Omaha daily bee., 1902-12-27
ish the date on which the claim was in fact

filed.
4 Evidence and held that the
verdict was not excessive and was sus-
tanned by the evidence.
No. 1915. Kinney against B%ittinger. APP
peal from kimball county. Affirmed. Has
tings, c., division No. 1. Unreported.
l. Affidavits for continu ance must be en-
bodied In the bill of exceptions If the right
to a continuance is to be on its
2 An appeal in equity is not a proceeding
to correct errors In the exclusion of evi-
dence.
The following opinions will not be off,
cially reported:
1909. Reiss against Argubright. Error
from Lancaster. Affirmed. Pound, c., divl-
sion No. 2. Unreported.
l. An answer that the defendant Estates
and alleges that he denies each and every
allegation" of the petition is a sufficient
general denial, though not in c~ommendable
form.
3. An oral chattel mortgage is good as be-
tween the parties thereto, II is invalid only
as to creditors and subsequent purchasers
in good faith
8. Creditor in this connection means judy
ment, execution or attachment creditor; a
subsequent MORTGAGE with notice is not so
regarded.
i'm. Bankers Building and Loan associ-
alton against Thomas. Appeal from Doug
las. Affirmed. Hastings, C., division No. l.
/. A disclaimer of all interest in mort
kdBtu BAOBtAAg BAGNtAAb all LlbuL u ODJGGI
to a foreclosure decree, which establishes
no personal liability against the answering
1850. Bourke against sommers. Appeal
from Buffalo. Affirmed. Day, c.. division
Nc. /. Unreported.
l. All objections to the appraisement Of
property to be available must be made
before the sale.
2. In a notice of sale Of real estate under
to state the amount of the decree, such
statement Is not essential to the validity OF
the notice. Stratton against Reisdorph, IS
Neb., 314, followed.
3. In the absence of a showing to the
contrary, the affidavit OF the publisher, hat
the newspaper was one Of general circula-
the fact that the newspaper was a legal
i2l7$. Todd against city Of York, Appeal
division No. l. Unreported.
l. Where one discharges refuse or lever
age into a running stream, in such quanti-
ties and In such a manner that the waters
therein become foul, polluted and contamin-
ated, emitting nOxious gases and odors, and
thereby ~endangering the health and en-
joyment of those living along the bank OF
such stream, interfering with the proper
and customary use of their property, equity
has, power to restrain the acts from which
such consequences flow.
2. Where the evidence Is conflicting and
there is sufficient to support the finding of
the trial court the judgment will be af-
122OI. state ex rel Johnson against Holm.
Error from Antelope. Reversed with in
structions. Albert, c., division No. 3. I'm
The discretion conferred on the courts by
section 623 of the Code is not an arbitrary,
but a legal one, to be exercised within the
limits of legal and equitable principles.
Following Wallace against Sheldon, Sc Neb.,
IS.
i2243. Martens against Pittock. Error
from Stanton. Affirmed. Barnes, c., divi-
sion No. 2. Unreported.
l. A motion to strike out a matter of
defense, contained in an answer filed in
the district court, for the alleged reason
that it was not in issue in the. county
court where the case was first tried should
be overruled where It appears that such
matter was pleaded in the lower court and
is only set out more fully and in detail in
the pleading to which the motion is d.
rected. .
2. Where parties have had verbal negotia-
lions which have afterwards been reduced
to writing the written agreement will be
taken to control as their final determination
and the parties will be bound thereby in
the absence of fraud or mistake. But where
such written agreement is pleaded in a
reply as a matter of defense to the allega-
lions contained in an answer evidence Of
fraud or mistake in. procuring such agree
ing.
and held that 1t was properly given.
A. An Instruction which contains a correct
proposition OF law, but In which a par
ticular portion of the evidence is pointed
to it, and its effect is unduly emphasized,
should not be given.
1920. Western Land company against
Buckley. Appeal from Adams. Affirmed.
Kirkpatrick, c., division No. !. Unreported.
l. The holder of a tax lien is not a neoes-
sary party to the foreclosure of a mortgage
subsequent in point of time to the tax lien,
where the right to forecloBe the tax lien
has not yet accrued.
2. A party will not be barred of his rights
by the decree In an action to which he
was neither a necessary nor a proper party
defendant, and whose rights in such action
were not itigated or in fact determined.
3. Under the repeated decisions of this
court a party may bring his action to fore
close a tax lien upon property at any time
years within which the owner Of the prop
erty has a right to redeem from the tax
1921. Curran against Hageman. Error
from Greeley. Affirmed. Hastings, C., diyi-
zion No. 1. Unreported.
/. Where a motion has been sustained in
part and overruled in part the maker of IT,
who has taken nc exceptions, cannot COM
plain Of error in its overruling.
2. An objection of misjoinder OF causes OF
action and OF parties defendant must be
taken before going TO trial or the objection
will be deemed waived.
3 To authorize a review OF errors occur
ing at a trial a motion for new trial is as
essential in an equity as II is in a law case.
A. Petition examined and held TO set forth
suf1cient facts TO show a cause OF action in
favor OF plaintiffs and against defendant.
l2212. Michigan Trust Company against
City Of Red Cloud: Appeal from Webster.
Affirmed. Dutie. c.. Division No. 3. Unre-
ported.
!. Laches cannot usually be charged
against a party for falling TO bring an ac-
tion to enforce an equitable claim II he
acts within the time allowed by the statute
OF limitations for commencing a CORE
spending action at law.
2. one of several parties whose debt IA Sc
cured by a trust deed may maintain an
action to foreclose the same on behalf OF
himself and the other parties interested IN
the security, and the court will distribute
the fund arising from a sale OF the prop
erty among those entitled thereto.
D. Where a mortgage Is made to secure
the debt OF a third party II is a suficient
compliance with sections $50 and s5i OF the
Code OF Civil Procedure to alege and show