment in this court that “the court erred in overruling the motion for a new trial”, and similar technical ' assignments, are no longer required. If the particular ruling of the trial court which is complained of is separately assigned in the brief and plainly and definitely stated, the statute is complied with. This court, however, will not ordinarily discuss in the opinion assignments that are not argued in the brief and supported by authorities.</p> <p>3.-: -. When at the close of the evidence the defendant moves the court to instruct the jury to find a verdict in his favor, and the motion is overruled and an exception duly taken, the assignment in the brief that “the court erred in overruling the motion of the defendant made at the close of the evidence that the jury be directed to return a verdict for defendant” is sufficient.</p> <p>4.-: Motion for New Trial. The practice in the district court is unaffected by this statute. The motion for new trial must give the trial court an opportunity to correct all errors complained of. No alleged error can be considered in this court as ground for reversal unless so brought to the attention of the trial court.</p> <p>5. New Trial: Refusal to Direct Verdict: Assignment of Errors. The assignment of error in the motion for new trial that “the verdict is not sustained by sufficient evidence” or “the verdict is contrary to law” is sufficient to challenge the attention of the trial court to its ruling in refusing to direct a verdict for defendant. since there should be an instruction to find for defendant if the evidence is not sufficient to sustain a verdict for plaintiff, and the same question is raised by either suggestion.</p> <p>6. Appeal: Assignment of Errors. It is not necessary that the assignment in this court should be in precisely the same language used in the motion for new trial in the district court. If the ruling is identified and plainly defined, it is sufficient.</p> <p>7. Trial: Motion to Direct Verdict. The suggestion in a motion to instruct the jury to find a verdict for defendant that “the facts proven are not sufficient to entitle the plaintiff as matter of law to recover” is equivalent to assigning that the evidence is insufficient to justify a verdict for plaintiff.</p> <p>8. Master and Servant: Fellow Servants. If two servants of the same employer are associated together in the same service, and neither is in any manner under the control or direction of the other, they are fellow servants, and one of them cannot recover damages from the employer, caused solely by the negligence of his fellow servant.</p> <p>9.--:--. A woman of mature age was employed as housekeeper and in general charge of the housework, and was injured by an accident caused by the negligence of the son of her employer, a boy of 14 years, who was also performing ordinary household service in the absence of his father, but pursuant to the general directions of his father to perform such service. Held, That the woman and the boy were fellow servants, and that she could not recover from her employer damages so sustained.</p>

<p>Error to the district court for Kearney county: Harry S. Dungan, Judge.</p>

<p>Tax Sale: Validity: Redemption. Real property was sold at administrative sale for the taxes of the years 1892 to 1900, inclusive. In a suit to redeem it was shown that the land was not assessed for the years 1898 and 1899, being entirely omitted from the assessment rolls for those years. There was no assessment made or ordered to be made by the county board, nor by the county clerk. The land was entered upon the treasurer’s tax list by interlineation, but neither the treasurer nor the county clerk knew, or could explain, how, by whom, or by what authority such entries were made. Held, That the sale of the land for taxes, including the two years, was without authority of law, and the land was subject to redemption by the owner of the legal title.</p>

<p>1. Deeds: Delivery: Acceptance. A deed conveying real estate was duly executed and delivered to the scrivener by whom it was written, with instructions to forward it to the register of deeds for record, the grantee being present and assenting thereto. Held, That this consituted a delivery to and acceptance of the deed by the grantee, and the title was thereby vested in the grantee.</p> <p>2. Specific Performance: Evidence. Plaintiff alleged that before the date of the execution of a deed to real estate she was an unmarried woman; that defendants, the father and mother of an unmarried man, agreed and promised her, in consideration that she would marry their son, they would give and convey to them jointly a designated 160-acre tract of land; that, relying upon their promise, she was married to the son. In a suit for specific performance of the contract, it was shown that subsequent to the marriage a conveyance of a tract consisting of 120 acres of said land was made to plaintiff and her husband, the deed being delivered to a third party to be placed upon record, such delivery being agreed to and accepted by the grantees without objection. Held, That by those acts the title to the land conveyed vested in the grantees jointly upon such delivery, and that plaintiff could not maintain a subsequent action for the specific performance of the contract to convey the 160 acres.</p> <p>3. ■——■—; Relief. In such case, where it was shown that the grantor, without the consent of plaintiff, obtained the return of the deed to him and destroyed it, the court should refuse to enforce specific performance, but should by proper decree confirm and quiet the title of plaintiff in - the land conveyed, the prayer of the petition being for general relief.</p> <p>4.-: Pleading: Homestead. In such case, where the answer alleged that a portion of the land claimed by plaintiff constituted the homestead of defendants, and no reply was filed denying such allegation, the decree of the district court denying any relief will be reversed, with direction to allow the pleadings to be reformed, if desired, and ascertain whether the land conveyed by the husband alone included any part of the homestead, and, if so, such part, not exceeding $2,000 in value, be excluded from the decree.</p> <p>5. Vendor and Purchaser: Deeds: Destbttction. The destruction by the grantor of a deed conveying real estate, after delivery and without the consent of the grantee, will not divest the grantee of title, the possession of the deed having been obtained by the grantor without the consent of such grantee.</p>

<p>Error to the district court for Cass county: Harvey D. Travis, Judge.</p>

<p>Opinion on motion for rehearing of case reported in 85 Neb. 796.</p>

<p>Opinion on motion for rehearing of case reported in 85 Neb, 397,</p>

<p>1. Trial: Motion to Direct Verdict: Waiver of Error. If a defendant desires to submit his case to the jury on the evidence of the plaintiff, and asks the court to instruct th'e jury to return a verdict in his favor, he should make his motion to that effect without reservation. If he does not, the court may refuse to entertain it. If the defendant on the overruling of his motion offers testimony in support of his defense, this will amount to a waiver of the error, if it be such.</p> <p>2. Appeal: Pleading: Review. Where upon the trial both parties to the action have treated the case as though the affirmative defenses contained in the answer were denied by a reply, or have treated the reply as sufficient in form and substance to put such affirmative defenses in issue, such conduct will amount to a waiver of the insufficiency of the pleading, and that question cannot be raised for the first time in the court of review.</p> <p>3. Negligence: Evidence: Questions for Jury. Evidence examined, its substance stated in the opinion, and held sufficient to require the trial court to submit the questions of negligence and contributory negligence to the jury.</p> <p>4. Trial: Admission of Evidence: Instructions. Admission of immaterial and incompetent evidence may he cured by an instruction to the jury to disregard it, where it is of such a nature as not to prejudice the substantial rights of the complaining party.</p> <p>5. -: Witnesses: Credibility: Questions for Jury. Ordinarily the credibility of a witness is a question for the determination of the jury, and it is within their province to credit the whole of his testimony or any part of it which appears to them to be convincing, and reject so much of it as in their judgment is unworthy of credit.</p>

