Omaha daily bee., 1895-05-06
surREMe coURr srLLanh


2. An objection on the ground that a par
ticular charge Of an information was not
included in the complaint upon which an
accused was held to 9nswer by the exam
ining magistrate will not be noticed by
this court on petition in error to review a
Judgment Of conviction where such prelim-
mary complaint Is not set out or made a
g. Evidence examinea and held to sustain
Code, for ths knowingly owning. using and
occupying of house in cthis state for the
purpose of prostitution.
4. Where afildavits are used as evidznc
on the trial of any Issue of fact, they must
be available for the purpose of revi7w by
petition in error in the court be Unidentified
and preserved in the form Of bill of ex-
S, To the district court and not to this.
has been entrusted the power to impose
against the laws of the state and the iudg-
ments Of that court will not be interfered
with on the ground that they are excessive
IN the absence of clear abuse of discre-
ton
Eastman against Cain. Appeal from
son.
The district courts and Judges are vested
with jurisdiction by statute 90 hear and
determine applications for the appointment
Of receivers in cases then pending in such
courts, and also, after appeal on the merits
to this court.
2. The district courts and Judges being
clothed with such jurisdiction, it is con-
sonant with the better practice to present
such applications to them and exc pt in
such cases where sufficient reasons exist
therefor this court will not entertain and
determine original applications for the ap-
pOintment of receivers
Mitchell against Jones. Error from Buff
falo county. Affirmed. Opinion by Commits
Where the sole question contested was
whether or not plaintiff in error had en-
ployed the defendant in error as physician
to render needed services for the daughter
of plaintin in error who was at the time
over Is years of age, the verdict of the
jury upon conflicting evidence will not be
disturbed on error proceedings in this court.
=. Johannsen against Miller. Error from
Commissioner Ryan.
In repleyin the right of possession must
be atfirmattvely shown to exist in favor of
the plaintiff and plaintiffs right to re
cover cannot be. pr dicted upon the mere
failure of the defendant afirmatively to es-
tablish in his own favor superior right in
that respect.
. Where the rights of plaintiff in an ac-
tion of replevin owe their existence to GER
tain written leases to parties from whom
plaintiff claims to have derived his superior
right of possession in the property repevined,
the failure to offer in evidence either such
original leases, or copies thereof, when ad-
missible, will operate to defeat plaintiff S
The State of Nebraska, ex. rel, The Lion
Insurance company against Baker. Man
The only qualifications prescribed by the
civil Code, for sureties on undertakings
section SOS, viz, That such sureties must
be residents of this state, worth double the
sum to be secured beyond the amount of
their debts, and have property liable to
execution in this state equal to the sum
to be secured.
2. A supersedeas undertaking executed by
several sureties but one of whom resides
in the county in which such undertaking is
required, the others being residents Of a
different county in this state, should not be
rejected on the ground that the resident
surety lacks the, necessary property qualif-
of the qualifications prescribed by law, and
the undertaking in lother respects satisfies
the requirem snts of the statute.
3. The decision Of the district court re-
fusing to require the approval by the clerk
thereof of particular undertaking for a
stay of execution pending proceedings by
petition in error is Ian order affecting "A
substantial right n2a summary proceeding
order which may be reviewed in this court
upon petition in error.
Bingham against Shade ct. al. Error
from Custer county. Reversed. Opinion by
Commissioner Irvine.
An undertaking given for the purpose of
to the district court Is approved by the
justice, if he receives 1t, examines it, and
expresses himself as satisfied" aud retains
2. Where a written instrument is altered
by one not claiming under it the party
long as its original character is susceptible
3. Therefore, where, after an appeal un-
dertaking had been approved by the JUS
tice of the peace some of the sureties
erased their names mes thsrefirrGm' this did not
quently did not release their co-sureties, the
obligee not knowing of or consenting to the
change.
4. The fact that the justice knew of the
erasure was not material. 1t was beyond
his power after approving the bond to de-
prive the oblgee Of his security.
Union Pacific Railroad company against
Johnston. Error from Douglas county
Bills of lading are symbols of property,
and when properly indorsed. operate as
delivery of the property itself, investing the
inLOrS1gS a 1t Y,
serves all the purposes of an actual pos
session and SO continues until there is
under and in pursuance of the bill of lad
ing to the person entitled to receive the
st. "a; Gates against Chicago, Burlington
q Quincy Railroad company, 60 n. w. 5S3,
followed.
2 The delivery of gods by a common car
rier to the consignee tn reof is made at the
peril of the carrier, unless when made the
made or indorsed to himself. Gates against
Chicago, Burllngtqn iH ,g & Quincy Quincy Railroad
5. K railway company issued to shippers
as follows
perNthe following described @ freight@p h -"-p
marked and consigned as noted below
the railway depot on payment Of freight
charges, together with such charges as
have been advanced on the same.
..Destiaation, GH~ Milwaukee, Ss;, WIS.," WIS.," '''"''
The bills of lading contained the follow
ing notations: Care Union Elevator, Coun-
ell Bluffs, Ia. Stop at Brown Bros Eeva-
tor company to clean. Transfer at Council
Bluffs
The carrier transported the grain to Coun-
Gil Bluffs and there delivered it to the
consignee named in the bills of ladng with
out requiring their presentation or surren-
der. The consgnse sold the grain to Bacon
& Co. of Milwaukee and drew on them for
its value with the bills of lading indorsed to
them attached to the drafts. Bacon & Co.
honored the drafts, presented the bills of
lading to the carrier and demanded the
grain, and, as it was not delivered, sued
the carrier for its value. Part of the
grain was delivered by the carrier, to the
consgnee named in the bills of lading be-
fore he indorsed and attached them to the
drafts drawn on Bacon & Co. Held: %.
That the bills of lading We're through CON
tracts, under and by which the carrier
agreed to transport the grain from the
places where IL received it 10 Milwaukee,
and there deliver Ii to the party entitled
thereto. (H That the notationS on the bills
of lading meant nothing more than that the
grain should go by way of Council Bluffs
to be cleaned there or transferred to
Of the elevator located there. (3) That the
carrier by the bills of ladng, contracted
to transport this grain to Milwaukee, and
there deliver il to the consignee named in
the bills of ladng or if they had been
transferred to the lawful holders of said
bills of lading. (D That Bacon & Co, by
honoring the drafts drawn against them by
the consignee named IN the bills of lading
became and We're entitled to have said
That the carrier by. delivering the grain
n a IN ntarT l9ata