Omaha daily bee., 1896-12-19
ore a court of Justice" Blacks Law

! IWNTIVWS WWNUWI
| charge OF one dollar taxed and collected
/ with the costs of a case for q second day 8
attendance upon such hearing by n justice
| Of the peace was not the charging or taxi
/ Fremont Ekhorn e Missouri Valley
Railroad company against Root Error
from Holt county, Affirmed. Opinion by
I Judge Harrison.
An assignment of "crrors Of law occur
| ring at the trial and duly excepted to at
the time" is sufficient in Il motion for a
/ new trial to raise a question OF error in
/ either the admission of exclusion of evil
dcnCe by the trial court, but is not suf-
( ncent I'm petition In error to present such
/ questions to this court for review. In the
I latter the assignment must be specific ana
( particularly designate the evidence In re-
gard to which 1t is complained the error
! occurred
>. The contract between a railroad COM
| pany as carrier and passenger dces
not contemplate that the passenger shall
go into the express car of train, aud II
! he go there and while there is injured, If
! his going or being in such car entered into
| the injury rs an element thereof as its
prONimate cause or rendering its reception
! defense for the carrier, but If not the proX-
! innate cause of the injury or the risk of
! such particular injury was not increased
! by the action of the passenger, then that
he assumed the position in the express car
! voluntarily would be no defense to an nC-
| tion for damages resultant from the injury.
J. Whether the party injured had at the
time ceased to be passenger of the de-
| fendant company. Held: Under the evil
| dence adduced to be question of fact for
| the determination of the jury.
4. Held: That under the allegations of
| the petition herein, Il recovery might be had
| for any injuries proved to have been sus-
| tanned by the party plaintiff in the char
actcr of a passenger as a lcensee on the
| company's premises or as trcspasser
| thereon.
5. The injuries complained of were Claimed
to have resulted from direct acts of the
conductor Held: That there was sufficient
| evidence to sustain a finding that the con-
~
| company and within the lines of his
| duties.
6. Where alleged errors in regard to the
| giving of instructions are assigned in group
| in the motion for a new trial and any in
struction of the group is determined TO be
without error, the alleged errors need not
be further examined.
I. When II is apparent that an instruc
! tion, If read and construed with others of
| the charge on the same subject or branch
| lated to confuse or mislead the jury, its
| giving was not erroneous.
s. Where the rendition of judgment on a
verdict for the plaintiff in an action of
| contract or tort is delayed during the
| pendency of n motion for new trial on
| behalf of defendant, it is not error to rem
| der judgment for the amount of the YER
| dict and interest from its date to the date
| of rendition of judgment.
9. The evidence held sufficient to support
| the verdict.
Royse against State National Bank Err
ror from Custer county. Affirmed. Opin-
| ion by Judge Norval.
The addition of the name of Il surety to
a promissory note after its delivery to the
payee, without the makers knowledge, is
not such an alteration as will release such
maker. Barnes against Van Karen, 81 Neb.,
l65
9 a bill of exceptions not authenticated
according to statute will be disregarded
upon review.
State ex rel Dahlman against Piper sec
retary of state. MandamuS. Writ denied.
Opinion by Judge Norval.
The original jurisdiction of the supreme
court, conferred upon 1t by the constitu-
tion, is confined to eases relating to the
revenue, civil cases in which the state
shall be party, mandamus quo warranto
and habeas corpus
2. The writ of mandamus can only be
invoked to coe1pel the performance of some
particular act which the law especially
cnjoins as n duty resulting from an office.
trust or station. AS n preventative remedy
1t cannot take the place of injunction.
3. Mandamus cannot be resorted to alone
for the purpose of compelling action. 1t is
not proceeding to correct errors.
4: An appeal or proceedings in error will
decisions of the secretary of state under
the Australian ballot law.
.. The findings of facts made by the sec
retary of state in passing upon objections
filed against certificates OF nomination if
not conclusive. are at least prma facie
right.
6. Under our Australian ballot law the
secretary of state in passing upon objec-
tions to nomination certificates, is not
confined to mere formal matters relating to
such certificates, but may determine from
extrinsic evidence whether the candidates
therein named were in fact nominated by
convention called and held according to
party usages and claiming in good faith
to represent political party which cast
the requisite number of votes at the last
election. State against Allen, ~ Neb. G5l;
Phelps against Piper, As Neb., 724 followed
Z. 1t Is neither the province of the secre-
tary of state or of the courts TO determine
which of the two rival state conventions of
the same party so called and held Is en-
titled to recognition as the regular conven-
tion supra.
s. Where rival factions of political
party in good faith nominate candidates
at conventions called and held in accord
certify such nominations to the secretarv
of state, he will certify to the several
county clerks the names of the candidates
nominated by each, supra.
State eX rel Dahlman against Piper, sec
retary of state. Mandamus. Writ denied
The decision in this case Is ruled nv the
state ex rel Dahlman against Piper, de
cded herewith
State ex rel Casper against Piper. sec
Opinion by Judge Norval.
The provisions of the statute. tsec. 1876
Ballot Law" requiring objections 5' it,'''f to n
certificate of nomination of candidates for
office to be filed within three days after
the filing of such certificate are man
datory, and must be strictly followed else
said certificate, If in conformity with law,
will be deemed valid. ~
Baacke against Baacke Error from Ian
caster county. Decree affirmed. Opinion
by Judge Norval.
The common law doctrine that tho rnyo-
cation of a will may be implied from sub
sequent changes in the condition or cir
cumstances of the testator obtains in this
state, insofar as it has not been modified
by statute.
2. An absolute revocation of n will cam
not be implied by law from the obtaining
of divorce from the testator by his wife
after the making of the will, the death of
one of his children, for whom provision
was made in the will, and the birth of
three children to such deceased child
prior to the testator's death.
State eX rel Rose against Piper Man
damus. Writ denied. Opinion by Judge
Norval
The secretary of state, in passing upon
objections to certificate of nomination for
public office, Is not confined alone to the
consideration of objections as to matters
of FORM but has the power to decide from
extrnsc evidence whether the candidate
named in such certificate was i'm fact nom
mated by a convention called and held i'm
accordance with the precedents and usages
of a political party which cast one per
centum of the votes of the state at the
last general election, or by n faction in
good faith claiming to represent n party
casting such percentum of the vote Of
the state.
3 Upon the facts in this case IT was
held that the secretary of state properly
refused to certify to the county clerks
the names of certain candidates for office.
Shafer against Hostetler Appeal from
Commissioner Ryan.
There is presented W tbiS apnanl n ,,,o.s