<p>Error to the district court for Antelope county: An-son A. Welch, Judge.</p>

<p>Appeal from tlie district court for Holt county: William H. West over, Judge.</p>

<p>1. Appearance. When, in a case in which the court has jurisdiction of the subject matter, a defendant voluntarily appears to resist an order in the case, and thereafter answers to the merits and asks for affirmative relief, he thereby makes a general appearance in the action.</p> <p>2. Appeal in Equity: Motion for New Trial. In an equity case appealed to this court, if it is desired to review alleged erroneous rulings of the trial court as to the reception of evidence, a motion for a new trial must be filed, and overruled in the district court.</p> <p>3. Tax Certificates: Ownership: Evidence. Proof of indorsement of a tax sale certificate by an original purchaser and possession by an indorsee are prima facie evidence of ownership of it.</p>

<p>1. Statutes: Construction. An act of tlie legislature requiring all corporations, with the exception of those belonging to certain classes, to file articles of incorporation with the secretary of state and an act establishing a standard of fees for such services are in pari materia, and should be construed together.</p> <p>2.-: -. Ordinarily an exception in a statute will be held to apply to the clause or sentence immediately preceding it, but this rule is not unbending, and if a consideration of all statutes bearing upon the subject indicates a different legislative intent, this will prevail over a construction based upon the rules of syntax.</p> <p>3. Corporations: Felino Articles oe Incorporation. The exception of building and loan associations, etc., in section 126, ch. 16, Comp. St. 1907, examined, and held to apply to the clause of said section requiring every corporation to file its articles of incorporation in the office of the secretary of state. Held further, that such exception does not excuse domestic corporations from filing such articles “with the county clerk in the county in which their headquarters are located.”</p>

<p>Judgment: Petition to Vacate: Sufficiency. In a proceeding brought under section 602 of the code to open up a judgment on account of fraud after the expiration of two years from its rendition, if the petition fails to set forth that the facts were not discovered within two years thereafter, and fails to show any reason why the two years should he extended, it is not error for the district court to refuse to take jurisdiction, and on motion strike the petition from the flies.</p>

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

<p>Trial: Verdict. Where all of the defendants are by the court’s instructions placed in the same relation with respect to plaintiff, a verdict in favor of two defendants and against another, based upon conflicting. evidence which is the same as to all of the defendants, will not be permitted to stand.</p>

<p>1. Pleading: Defenses. “A defendant may plead as many grounds of defense as lie may Rave, provided they are not so repugnant that if one be true another must be false.” Home Fire Ins. Go. v. Decker, 55 Neb. 346.</p> <p>2. Insurance: Notice of Accident. Where a person is accidentally injured so as to render him unconscious and thereafter .cloud his mind so that he cannot, within the time limited in an accident insurance policy, intelligently give notice to the insure,r @f. such accident, he will be excused from giving the notice while so disabled.</p> <p>3.--: -. And if, while the policy holder is thus incapacitated, a third person gives the insurer notice at its office of the accident and the insurer acts thereon, it will be held to have received notice of the accident.</p> <p>4. Gcntr.-.cts: Construction: Forfeitures. Where an insurance con tract is susceptible of two constructions, one of which will work a forfeiture, and the other will not, that construction should be adopted which will prevent the forfeiture.</p> <p>5. Evidence: Mental Condition: Ofinion of Nonexpert. If the mental condition of a litigant becomes a material subject of inquiry, it is competent to receive the opinion of a nonexpert witness, concerning that condition, where it appears that the witness has for years been intimately acquainted with the litigant, and the opinion is formed upon facts within the personal knowledge of the witness and sworn to by him before the jury.</p> <p>6. -: Physical Condition: Opinion of Physician. A physician may give his opinion concerning the cause of a person’s physical condition, where that opinion is based upon a hypothetical question fairly describing such condition and reflecting the testimony before the jury upon that point.</p>

<p>Appeal from the district court for ■ Butler county: George F. Corcoran, Judge.</p>

<p>Appeal from the district court for Otoe county: Harvey D. Travis, Judge.</p>

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

<p>1. Justine .of the Peace: Judgment by Default: Jurisdiction. Where a summons returnable June 8, 1903, at 9 o’clock A. M., was issued by a justice of the peace and served on defendant June 5, 1903, .the justice, in absence of an appearance by defendant, had jurisdiction to enter a judgment against him by default June 8, 1903, at 10 o’clock A. M. White v. German Ins. Co., 15 Neb. 660.</p> <p>2. Judgment: Vacation: Equitable Relief. In a suit in equity to cancel a judgment on the ground that it was rendered against the defendant in a suit before a justice of the peace who deprived him of his defense by stating that he could go where he pleased, that it would be foolish to employ counsel, and that plaintiff therein had no case, denial of equitable relief held proper, where it was shown that such defendant deliberately permitted a default after having stated to the justice and the constable that he had no property and did not care whether plaintiff took judgment or not.</p> <p>3.-: -: Insanity: Evidence. A judgment against defendant in an action at law will not be set aside in a suit in equity on the ground that he was non combos mentis, where the evidence fails to disclose that fact.</p>

<p>Appeal from the district court-for Lancaster county: Willard E. Stewart, Judge.</p>

<p>1. Village Trustees: Term of Office. One who.is elected and serves a term as trustee of a village is entitled to hold over after his term expires until his successor is elected and qualified.</p> <p>2. -: Election: Duty, of Board of Canvassers. It is the duty of the board of canvassers of the election returns to determine whether a candidate for the office of trustee of a village was elected, and, if so, to issue their certificate to that effect. If they refuse the certificate, the candidate has no pnma facie right to the office.</p> <p>3. Officers: Usurpation of Office: Injunction. If one without any prima facie right to an office attempts to take possession of the office and discharge the duties thereof, a court of equity, at the suit of the incumbent of the office, will restrain him from so doing.</p>

