Omaha daily bee., 1898-03-14
SUPREME COURT sYLLAni.
Eayrs against Mason. Appeal from Dc

Ject matter OF the suit and of the parties
thereto. stlll party made liable by such
judgment, who has never appeared in the
1ction, and who was never given legal no.
tce. Of the pendency Of such action. may. in
a proper proceeding. either a cause of
action or defense. show that the recitals of
the record that he was served with the
process OF the court are false.
2. Suit was brought to forcclose a real
estate mortgage; the owner Of the equity Of
redemption of the land involved made de-
fendant thereto and constructive service
had ihs ,irs upon him BY publication. he being at
nsy of The sd no, and
In the action personally or by attorney.
After the decree the defendant died. Held,
the purchaser of the land at the sale under
the foreclosure decree. to quiet the heirs
title and redeem from the mortgage, that
OF the affidavit filed to secure constructive
service upon his ancestor, that he was then
a nonresident of the state and that service
of summons could not be made on him in
the state, were false.
g. There is no privity between an admin
decedents real estate. (Dundas against
Carson 27 Neb. ga Carson against Dun
das. 30 Neb. SOB. distinguished) u..
traitors action to quiet title is not a bar to
q subsequent action by the heir against
fne IN oe t T. IN the min sH
has descended to the heir from the admins
traitors ntestate.
! D. w men IL Is nOI apparent ITOIU tIle IdCe
Of a pleading that the action or defense Is
barred by the statute of limitations, then
the bar must be, raised by plea or 1t will
6. But when a pleading discloses upon Its
race that the action or defense Is barred
by the S Of taSn i'm thn sqSs S
pleading does not state cause of action
or defense.
Z. Whether the time in which an action
must be brought to quiet title 10 real es-
tate where the defendant asserts title there
TO by an unrecorded sheriffs deed which
the plaintiff claims is VOID is prescribed by
section 1g or section 6 of the Code OF Civil
Procedure not decided.
eon to- Sar o% Sde his pary M tn yea eaae
whether he be In or out of possession. and
whether his title be legal or equitable
one.
8. In an action to quiet title the stat
ute of limitations does not begin to run In
favor of the defendant until some assertion
of ownership or claim to the premises Is
10. Plaintiffs action was to quiet title by
having sheriff's deed held by the defend
ant decreed void and Cancelled as a cloud.
Neither party was In possession of the real
estate. The sheriff's deed had never been
under the deed. Held. that, so far as the
petition disclosed. plaintiffs cause Of ac-
tion accrued at the date the suit was
nlaI Horbach against omaha; Omaha; sR|,:s sARp|,sal from
statue a. autnGrTng m o yo os or nece
of ground within the corporate limits 80
| as to prevent stagnant water, banks of
earth or other nuisance accommodating or
existing thereon" and providing for the as
| ssssment of the entire expense of the i'm
| proyement against the property SO drained
| filled CT graded. Ia not in violation of the
provision of the constitution relating to
sreclal taxation for local improvements.
Of Of the poca raw bower s Of the
state.
| ,s,v ~,
| tice and an opportunity to do the work
| himself. the city authorities have no juris-
diction to proceed with the Improvement
until such notice and opportunity have been
| given.
When the statue in such cases requires
notice to the owner and no notice is served
| fray the expense of grading and filling the
same is wholly. void and will be Cancelled
Martin against Foltz Error from Dixon
&C unity. Reversed. Irvine, c.
l. Where village ,a ordnance provides $, for for
and fixes certain fees which must be paid
I before the animal will be released. no lien
ciuded within those specided.
2. In repevin, where, the plaintiff. has
taken, the property and the verdict IS for
the alternative for return Of the prop
| erty or its value IL a return cannot be had.
county. Reversed and dismissed. Harrison,
!. The title to lands Of which man dies
during his life and at the. time. of his death
was the homestead OF himself and family
vests in the widow. for life and remainder
the payment Of debts existing against
either the husband or wife at the time of
his DEATH except such as exist or have
ners prescribed in the chapter of the stat
utes relative to homesteads; and this Is
| true whether she. after the death of the
| husband. OcCuDies the DrODerty a home
2. The right of an administrator to pos
cedent died seized arises from its being
| subject to payment of debts of the dece-
dent and is not of force relative 10 a home
! stead.
Cummings against Hyatt. Appeal from
Custer county Affirmed. Harrison, c.. ].
fee is a freehoder within he meaning CT
the word as used IN section Il; chapter KY of
the Compiled Statutes relative to the sign
proper board praying the calling OF an cleo
ton and submission to tbs, vote of the
DIVISIONS q Of the Of
bonds in aid of works of internal improve
nents, It bsInE therein preseribed that the
2. The cause was submitted. to the trial
court with the. stipulation Of record that
ir regard to the required qualification of
| two of the signers of the petition the par
| ties knew. nothing and II the determination
OF the issues must hinge upon whether the
l TWO persons were Sucn S1SneTS as required
| by the law or not. the case should be con-
! tinued and testimony offered and receive !
| on the subject Held. that the petition
must be considered here on appeal as pre-
| sented and in the absence of proof to sus-
tain the allegations of the petition that thes se
| two persons We're not freeho,ders. II mus:
be presumed that they We're. and they must
! be so considered In determining to the
number of proper sgners of the petition.
| g. 'sWhile It Is within the province OF the
judiciary to declare invalid acts evidently
not designed to subserve public interest
If the subject matter of legislation be such
| that there is any doubt of its character
| or If by any reasonable construction 1t can
be held to be for the welfare of the pub
lie. the will of the legislature should pre-
vail over any mere doubt of the court.
(Board OF Directors against Collins. 46 Neb
All. followedD
l. The use of water for the purpose oil
the irrigation CT arid lands Is public use
within the import of the constitution. and
that this Is true, coupled with the further
facts that each person within the rang,
of the operation of an irrigation ditch OF
canal could by payment of the customary
rates command the services of the com.
pany owning the ditch and thereby obtain
the use Of water and that the nature OF
the business was such as to make II sub
ject to legislative control warranted tht
legislature In designating such bitches OF
canals works of, internal Improvement
). The taxation prescribed by statute ant
necessarily connected with the aid by poli.
ical subdivisions OF the state of a work o
tat Is NINf Hon