Omaha daily bee., 1896-11-09
COURT iAocnEprNGs.

Clark against Marolf, Union Stock yards
against Stoddard, stephens against West
side Improvement Cumpauy,I and Doom
against Parish. affirmed; SNligsOhu against
November 5-Loncastcr County bank
against GilliCau. motion To 0rik, motion
for rehcaring overrulcd; lluWmcr against
Green. motion for leave 10 remit over
ruled: Capital National hank aEainst Cold
water National bank. cas9 set for hearing
with Nos GgTI 6g1S and I3i5: Omaha and
Florence I.nnd and Trust company against
Parker. Moore against Parker, and Mere
dith against Omaha, dismissed Gorder
against Conuor motion TO require app,ilrcs
to file briefs ovcrruled, Baldwin against
Fisher. motion FOR mandate sustained;
I.ittlCton Savings Bank against DonnClly,
advanced and affirmed; Krug Brewing
Lewclen against smith advanced State
eN rel Norfolk Beet Sugar company against
Moore leave to docket.
Court adjourned 10 Tuesday, November
IL. at o'clock a. m, when the following
cases will be called: EnglH against Hunt,
Baier against Croft, Maryott & McHuron
Norfolk National bank against Ncnow,
Grotte against NaEle, Harshman against
and Trust company against Barnes, Peck
against Nebraska Loan ana Trust COM
pany, Hayden against GDncSce Fruit com
pany. Hayden against Cappies Wooden
man. Haggerty against Walker, Chicago
Lumber company against benjamin; Bates
n
McCandless, First National Bank of Du-
buque against Mc<ibben, Bcagle against
Smith. SchlentZ against Rrkel Smith
Hayward against Hayward, Moran against
McCulum, RylCy against Sandean, ord
against Nash. Smith against Beagle. Pax
ton * Nerling Iron Works against Bates,
inson q Stokes company, Fremont, Elk
horn & Missouri Valley Railroad company
against Waters, HermgnCc against Gun
ningham, Omaha Loan and Trust com
MAJ u nj 1i ia ngt Tltl
Raymond Bros. against Miller. Farmers
Mutual Insurance company agsi'St Meesr,
Union Pacific Railroad company against
Metcalf & Wood Northern Assurance com
pany against Hamilton, Omaha Street Rail-
way company against Leigh. Omaha Fire
Insurance company against Creighton,
Wick Bros. Hartford Life aud Annuity In
surance company against Cummings Lisy
against Smith, Brothcrton against Manhat-
tan Beach Improvement association,
Drexel against Downing.
The commission for the examination of
applicants for admission 10 the bar con-
sistinG of Il. ]. Clements. w. d. Beckett,
T.. Martin, Roscoe Pound and f. =. Wig
ton. is in session preparing for the next
examination of applicants, which will be
sylabi of decisions handed down follow:
Andres against Kridlcr Error from
Douglas county. Opinion by Chief Justice
Post.
Courts OF general jurisdiction possess in
hCrcnt power to make ana enforce npcdful
rules for the transaction of business before
them, and In the absence of clear abuse
of such power their discretion in that re
gard will not be controlled by courts of
appellate jurisdiction.
3 Rulings except such as are made dur
ing the trial of a cause, 10 be available as
grounds for the reversal OF the judgment
by proceedings in error should be specially
assigned in the motion for a new trial.
Peterson against Reisdorph Error from
Douglas county. Affirmed. Opinion by
Chief .TustiC,, Post
Where in an action for malicious prose-
utlon the purpose of the proceeding com
planned Of is shown to have been the col
lection of debt, and not the enforcement
of the laws against crime, malice may be
inferred from that fact alone. the question
Peing one OF fact for for the Jury Ross against
2 one who before instituting a Grim
inal prosecution makes n FUN and complete
statement to the prosecuting attorney OF
all the facts within his knowledge. or which
lac could ascertain by the exercise of rca-
sonable diligence, bearing upon the guilt
of the accused. and in good faith acts tIpon
the advice OF such officer. will not be liable
to an action for malicious prosecution. But
II he withholds from counsel in such case
material facts within his knowledge the
advice received will be no protection in
an action by the injured party.
Evidence examined and held to sus-
tain the finding that the prosecution com
plained of was malicious and without
probable cause
Creighton against Haythorn. Error from
Keith county. Opinion by Chief Justice
An assignment of error directed gen
orally against group of instructions will
be considered no further than to ascertain
whether any one thereof was rightly given
or rightly refused.
2. Where the defendant in an action of
replcVin claims special interest only I'm
the property I'm controversy by virtue of
mortgage or other lien, his measure of
damage In case the property cannot be re-
turned is the amount of his lien with in
terest and cost, within the value of the
property.
3, verdict for the defendant in an ac-
tion OF replevin whose claim arises from
lien upon the property In controversy
without a finding as TO the value of his
possession Is not responsive to the issues
and Is contrary to law within the meaning
OF subdivision vi of section 3li of the code
Council Bluffs Canning company against
Omaha Tinware Manufacturing company.
Error from Washington county. Affirmed
Opinion by Judge Harrison.
Where a foreign corporation has bust
ness transactions in this state with citi-
zens and residents of the state. out OF
which arise accounts or claims AGAINST the
corporation, such accounts or claims may
be enforced in the courts of this state IL
y jurisdiction can be obtained by legal service
.. Service of summons upon the manag-
ing agent or the corporation is sufficient
TO confer jurisdiction under the provisions
of section 80 of the Code OF Civil Pro
ccdure.
3. Where the evidence is conflicting the
conclusions of the trial court thereon will
not be disturbed if there is evidence TO
sustain them.
Church against Callahan. Error from
Frontier county. Reversed and renanded
Opnion by Judge Harrison.
In the record presented to this court an
peared copy of a journal entry. in which
was set forth the overrulIrt; of a demurrer
by the trial court and that the demurrant
failed to plead or answer further, but
elected to stand on the demurrer Held.
that such recitals must he taken by this
court as true statements of what occurred
in the trial court.
2. The provisions of section "a of the
Code of Civil Procedure in relation to the
institution of an action in the name of n
firm are special in their character to be
strictly construed, and the prescribed mode
or procedure must be closely followed
3. IT, in an action commenced by part
nershp in the firm name, there is no state
ment in the petition that IL was formed
for the purpose of carrying on any trade
any species of property in this state" the
pleading Is open to attack by demurrer
on the second ground assigned by section
~ of the code. viz: THAT the plaintih has
not legal capacity to sue"
4, The action herein was one of con-
version TO recover the value of property
of which IL was alleged the firm had n
special ownership by virtue of a chattei
mortgage. Neither the mortgage nor a
copy thereof was attached to or appeared
IN the petition. but If IL had been pleaded
that the mortgage was executed to the
partnership by It's firm name, II would not
nave constituted II such an action as IS
contemplated by section % OF our code,
which is as follows: "In All actions upon
bills Of exchange or promissory notes or
other written Instruments. whenever any
OF the parties thereto are DESIGNATED hy,