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

<p>Error to the district court for Boyd county: William EL Westovee, Judge-.</p>

<p>Appeal írom the district court for Pawnee county: John B. Ri per, Judge.</p>

<p>Appeal from the district court fur Lancaster county: Albert J. Cornish, Judge.</p>

<p>Error to tlie district court for Booné county: James N. Paul, Judge.</p>

<p>1. Counties: Officers: Assistants: Compensation. By the provisions of chapter 35, laws 1901, county boards of counties having more than 25,000 and less than 60,000 inhabitants were given the power to authorize the county treasurer to employ three assistants or clerks, and retain out of the fees of his office, if they should reach that amount, the sum of $2,400 a year for the payment of their salaries.</p> <p>2. -: -: -: -. In January, 1905, the county board of Gage county, that being a county having more than 25,000 and less than 60,000 inhabitants, authorized the county treasurer to employ three clerks or assistants to enable him to properly conduct the affairs of his office, with combined salaries amounting to $2,400. The legislature of that year, by an amendment to the act of 1901, provided that county boards of such counties shall furnish the treasurer with one deputy or chief clerk with a salary of $1,400; one clerk whose salary shall be $1,000, and one clerk whose salary shall be $600 per annum. The treasurer retained the clerks theretofore authorized by the board, and paid them for the remainder of the year the increased compensation provided by the amendment. Held, That the county cannot recover of the treasurer or upon his bond the amount of such increased compensation.</p>

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

<p>Appeal from the district court for Richardson county: Leander M. Pemberton, Judge.</p>

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

<p>1. Witnesses: Privileged Communications. A statement of fact or opinion expressed by a physician to a patient in the course of a professional visit, based upon a relation of facts by the patient, or upon a physical examination by the physician, is a part of the same transaction, and is as much privileged as the facts or statements of the patient on which it is based.</p> <p>2. -: -: Waiver. A waiver of the privilege or benefit of the protecting statute is a waiver of the disqualification of the physician as to the whole transaction, and not as to a part-of it only.</p> <p>3. Insurance: False Representations: Evidence. Where an issue is made as to false representation in an application for life insurance as to good health and freedom from disease, knowledge by the applicant at the time that he is or has been afincted with tuberculosis of the lungs or tuberculosis of the bones of the wrist is a material matter, which the defendant is entitled to prove by any competent evidence.</p> <p>4.-: -: Effect. “An incorrect or untrue answer in an application for life insurance in reference to matters of opinion or judgment wlU not avoid the policy if made in good faith and without intention to deceive,” but “an untrue answer in an application for life insurance in regard to matters which are shown to be within the knowledge of the applicant and are material to the risk will avoid the policy.” Royal Neighbors of America v. Wallace, 73 Neb. 409.</p> <p>5. -: -: Materiality. Evidence that the applicant when seeking medical advice was told by his physician that he was suffering from tuberculosis is material upon the issue whether the statements in the application were made honestly and in good faith, and is admissible when the privilege is waived.</p> <p>6. Evidence: Admissibility. In order to avoid needless expense and delay, where evidence is in the form of depositions, and the court upon inspection can see that, while the form of question may be technically objectionable, yet the answer furnishes proper evidence, it would facilitate the administration of justice to heed substance rather than form, overrule the objection, and admit the testimony.</p> <p>7. Trial: Instructions. Instructions which state conflicting propositions of law and tend to confuse the jury are erroneous.</p> <p>8. -: -. An instruction which withdraws from a jury all defenses but one, where there is evidence tending to prove another defense pleaded, is erroneous.</p> <p>9. -: -. Other instructions examined and criticised.</p>

<p>1. Contract's: Time of Performance: Conditions Precedent. In determining whether stipulations as to the time of performing a contract for the sale of chattels are conditions precedent, the court will attempt to discover what the parties really intended, and if time appears, on a fair consideration of the contract and of the facts and circumstances surrounding the parties, to be of the essence of the contract, stipulations in regard thereto will be held conditions precedent.</p> <p>2. Appeal: Excessive Verdict: Review. In a suit upon an account where the evidence is conflicting and counsel complain that the recovery is excessive, they should indicate in their oral or written argument the part of the record that will sustain their contention. Failing to do so, such an assignment will ordinarily be overruled.</p>

<p>Mechanics’ Liens: Foreclosure: Pleading: Evidence. If the defendant in an action to foreclose a mechanic’s lien for material furnished a contractor files a general denial, it is incumbent upon the plaintiff to prove that his sworn account for a lien was filed in the office of the register of deeds within 60 days of the date he furnished some part of the material referred to in his account, and the production of the original verified account will not satisfy the law upon this subject.</p>

<p>1. Appeal: Law of Case. On an appeal to this court the determination of a question directly involved therein becomes the law of the cas§ and ordinarily will not be departed from on a subsequent appeal in the same case.</p> <p>2. Corporations: Taking Over Partnership Assets: Rights oe Creditors. The general rule that equity will not permit a corporation to receive all of the assets of an insolvent partnership in consideration of the corporate stock, and hold such assets free from the claims of the partnership creditors, does not apply where a corporation is formed by such partners, and a third person, who, in good faith and in the well-grounded belief that the partnership debts are satisfied, invests a large sum of money in such reorganization and receives corporate stock therefor; but the creditors will be permitted to seize only the partners’ interest in said corporation to satisfy such debts.</p>

<p>Rehearing of case reported in 85 Neb. 566.</p>

<p>Appeal from the district court for Madison county: Anson- A. Welch, Judge.</p>

Originad application for a writ of mandamus to compel respondent to turn over to relator the records, etc., of the office of county treasurer.

