Omaha daily bee., 1896-05-09
SUPREME COURT sYrLAnI.

Coburn against watson Ht'u' y
Douglas county. Affirmed. oplhloh Wy
Judge Harrison.
An owner or party entitled to goods which
have been converted, who subsequently has
them, or a portion thereof. returned TO nm,
or. receives a portion OF the piSeGeuS MOI
thereby barred of his right Of action ior we
original wrongful taking, but proof OF sun
facts, or either of them, VIII De aNaii"p'e
on mitigation of damages.
2. The fact that property, has been taken
from a party who converted II, under or ny
virtue of legal process, or in any rnnnnvt,,
presents no defense to an action against
him by the owner or person ei5ts.eqh he .o shown
that such owner or person entitled to, the
property has received 1t, or the proceeds 3i
g. The measure of damages in an action
of conversion, by the MORTGAGE of personal
Ger who has levied and taken the property
by virtue of the process issued in favor OF
GT s1KS, value of the Of m fSe prGpert IS W ShS "t eon!
verted, with interest thereon from snch
time. deducting therefrom the market value
of any of the property afterward returned
to the mortgagee, or which he has received
or the proceeds of any of the rs - pro % an U1
not in any event to exceed the amount que
on the mortgage debt. A..
4, AS to the conclusions stated in the
three foregoing paragraphs, the decision on
the former hearing of this case reported III
SO Neb., 492, approved and foi omSsiiors pre-
| scented to this court, in its review of the
proceedings of an inferior tribunal, become
the law of the case, and ordinarily VIII nott
be re-examined in a subsequent reVieW oil
the proceedings Of the inferior tribunal on
a second trial or hearing of the cause.
6. In order to present for review the rul-
ings of a trial judge in excluding testimony,
the particular rulings S9mpiaimed ot must
Z. Held; that there was. no, evidence IRON
which it can, be determined whether ih n
be charged with the proceeds of certain
property sold by, a receiver, ana t0r me ne
this action asking a recovery.
s. Under the constitution Of 1875, a party
may, as a right, nave "a cause [ he c e
of last resort. and the legislature has no
authority to impose a penalty of 8 per cent C, !
Moore against Herrion, II Neb, 73' fol
lowed. uo,,
pa TwGa's ed sEa!nst A af&ms5i 6 6pFS5 f'I by
Judge Harrison.
= The evidence of a witness, given or used
on the trial of a cause, and who has since
died, is competent on a Sunseq nnt in 'f fbq
of the same action, and where not III ,n t
manner, prescribed or contemplated by law.
may be stated by any person who heard !.
substantially. =,
give his recollection of the evidence OF o
deceased witness, it must be shown, as q
foundation for the introduction of such evi.
dence in such manne for that II ac WaS fb nySV Sn
the same litigants, that the party agains,
whom II was given mad, from, me Hiallilei
Of its reception, an opportunity. 10 cross
examine the deceased witness, that 1t in
volved the subject matter, and that tmf
witness called to state 1t recollects anC
can repeat in substance the evidence OF lhe
2 Where in a trial before the judge oil
n district court without the interventlot
NJ a Jury a witness was allowed TO STATE
his recollection of the evidence OF a VIII
ness. given at a former trial OF the case
who had since died, no suihcient iouIua
lion having first been laid for the introduc
=. = IT. flnnn n 81 on MANNER. AIN
the witness making statements IN SiVint
his evidence which would have conplete'
the Foundation for its Introduction, 1t rem
ders the evidence competent. Tor consumers
tion in the determination OF the issues II
the action and cures the erTcs, II any, COIN
mitted by it's admission: .,,,
in an action of ejectment in winch auVtls
possession of real estate for the statutor.
nerIoG of ten years is relied upon as a de
Tense. 400 ,ronarty I,
tbis state bv virtue of the operation OF tn
statute of limitations there must have bee
maintained by the party asserting IL al
actual. continuous, notorious ana huvels
possession Of the, premises uudmrIieeTd G reamirc o.
nv the Statute. Calling against Lane, l
Neb., II; Lantry against Parker 81 NED
6. The evidence in this case examine
and held to show such acts. In respsct l
n piece of land not suitable 10 genera
ia rming purposes. but At for grazing, an
a portion of which was What Is tfIlne,
HAY land' as constituted actual c2RIihuIu
notorious and adverse possession for tn
time required by statute. rrro
Douglas County against Keller fn ptLo
from Douglas county. Affirmed. opihio
by Judge Norval. aoo,ston &