Omaha daily bee., 1890-01-02
snpreme Cour. Opinions.

supreme SOuFt optulOUs.
Opinions in the following causes were
fled in the supreme court late yesterday
evening:
Cheney vs Campbell. Appeal from the
district court for Johnson county. Reversed
and decree for plaintiff. Opinion by Max
well, j. Certain notes given for grossly
usurious interest and secured by q second
mortgage on real estate, were transferred to
a BONA tide holder for one half Of their face
value, the claim of the purchaser being that
the security might be Inadequate. In an
action by his executor to foreclose the mort
gage; held, that the same rule would be np-
piled as where the original consideration
was wholly fraudulent and the recovery
would be restricted to the amount paid by
the purchaser with legal interest thereon.
Rover VS. Foss. Error from the district
court of Saline county. Affirmed. Opinion
by Maxwell. j.
Garneau Cracker Company VS. Palmer.
Error from the district court for Douglas
, county affirmed; opinion by Reed, Oh. j.
l. A verdict of a jury and judgment there
on Will not be set aside as being unsupported
by the evidence, when the bill of exceptions
shows upon its face that all the evidence
submitted to the trial jury is not before the
supreme court;- all Prescriptions being in
favor OF the regularity OF the proceedings of
the district court.
2. An instruction that it was the duty of a
master who employed a servant IN the use
of machinery to use ordinary aud reason
able care and Judgment in providing suit
able and safe machinery for the use to which
it was to be put, held, not erroneous by rea-
son of the use of the word Judgment: 1t
being SYNONYMOUS with prudence" IN the
SENSE In which it was used.
Kettler VS. kettler, Error from the DIS
trict court for Douglas county, affirmed;
opinion by Maxwell, j.
l.. In an action to dissolve a partnership
and for an accounting, the case was referred
to n referee who made findings of fact and
in favor of the plaintiff for a sum in excess
of that claimed in the petition. Exceptions
to the report were thereupon filed which
were overruled, but the Judgment was re-
duced TO the sum claimed In the petition,
with interest thereon; held; no error.
2. Report ana Judgment fully sustained by
the evidence.
Hendrickson VS. Sullivan, error from the
district court for Cass county, reversed and
~remanded; opinion by Reese, c. j.
White Va State, error from the district
court for Douglas county, reversed and re-
manded; opinion by Cobb, j.
l. A title is no part of \ complaint, made
before a magistrate charging a person with a
criminal offense, and in a complaint charg.
ing NJ with having committed the crime OF
larceny, the words Estate VS. M. and W."
placed in the upper left hand corner of the
paper upon which such complaint is written,
held not sufficient to make such complaint u
JOINT one against Nj. and w.
2. A complaint under oath, made before O
magistrate; held necessary to give such
magistrate jurisdiction to make a preliminary
examination OF O person accused of crimlnal
offense.
8. An examination made by a magistrate
OF a person accused of crime, where the
magistrate has not jurisdiction, is not "a
preliminary examination thereof, as pro.
vided by law, in the sense OF those words
as used in section 5S5 of the criminal code.
4. An information flea in the district
court by the county attorney against an
accused person for an offense for which such
accused tperson had not had a preliminary
examination as provided by law, ~confers nc
| jurisdiction upon said district court to try
and punish said accused person for such
%offense, unless in the excepted cases provided
for in section 5s5 of the criminal code.
Rice VS. Saxon, error from the district
court for Jefferson county. Affirmed. Opin
| Ion by Maxwell, !.
Hancock & Waters va Stout. Error from
the district court OF Lancaster county
Reversed and remanded. Opinion by Reese
Oh. J.
Vorce VS. Page. Error from the district
court for Douglas county. Affirmed. Opinion
by Reese, Oh. j.
l. Where an attorney appears in a cans'
| the presumption is that he has authority ant
that presumption is continued until the wan,
OF such authority il established by proof.
2. The question OF the authority Of suct
| appearance was submitted to the tria
jury specially and they found that the ap
II IttAa1 NV VI tohhoOl IVA pIOCCGutlkA uDOI
which plaintiffs rights were based was with
out authority. Held, under the evidence
the finding of the jury was conclusive.
.. Where service of notice is made by pub
| LEGATION and no appearance Is made by the
defendant jurisdiction will be acquired for
no other purpose than granting the release
demanded in the petition, and of which no.
tice was given.
Brooks vs. State. Error from the distric'
court for Lancaster county. Verdict Sc
aside and cause remanded. OPINION by Max
| well, j., Reese, Oh. j., dissenting.
Republican Valley Railroad Company ".
Fink. Error from the district court fol
Gage county. Decree modified. Opini ION B.,
| Maxwell, j..
Murtagil VS. Thompson. Appeal from III,
district court for Fillmore county. Decree
modified. ODinioa by Maxwell, J.
Wicks w Nedrow. Appeal from the dis
trict court for Richardson county. Affirmed.
Opinion by Maxwell, ].
The Village OF Valparaiso VS. Donovan
Error from the district court Of Saunder.
county. Affirmed. Opinion by Maxwell. j
barton w. Union Cattle company. Appea
from the distact court for Sarpy county
Reversed and decree for plaintiff. Opinior
by Cobb, j.
Schields VS. Horbach. Appeal from the dis
trict court for Douglas county. Reyerset
and decree for plaintiff. Opinion by Maxwell
j., Reese, Oh. j., dissenting.
In 1864 one III. leased for three Years three
and one-hfth acres of land in o TO S. at
yearly rental OF S35. with tho right TO pur
chase for $1,000. S th~ereupon took possession
and erected two houses thereon. one for IN
family and one for his foreman. He thel
removed his family into Que OF said house.,
and has resided there ever since. In 1878
new lease was made by III aud also a ''propo
sitlon to s 70 purchase said premises'' TO
n IA a aUtNA ~ "a. AAAg NJ -