<p>Appeal from the district court for Platte county: George H. Thomas, Judge.</p>

<p>Appeal from the district court for Kearney county: Haeev S. Dungan, Judge.</p>

<p>1. Taxation: Void Decree: Constructive Service. In a personal action to foreclose a tax lien against the owner of the fee, who is a resident of the state upon whom personal service can be made within the state, service by publication only is void.</p> <p>2. -: -: Redemption. When a decree foreclosing a tax lien is set aside as void for want of service, the owner of the fee should be allowed to redeem from the tax liens as though no such decree had been entered.</p>

<p>Appeal from the district court for Gage county: Leander M. Pemberton, Judge.</p>

<p>Appeal from the district court for Saline county: Leslie <1. Iluiu), Judge.</p>

<p>Appeal from the district court for Kearney county: Harry tí. JL)un«an, Judue.</p>

<p>Appeal from the district court for Butler county: George F. Corcoran, Judge.</p>

<p>1. Attorney and Client: Purchase of Client’s Interests: Suit to Recover: Evidence. In an action against attorneys at law for tbe recovery of money obtained by tbe purchase and sale of property belonging to tbe estate of a deceased person, at a public sale ordered by the probate court, there, being no evidence of actual fraud, it is incumbent upon tbe plaintiff to prove, by a preponderance of tbe evidence, that at tbe time the transaction complained of occurred the relation of attorney and client existed between tbe representatives of tbe estate and tbe attorneys, or one of them. .</p> <p>2. Evidence examined, and found to be insufficient to sustain tbe judgment of tbe trial court.</p>

<p>1. Appeal: Evidence: Harmless Error. The admission of incompetent or immaterial testimony furnishes no ground for the reversal of a judgment if it is not prejudicial to the rights of the complaining party.</p> <p>2. Marriage: Hearsay Evidence. Hearsay evidence, such as the general understanding and talk in the community in which the parties reside, cannot be received to establish a contract to marry.</p> <p>3. Instructions examined, their substance set out in the opinion, and held to have been properly given.</p> <p>4. New Trial: Conflicting Evidence. A conflict of evidence, however great, is not of itself a sufficient basis for a motion for a new trial upon the ground of accident or surprise.</p>

<p>1. Cities: Street Improvements: Damages. Where two contiguous city lots are used and treated by the owner as one property, in estimating his damages occasioned by lowering the grade of an adjoining street, the injury to the entire property should be considered on an appeal from the award of the board of appraisers, notwithstanding the appraisers have included only one of such lots in their report.</p> <p>2. -: -: -: Appeal: Waiver. Where' a lot owner takes an appeal from the award of the board of appraisers appointed to assess his damages occasioned by the grading of a street adjacent to his city lots, he waives all objections as to the invalidity or irregularity of the proceedings of the city council in making the improvement of which he complains.</p> <p>3.-: -: -: Special Benefits. Under the provisions of the South Omaha city charter, a lot owner is entitled to recover the damages occasioned by the grading of a street in such a manner as to lower it many feet below the natural surface of his lot; and, in estimating the amount of his recovery, special benefits to the property by reason of the improvement, if any, should be set off against the damages he has sustained thereby.</p>

<p>1. Limitation, of Actions: Setting Aside Deed: ■ Duress. The cloud upon a title to real estate created by a recorded deed which was obtained by duress is a continuing one while the plaintiff retains possession of the land, and the right of action for its removal in also continuous in such case. Batty v. City of Hastings, 63 Neb. 26.</p> <p>2. -: -. Such an action may be brought at any time within four years after the defendant has taken possession of the land claiming title thereto under such deed.</p>

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

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

<p>1. Judgment: Vacating During Term. The district court has power to set aside a judgment or decree during the term at which it was rendered, if satisfied that it has been procured by fraud or collusion, or if it believes that its former conclusion was erroneous.</p> <p>2. -: --: Presumptions. On the 15th day of May a written order was filed adjourning the district court for Madison county from May 18, 1908, which was the day at which the May term had at the beginning of the year been designated to begin, to May 20 at 1 o’clock P. M., and on that day a written order signed by the judge was made adjourning the May term from May 20 to May 21. On May 20 a hearing was had upon a motion to vacate a decree of divorce'rendered during the February term. Since the record does not indicate the hour of the proceedings, regularity must be presumed, and the hearing and order will be held to have been had and made during the February term as the record recites.</p> <p>3. Divorce: Collusion: Vacating Decree. Where parties to a divorce proceeding agree that material evideneé shall be suppressed, and that the actual facts in the case shall be concealed from the court for the purpose of procuring a decree which would not otherwise be granted to the complainant, such action is collusive in nature, and a court is warranted in setting aside a decree thus procured.</p>

<p>1. Judgment: Res Judicata. A judgment on tlie merits constitutes an absolute bar to a subsequent action founded upon the same claim or demand, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which might have been offered for that purpose. Slater v. Sklrving, 51 Neb. 108.</p> <p>2. -: -. A fact or right in issue determined specifically or generally by the decree of the court cannot be again litigated by the parties to that suit, over the winning party’s objections, without a modification or vacation of that decree.</p>

<p>Appeal: Evidence. Wliere conflicting evidence has been fairly submitted to a jury in an action at law, the verdict will not be set aside as contrary to the evidence, if there is sufficient evidence to sustain it, even though this court upon a consideration of all of the evidence might have reached a different conclusion.</p>

<p>Appeal from the district court for Seward county: George F. Corcoran, Judge.</p>

<p>1. Mechanics’ Liens: Time oe Filing: Evidence. “When more than four months intervene between items of an account for material furnished a mechanic’s lien will not attach for the items preceding the hiatus, unless it is made to appear by competent evidence that all the items were furnished pursuant to one contract.” Henry é Goatsworth Go. v. Fisfierdiolc, 37 Neb. 207.</p> <p>2.-: Authority oe Tenant. A tenant cannot, without the authority, expressed or implied, of the landlord, charge the leased premises with a lien for material used in repairing a building thereon.</p>

<p>Appeal from the district court for Furnas county: Robert C. Orr, Judge.</p>

<p>Appeal from the district court for "Webster county: Harry S. Fungan, Judge.</p>

