Omaha daily bee., 1902-06-30
SUPREME COURT SYLLABI.

The Following opinions will nos be cfi-
1O757. Hoffman against American Elk.
National bank. Error from Lancaster.
6oTmer Judgment adhered to. Judgement
sion No. 3.
|. Where an imposter ssumes the name
Of another person and thereby induces a
third person to believe he is tho person
whose name he has assumed; and, acting
a draft, designating the payee by the name
assumed by the imposter, and delivers II
to such imposter in the belief that he is
dealing with the person whose name has
been assumed. and the !mposter endorses
the draft, using such assumed name. and
transfers it to an innocent purchaser. the
purchaser takes title by such endorsement.
1856. Allen against Plasmyere. Appeal
from Red Willow. Affirmed. kirkpatrick,
.c ! Neither Then the he promise ,oS to do do n nor the
do is a sufficient consideration TO support
a promise In his favor. Esterly II. M. Co.
against gains Prtnsle, Al NeP; 265i .sor r-,.0r
from Dodge: Affirmed. kirkpatrick, c.,
division No. /.
l. Mere Irregularities in a judgment or
order, which are not jurisdictional, do not
render IT subject to collateral attack;
fr lSSt7i bo. J : 9gddin rs W LaHsTssd a A9gp sSl
piication for receiver dismissed. Pound, c.
First National bank of Greenwood against
Reece, Neb. IS, N. w. Rep, SO4, followed.
1882. Harris against Nye 81 Schneider
eoGid@RR am, C.. E diTlsloh nr? No. I Rod GESrep 4FtFn'd'
l. Where a demurrer Is sustained to de-
PENDANTS answer and he refuses to. plead
tanning such demurrer will not be reviewed
here unless such action Is. specifically al
legged against in the petition IN error.
2. Where an action in foreclosure was
instituted before the repeal of section SI
of the Code OF Civil Procedure the court
is authorized TO enter a deficiency Judgment
against those personally liable on the debt,
when a deficiency exists. Notwithstanding
against National Bank OF Commerce. SO
n. w. Rep, lS3, followed.
3. The institution of a suit Of foreclosure
on q mortgage before the note evidencing
the Indebtedness Is barred by the statute
tolls the statute on the note from the time
of the commencement Of the foreclosure
1864. skow against Lock. Error from
Gage. Reversed. Hastings c. Division
/. A replevin Judgment that said de-
PENDANT have and recover of and from the
or the sum Of s7si and the further sum OF
$3.50 as damages. together with costs" is
not open to objections as not being In the
2. An instruction 1.-THE Jury are instructed
that where, the testimony OF witnesses Is
irreconcilably conflicting, they should give
great weight TO the surrounding. circum-
stances in determining. which witness is
ttRf'' Vital 70 elements Of the case are affirmed
by one party and denied by the other in
8. Where the record merely shows a date
of filing an instruction that II was given
and was excepted to. the givinng and exeep-
I. The giving of correct instructions will
not cure the error OF one which invades the
province OF the jury as to determining the
weight OF evidence.
rect instruction which has no direct appli-
cation TO the evidence I'm the case.
,s !: the statute a : OF frauds ramr f eta I mes no OBJ o.
an interest In land, where the only ques-
ton is the recovery OF its eonsideration;
T. An objection to an exhibit as a whole
is properly over-ruled where a part Of II is
admissible.
s. Where there is evidence tending 10
show the authenticity of a document sum
cient, If believed to establish II, the Jury
should pass upon It, and its admission is
s. Defects in a repleyin AFFIDAVIT not
brought to this court with the record will
1889. Cedar county against Goetz. Error
from Cedar. Affirmed. Day. c., division
i. An oral motion for a new trial Is not
recognized in the practice OF this state.
Such a motion will not Justify the srapt-
ing OF a new trial, nor will the overruline
Of such a motion be SUFFICIENT TO present
errors Of law to either the trial or a review
ing court.
3 This court will not review alleged
errors occurring during the trial OF n cause
in the district court by petition in error
unless a motion for a new trial was mads
IN the trial court and a ruling obtained
thereon.
llSOE. MdTlll ukhluhl htIHnlls EsiFb
from Dixon. Reversed. Albert, c., division
No. 3. Unreported.
l. An order of a Justice Of the peace
ex parte hearing and before the return
day OF the summons Is void,
q Where the Jurisdiction OF the Justice OF
the peace appears on the face OF the recorc
error TO be available must appear afhrma'
lively.
1854 State ex rel Reiss against Holmes
Original mandamus. Writ denied. Pound
c. Division No. 2. Unreported.
l. Although delay In applying for a wnt
OF mandamus f. not an absolute bar, 4
may be sufficient ground in the discretion
OF the court for denying the writ
2 The relator in mandamus proceedings
10 compel settlement OF a bill Of exceptions
must show a clear right 70 have his pro
posed bill allowed. Hence, where the tria
Judge upon hearing evidence has founC
that delay in not presenting the bill In IN,
time hxed by law was due 10 laches anC
neglect Of Teiator. the latter will be held Il
very clear proof that such finding was er
roneous and that be Il entitled 20 have IN,
bill llowed Notwithstanding.