Omaha daily bee., 1897-10-21
FORCES STATE TO AMEND
Attorney General Must Attach Pondsmen's
Waivers TO His Main Case.
ALLOWED TO FILE AN AMENDED PETITION
Counsel Consume Day Struggling
for Technical AdvnntnEe-Trial
May Be Resumed
Today.

The opposing counsel in the suit against
the Battley bondsmen took turns yesterday
In waiting for each others next move In the
game 1t Is the defending bondsmen's move
this morning, and 1t depends very largely on
this whether OF not the case goes on at once,
or whether 1t will be postponed.
The delay Is the result OF the futile effort
OF Attorney General smyth to Introduce as
evidence in rebuttel the written agreements
OF the six original bondsmen that they
waived all legal objection to the ecuing OF
additional signatures to the bond when Gov
ernor Holcomb declared that he was not sat
isned with it. and handed it buck to BARLEY
20 get more suretles These agreements were
attached to the bond when it was approved
by Governor Holcomb on January 8, 1895.
three additional names having been secured.
Attorney General smyth did not think that
Il was necessary to int: oduce these wolvers
in his case in chief. But they are absolutely
essential now. in view of the defense OF the
bondsmen that they signed the bond of the
treasurer, BARLEY, who could be legally in
Quoted into office only by having his bond
approved OF January 3, 1895, the first day OF
the term, and not of the lsartley who was
treasurer only by sufferance because his bond
was approved four days later. Only by the
waivers can Attorney General Smyth break
January g. 1895, and, therefore, prove that
the bcndsmen knew BARLEY was not lnducted
into office on January 3, 1885, and that they
waived that fact
COURT HOLDS WITH THE DEFENSE.
When the attorney general tried to put the
waivers In evidence on Tuesday afternoon the
defendants objected and the court took the
matter under advisemcnt Yesterday mo ming
he sustained the objection, and said that he
would allow the state to introduce the waive 3
only as cart OF its case in chief. He spoke
follows:
II believe that 1t would not be proper to
admit these documents as rebuttal testimony.
j think however, that everything surround
ing the making of this bond should be
brought before this court and jury. [ regret
exceedingly that this condition exists. al
though | do not wish to be understood as
casting the slightest criticism on the at
torney general But / consider that it would
be error for me to admit this testimony
under the pleadings in the case, As the case
is OF such great Importance to the people of
the state of Nebraska, however, | will allow
the attorney general to amend his petition
as to include the waivers as a part of the
bond on which he Is suing"
With this amendment the defendants con
tend that the Issue in the case will be
changed materially They say that the at
torney general will be suing on a common
law bond instead of statutory bond,s two
entirely different contracts. Therefore, they
time to prepare defense.
Attorney General Smyth asked that he be
given until o'clock to amend his petition
and the request was granted.
AMENDED PETITION FILED.
1t was almost 3 o'clock before Attorney
General Smyth had drawn up the amended
petition and brought it into court. 1t in
cludes the allegations made before in the
original petition and the reply. 1t sets up
that the bond filed and received on jan
governor gave it back to BARLEY to get more
sureties; that Barley brought it back on
January o. 1895 with three more sureties, and
with the waivers OF the original bondsmen (;
that the bond was then approved.
The defending counsel insisted at once
that they must have time to examine the new
instrument and prepare an answer Judge
Powell gave them until this morning to do
this.
The bondsmen may ask that they be given
additional time to prepare defense. They
may Insist that enti ely new Issues have been
put forward by the state and may demand
that the case be commenced anew with an
entirely new jury. Yesterday they did not
know just what they would ask, or whether
they would be ready to go ahead with the
case from the point at which it is at now. II
Is certain that considerable time maybe two
evidence that will be deemed necessary in
connection with the new issues.
Attorney General Smyth said that he saw
no reason for any long delay. He maintained
that the matter of the waive made but lit
tie difference and he saw no reason why a
short time would not be sufficient to get in
all the needed testimony.