<p>Appeal from the district court for Johnson county: John B. Raper, Judge.</p>

<p>Error to the district court for Cass County: Harvey D. Travis, Judge.</p>

<p>1. Wills: Construction. Where a testator in his will devises specific realty to his wife, bequeaths all his personalty to her absolutely and unconditionally, and devises the rest and residue of his estate to a trustee, with directions to give her during her lifetime the income therefrom and the proceeds of any sales made pursuant to her written directions, and at her death to distribute what is remaining of the trust estate among testator’s collateral relatives, the words “rest and residue”, in absence of language showing a contrary intention, mean the estate remaining after payment of charges, debts and particular legacies, including the payment of any statutory allowance fixed by the county • court for the temporary maintenance of the widow and -received by her for that purpose.</p> <p>2.-: Suit eor an Accounting: Pleading: Estoppel. Where a petition in a suit to require the widow -of a testator to account to his brothers and sisters according to an oral promise to divide among them annually, after deducting her living expenses, the income of an estate which passed to a trustee under a residuary clause in his will, alleged that she received from the estate $12,-000 a year and that $5,000 a year was sufficient for her support, answers denying these allegations and containing admissions that she had received from the income of the trust estate part of a statutory allowance fixed by the county court for her temporary maintenance did not preclude her, ,as a matter of law, from subsequently asserting that she should not be charged in the accounting with the sum thus received.</p> <p>3. Appeal: Mandate: Construction. Where the district court, in proceeding under a mandate to try an issue defined by the supreme court, determines the issue in harmony with the law and facts, the mandate, upon a subsequent appeal, will not he so construed as to make th,e decree erroneous.</p> <p>4. Wills: Suit eor an Accounting: Estoppel. In an accounting between. an estate which passed to a trustee under the residuary clause of a will and testator’s wife who was the principal beneficiary of the trust, where the trial court was directed by mandate of the supreme court to charge her with sums received by her out of the trust estate, a rejected demand by her at a former trial for a decree for the amount due her under the will, less sums paid to her from the trust estate by order of the county court for temporary maintenance, does not estop her from asserting, as a matter of law, that such payments were not chargeable to her, because they were expenses paid out of the income from the realty of which the testator died seized, as distinguished from the residue which passed into the trust estate; the record showing that the facts and law were equally within the knowledge of both parties, that plaintiffs were not misled, and that they did not change their position or withhold any proofs by reason of such conduct.</p> <p>5. Appeal: .Remand: Estoppel: Pleading. A statement or admission made in a brief filed in the supreme court, to be available as an estoppel in the district court after the case has been remanded for further proceedings, must be pleaded and proved.</p> <p>6. Judgment: Interest. In an accounting between an estate which passed to a trustee under the residuary clause of a will and testator’s wife who was the principal beneficiary of the trust, a decree for the balance due her is a decree for the payment of money, and draws interest from the date of rendition at the rate of 7 per cent, per annum. Comp. St. 1909, ch. 44, sec. 3.</p> <p>7. Wills: Accounting: Credits. In an accounting between a trust estate consisting of realty which passed to the trustee under the residuary clause of a will and testator’s wife who was the principal beneficiary and entitled to receive from the trust estate an annual allowance of $5,400, she may be credited with the net proceeds of personalty bequeathed to her, where they were mingled with the income from the realty and used for the benefit of the trust estate by a special administrator when the will was being contested, she having been charged, on equitable grounds, with a sum received by her from the real estate of which testator died seized.</p>

<p>Intoxicating Liquors: Appeal: Dismissal. “The supreme court may on its own motion dismiss remonstrator’s appeal from a district court’s order sustaining a saloon-keeper’s license, where the record shows that the term for which the license was issued has expired, and that during its existence appellant made no motion to advance the case for determination.” Heesoh v. Snyder, 85 Neb. 778.</p>

<p>1. Appeal: Law of Case. 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 not be reexamined in a subsequent appellate proceeding.</p> <p>2. Bastards: Judgment: Enforcement. The provision of the statute which requires a reputed father to give security to perform the order of the court, and the further provision that, in case he neglect or refuse to give such security and pay the costs of prosecution, he shall be committed to the jail-of the county, to remain till he shall comply with the order of the court, are cumulative remedies, and the plaintiff in a bastardy suit is not limited thereby in the use of all the means to which resort may be made to enforce the payment of judgments in ordinary cases.</p> <p>3. -: -:--. And in such a case, where the defendant is in default of payment of any instalment due under the judg ment of the court, said judgment, as to such past due instalment, may be enforced by execution, as in other cases.</p> <p>4. --: Modification. A judgment in bastardy proceedings, requiring the defendant to pay for maintenance a given sum at stated periods, is subject to the future order of the court discontinuing tbe payments, upon a showing that maintenance is no longer necessary.</p> <p>5. -: Order for Care and Custody: Effect. The fact that by proceedings under the statute the care and custody of a bastard child shall by order of the court be awarded to some third person, or to a children’s home, for the purpose of providing such child with a suitable home where it may be educated, clothed and properly brought up, is immaterial when it further appears that said child has not been actually taken into the custody of such third person or children’s home, but has at all times remained with the mother.</p>

<p>1. Election of Remedies. If one who is entitled to rent from the occupant "of real estate prosecutes an action of forcible entry and detainer and other actions hostile to the possession of the occupant, and fails in said actions, this will not constitute such an election of remedies as to defeat his subsequent claim for rent. He is not precluded from resorting to a remedy which the law gives him because he has attempted to avail himself of one to which he was not entitled.</p> <p>2. Vendor and Purchaser: Conveyance: rtENTS. A sale and conveyance of real estate transfers all of the interest of the grantor in the land, including rents not then accrued.</p> <p>3. Judgment: Set-Off. A court of equity may in its discretion allow a set-off of a claim against a judgment upon the ground of the insolvency of the judgment creditor.</p> <p>4. Landlord and Tenant: Action for Rent: Set-Off. An unsuccessful attempt to evict a tenant by a landlord will not defeat his claim for rent, although damages caused by wilful interference with the rights of a tenant may reduce his liability for rent.</p> <p>5. Appeal: Damages: Review. When a claim for damages has been disallowed by the judgment of the trial court, it is the duty of the party appealing therefrom to point out in his brief the evidence in the record, if any, supporting his claim and from which the amount of alleged damages can be computed.</p> <p>6. Judgment: Set-Off. In an action in equity to set off a claim of plaintiff against a judgment, the lien of attorney for services in procuring the judgment will not be allowed to reduce the amount of the set-off, if the judgment is sufficient to satisfy both the set-off and the attorney’s lien.</p>

<p>1. Trial: Instructions: Preponderance oe Evidence. When several witnesses contradict one witness as to a material fact, and the court in its instructions tells the jury that “by a preponderance of evidence is not necessarily meant the greater number of wit nesses testifying on one side or the other, nor to any given fact or set of facts”, and the court also attempts to recite in its instructions the matters properly to be considered in determining the preponderance of the evidence, such instructions should be complete and embrace all matters disclosed by the evidence that ought to be so considered by the jury.</p> <p>2. -: -. It is,not error to refuse an instruction that is so indefinite that it might be reasonably understood by the jury to mean that they should consider the number of witnesses called by a party in a trial in determining the facts as to which they testify.</p> <p>3. Street Railways: Injury to Passenger: Expert Evidence. In an action for damages for personal injury, there being evidence tending to prove that negligence of the defendant caused the plaintiff to fall upon the pavement, it is not error requiring a reversal of the judgment to permit a qualified physician, who has shown himself competent as an expert, to testify that a fall upon the pavement could have caused the injuries from which he found the plaintiff suffering upon examination after the accident, the defendant having an opportunity to cross-examine such witness as to whether in his opinion the fall was the cause of the injuries.</p> <p>4. Trial: Evidence: Refusal to Strike. When a witness gives a proper but incomplete answer to a proper question, it is not error to refuse to strike out such, answer.</p>

<p>Application to modify opinions in case reported in 84 Neb. 834, and 85 Neb. 830.</p>

<p>Appeal from the .district court for Adams county; Harry S. Dungan, Jtjdgs,</p>

<p>Appeal: Coxflhting Evidence: Affirmance. Where the sole question involved is one of fact upon conflicting evidence, and there is sufficient to sustain the verdict, the judgment will he affirmed.</p>

<p>Personal Injuries: Evidence: Review. Action by plaintiff against defendant for damages resulting from personal injuries caused by a fall upon tbe sidewalk by reason of plaintiff having stepped upon a hidden tomato which slipped under his foot, causing the accident. An ordinance of the city of Omaha, in which the accident occurred, making it unlawful for any person to throw or leave upon the sidewalk of the city any straw, rubbish, or other refuse was Introduced in evidence, but there was no evidence that defendant had violated any provision of the ordinance, or was in any way responsible for the presence of the tomato upon the sidewalk. Held, That the verdict and judgment in favor of defendant should be affirmed.</p>

<p>ArPEAL from the district court for Otoe county: Harvey D. Travis, Judge.</p>

<p>1. Executory Contract: Breach: Damages. “Where a contract is executory, one party has the legal right to stop performance on the other side by an explicit direction to that effect, subjecting himself to such damage as will compensate the other party for being stopped in the performance of his part at that stage in the execution of the contract.” Baches v. Schlich, 82 Neb. 289.</p> <p>2. Sales: Non acceptance: Damages. Where a buyer wrongfully neglects or refuses to accept and pay for goods under an executory contract for sale, the seller may maintain an action' against him for damages, and the measure of damages is the loss directly and naturally resulting in the ordinary course of events from the breach of the contract. Ordinarily it is the difference between the contract price and the market price at the time and place where the goods ought to have been accepted.</p> <p>3. Depositions: Filing: Neglect of Clerk. Where a deposition has been actually delivered to the clerk of the district court for filing a sufficient length of time before the trial, the fact that the clerk failed to place a filing mark upon the wrapper could not deprive the party filing of the right to use the deposition.</p> <p>4. Sales: Countermand: Waiver. Where, after a buyer had countermanded an order for goods, the seller refused to recognize the countermand and delivered the goods according to contract, and the buyer, when notified by the carrier, went to the station and took a portion of the goods for the purpose of testing the same, he thereby treated the contract as still being in force, and waived the countermand; his action being inconsistent with his contention that the contract was not then in effect.</p> <p>5. -: Nonacceptance: Action for Price: Instructions. Where the seller in an executory contract for the sale of goods which were delivered to a carrier for the buyer receives notice that the buyer will not accept the goods, and, notwithstanding such notice, brings an action against the buyer for goods sold and delivered, it is error to instruct the jury that, if they find for plaintiff, he is entitled to recover the purchase price of the goods, since the allegations of the petition as to sale and delivery and the proof do not agree.</p> <p>6. -: ■—-■: Remedy. Where title to goods has not passed, and where the contract is executory, the only remedy of the seller, where the buyer refuses to accept the goods, is to sue for his damages for breach of the contract.</p>

<p>Appeal from the district court for Dakota county: Anson A. Welch, Judge.</p>

<p>Error to the district court for Red Willow county: Robert C. Orr, Judge.</p>

<p>Appeal from tlie district court for Douglas county: Alexander 0. Troup, Judge.</p>

<p>1. Mandamus. A mandamus proceeding in Nebraska is an action at law.</p> <p>2. Appeal: Motion for New Trial. In an action at law the defeated party will not be heard to complain on appeal that the judgment is not supported by the evidence, if he does not raise that question in the district court by a motion for a new trial.</p> <p>3. -: Remand. Where a cause is reversed and remanded by this court, with a direction to the district court to enter a judgment as prayed for in the petition, the trial court has no discretion, but must render a judgment in conformity with the mandate.</p> <p>4. Former Adjudication. The right of the relator herein to a writ of mandamus was adjudicated by the opinion and judgment rendered on thp former appeal of this case, and reported in State v. Farrington, 80 Neb. 628.</p>

<p>Appeal from the district court for Plutfce county: George H. Thomas, Judge.</p>

<p>Cities: Defective Sidewalks: Liability of Abutting Owner: Petition. Under sections 120, 121, ch. 12a, Comp. St. 1907, empowering the mayor and council of the city of Omaha to repair sidewalks with “such material and in such manner as they deem necessary”, and making owners 'of abutting property liable for all damages occasioned by their failure to keep adjacent sidewalks in repair, a petition to recover from an abutting owner damages for personal injuries resulting from his failure to repair an adjacent sidewalk held demurrable, where it did not allege that the city in notifying defendant to make repairs indicated the manner of making them or the kind of materials to he used.</p>

<p>Appeal from the district court for Colfax county: Conrad Hollenbeck, Judge.</p>

<p>1. Appeal: Law of Case. A decision oí this court on a former appeal of a question of law presented by the record is thereafter the law of the case.</p> <p>2. Evidence examined and referred to in the opinion, held sufficient to sustain the judgment of the district court.</p> <p>3. Appeal in Equity: Findings: Review. “In a suit in equity, where the court makes special findings, and omits therefrom some fact, conclusively established by the evidence essential to the decree, such fact, on appeal to this court, will be treated as though found by the court.” Lynch v. Egan, 67 Neb. 541.</p>

<p>1. Boundaries: Establishment: Pleading: Answer. In an action in which the location of the division line between the real estate of the respective parties is in issue, an allegation in the answer that a surveyor located the line, and that the plaintiff has ever since such location acquiesced in the line as located, and that defendant built his fence on said line and improved his land “up to said line as the boundary between them; and has so continued ever since,” does not state a defense, without the allegation that the 'parties agreed upon the line so located as the boundary line, or that the same was so located not less than ten years prior to the commencement of the action.</p> <p>2. -: -. In. determining the boundaries of land depending upon the true center of a section line, and various surveys by different surveyors disagree as to the true center, the survey that takes the section corners connected by said line as the basis of the survey, those corners being then found by the monuments of the government survey, will control, rather than a survey made later when the government monuments are not found, and the necessary section corners are found by measurements from distant monuments. When monuments fixed by the government survey can be found they will control as to the location of the section corners.</p>

<p>1. Courts: Questions of Practice: Stare Decisis. This court is not ordinarily hound by the construction put upon statutes by former opinions, if such construction is dictum only, being unnecessary to the determination of the case then before the court, but when such construction involves a question of practice only, and has been for more than 19 years followed by the trial courts, and indirectly several times approved by this court, it will be followed until changed by the lawmakers.</p> <p>2. -: Venue: Commencement of Action. The former decisions of this court, construing section GO of the code to mean that an action under that section can be begun only in the county where the defendants or some one of the defendants resides or is present in the county at the time of the commencment of the action, are adhered to, and in such case the action is deemed to be commenced as to the defendant so served at the date of the summons which is served upon him in the county in which the action is begun.</p>

<p>Statute of Frauds: Interest in Land. A contract by which two men agree together to construct a ditch upon the land of a third party is not a contract for an interest in land, and is not within the third section of the statute of frauds.</p>

<p>Rehearing of case reported in 84 Neb. 550.</p>

<p>1. Mortgages: Foreclosure: Mistake: Relief. A was the owner of four adjacent and adjoining lots in a platted addition to a city, their numbers being 13, 14, 15 and 16, of the value of $50 each. There were 24 lots in the half block, numbered from 1 to 24, consecutively. He attempted ' to construct a dwelling-house on lots 15 and 16, and to aid in such construction borrowed money from B, and to secure the payment of the same executed a mortgage on lots 15 and 16. By the mistake of both A and B the house was built upon lots 17 and 18, to which A had no title. Later C, a stranger, removed to and settled in the city, and, upon being informed by both A and B that the house was located upon lots 15 and 16, purchased said lots 15 and 16, paying $950 therefor. $700 of the purchase price was paid to B in satisfaction of his mortgage thereon, and the remainder of the purchase price to A. A then executed a mortgage to B on lots 13 and 14 for the purpose, of constructing a house’ thereon. He partly completed the house, when it was discovered that it stood on lots 15 and 16, which lots belonged to C, when he abandoned the same, and C took possession, and B commenced suit to foreclose his mortgage on lots 13 and 14 and the house on lots 15 and 16. It is held that as the mistake originated with A and B, and C purchased relying on their representations, and had paid full value for lots 15 and 16 with the improvements thereon, the major portion of the purchase price having been paid to B, B was not entitled to any relief as against C.</p> <p>2. Mechanics’ Liens. “A mechanic’s lien in favor of a principal contractor grows out of the contractual relations between the owner of the property improved, or his authorized agents, and such principal contractor, and the right thereto is based upon contract and for the purpose of securing debts due thereunder.” Hust-Owen Lumber Go. v. Holt, 60 Neb. 80.</p>

<p>Error to tlie district court for Harlan county: Harry S. Dungan, Judge.</p>

<p>1. Appeal: Law oe Case. A decision of this court on a former appeal of a question presented by the record is thereafter the law of the case; and when the evidence is substantially the same as on a former appeal, the weight and effect, to be given such evidence must be considered as foreclosed by the former decision on that point. Mead v. TzschucTc, 57 Neb. 615.</p> <p>2. --: Damages: Instructions. Where damages are sought to be recovered for two causes, for one of which the defendant may be responsible, while for the other he is clearly not responsible, it is reversible error to submit both causes to the jury; and where in such ease a general verdict is returned for the plaintiff, a new trial should be awarded.</p>

<p>Appeal from the district court for Johnson county: Leander M. Pemberton, Judge.</p>

<p>Appeal from tbe district court for Chase county: Robert C. Orr, Judge.</p>

<p>Mortgages: Foreclosure: Misrepresentations: Relief. Where certain. personal property was exchanged for real estate, and a note and mortgage upon the land was given to cover the excess in value of the real over the personal property, the note and mort gage will be canceled and set aside in the hands of the original payee, when it appears in an action to foreclose the mortgage that the property was of equal value at the time of the exchange, and that the mortgagors, who were ignorant of land values and had so informed the other party, had been deceived and misled as to the value and quality of the land by the owner of the land and by their agent, who, in fact, was also acting for the owner, but which fact was unknown to them.</p>

<p>1. Deeds: Cancelation: Mental Capacity. Mental incapacity to execute a deed is not established by proof that the grantor was eccentric, quick-tempered, profane, advanced in years, and in a degree influenced to make the conveyance by prejudice against a son, stepson and his wife, where it further appears that he knew the value of property generally, exercised good judgment in purchasing merchandise for himself and family, remembered the exact amount of his financial obligations, and paid them promptly, deliberately determined for himself the disposition he desired to make of his property and carried out his purpose by executing the deed in question.</p> <p>2. -: Delivery. Where the delivery of a deed is in issue, proof that the grantor admitted he had delivered the instrument, and thereafter he commenced an action to cancel it for reasons other than nondelivery, justifies a finding that the instrument was delivered.</p> <p>3. -: Fraud: Parent and Child: Presumptions. A presumption of fraud or undue influence does not arise solely by reason of the fact that a deed from a parent to his child was voluntary.</p>

<p>1. Pleading: Damages. Tlie pleader in an action to recover unliquidated damages must state in his petition facts sufficient to warrant the conclusion that the defendant’s alleged wrongful acts were the proximate cause of the damages demanded.</p> <p>2. —• -: -. And this rule applies whether the action is upon contract or sounds in tort.</p>

<p>1. Highways: Dedication: Evidence. The fact that a landowner dedicated a portion of his land for highway purposes may be established by parol evidence concerning his declarations and conduct.</p> <p>2. -: Petition. A petition praying for the location of a public road, addressed to county commissioners in 1888, although silent concerning the width of the highway, should be construed to request a road 66 feet wide.</p>

<p>1. Justice of the Peace: Entry oe Judgment. A justice of the peace, in a case tried without the assistance of a jury, where property has not been attached or the defendant arrested, must render judgment within four days after the close of the trial, and in computing time, under section 1002 of the code, he should include the day of trial and the day of judgment.</p> <p>2. Cases Distinguished. Keeley Institute v. Riggs, 5 Neb. (Unof.) 612, and People’s Building, Loan <& Savings Ass’n v. CooJc, 63 Neb. 437, distinguished.</p>

Original application for a writ of mandamus to require respondent to deliver to relator the records, etc., of the office of county superintendent of public instruction of Dakota county.

<p>Cities: Ordinances: Validity. .Under the charter of the city of Omaha, as it existed October 11, 1905, an ordinance not published two weeks before it was passed held void, where it modified conditions of a former ordinance under which the Omaha Gas Company obtained its charter.</p>

<p>3. Trial: View of Premises: Review. Where a controlling question involved in a case tried to the court is the topography of a certain locality, and the trial court, by consent of and in company with the parties and their attorneys, personally visits such locality' and views the topography thereof, its findings upon such question are entitled to great weight with the reviewing court,</p> <p>8, Waters: Prating®; JAabiutt, “An owner’s right †-9 discharge surface water from bis premises does not extend so far as to permit him to collect it in a volume and by means of an artificial channel discharge it upon another’s land, contrary to the natural course of drainage, to the latter’s damage and detriment.” Todd v. York County, 72 Neb. 207.</p> <p>3. Limitation of Actions: Flooding of Lands: Accrual of Action. The right to damages for the wrongful flooding of land by the digging of a ditch which collects surface water in a volume and directs it in a course, contrary to the natural course of drainage, does not accrue when the ditch is dug, but when the flooding of the land actually results.</p>

<p>Error to the district court for Cass county. Leander M. Pemberton, Judge.</p>

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

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

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

<p>Appeal from the district court for Douglas county: Alexander (3. Troup, Judge.</p>

<p>Error to the district court for Kearney county: Harry S. Dungan. Judge.</p>

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

<p>1. Executors and Administrators: Sale of Land: Confirmation: Notice. An administrator’s sale of real estate under license to pay debts may be confirmed by the district judge in vacation at chambers without 10 days’ notice, under section 498 of the code, being given.</p> <p>2. -: -: Proceedings in Rem. Such proceedings are of the nature of proceedings in rem, and are not actions governed by the provisions of the code.</p> <p>3. -: -: Homestead: Evidence. Real estate consisting of a house and part of certain lots in an incorporated city was purchased by a widow, whose only child was an adult married son living in another state. She lived in the house and rented rooms, had no one living with her as a member of her family, and there was no one under' her care and maintenance. After her death the son claimed the property as the homestead of his mother as against a purchaser at an administrator’s sale to pay debts of her estate. Held, That the property was not exempt under section 2, ch. 36, Comp. St. 1909 (Ann. St. 1909, sec. 6276), and section 15, ch. 36, Comp. St. 1909 (Ann. St. 1909, sec. 6289).</p>

<p>Tax Liens: Foreclosure: Order of Sale. In an action to foreclose a • tax lien the owner of a junior lien was made a party and found to have a second lien on the premises. The property was sold under the decree, the sale confirmed, and a deed delivered to the purchaser, but the proceeds were not sufficient to pay any part of the. second lien. The purchaser, two years afterwards, conveyed the property to her mother, who was the mortgagor. Subsequently the clerk of the district court, at the request of the holder of the second lien, and without an order of court, issued an order directing another sale of the property to satisfy the second lien. SelcL, (1) That, under the facts proved, the order of the district court recalling the order of sale was warranted; (2) that the second oi’der of sale was issued by-the clerk without authority.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, Judge.</p>

<p>Appeal from the district court for Boone county: James R. ILanna, Judge.</p>

<p>1. Highways: Prescription. By continuous, adverse user under claim of right for ten,years the public may acquire a highway along a section line through cultivated lands.</p> <p>2. -: -: Estoppel. The power to establish, change, maintain or abandon public highways having been committed by the legislature to the county board, petitioners for the opening of a section-line road, the county clerk, viewers and appraisers, when acting independently of the county board in taking preliminary steps authorized by statute, cannot estop the county from asserting that the road had already been acquired by adverse user.</p>

<p>1. Process: Service: Presumptions. Where the return of a sheriff recites that he served the summons, on which the return is indorsed, the presumption is that he performed his duty in making the service.</p> <p>2. -: -: Impeachment. The return of a sheriff that he served a summons on defendant can only be impeached by clear and convincing proof.</p> <p>3. Judgment: Suit to Cancel: Meritorious Defense. A suit in equity to cancel a judgment rendered by default in an action at law in which a summons was legally served on defendant should be dismissed, where the facts pleaded and proved fail to disclose a meritorious defense to the original action.</p>

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

<p>1. Mechanics’ Liens: Subcontractor. A plaintiff who completed a job of'grading on the roadbed of a railway held to be a subcontractor within the meaning.of the laborers’ lien law, where his proof showed that the work was orally sublet to him, through his father, by the original contractor, that the subcontract was made for his benefit, that he used his own grading outfit, and that he paid the laborers with his own money.</p> <p>2. -: Construction oe Act. The statutes providing for mechanics’ and laborers’ liens are remedial enactments and should be liberally construed.</p> <p>3. -: Description oe Premises. In a subcontractor’s lien for a job of grading on the roadbed of a railway, a description is sufficient, when it will enable a person familiar with the locality to identify with reasonable certainty the premises intended to be described.</p> <p>4. -: -. In a subcontractor’s lien, the description, “Grading and excavating on the Chicago, Burlington and Quincy Railway right of way between A and D streets in the city of South Omaha, Nebraska,” held sufficient, where the right of way described is the only one owned by that corporation between the streets named.</p> <p>5.-: -. “The fact that an affidavit for mechanic’s lien contains a description of more land than will be subject to the lien will not render the proceeding void, if not done with a fraudulent intent,” White Laiis Limber Oq. v< Itussell, 2? Reft, J26,</p>

<p>Error to the district court for York county: George P. Corcoran, Judge.</p>

<p>Appeal from tlie district court for Douglas county: Howard Kennedy, Judge.</p>