Omaha daily bee., 1902-05-31
SUPREME COURT SYLLABl

11419. Battle Creek Valley mi against
Ceilings. Appeal from Antelope county.
A T. Where H eviden,ce e. is Dconnietin mT the find
ing OF a fact based thereon by a court
Of equity will not be set aside unless
clearly wrong, Evidence examined and
held sufficient to sustain the finding Of fact
by the trial court.
2. A Judgment in a former suit will be
a bar in a second action between the same
parties and their privies involving the
same subject matters, as to everything
scope of the issues litigated in the former
action.
from Butler county. Reversed. Pound. c.,
/. a denial Of the very words of the allie
their substance and effect, tenders no Issue.
2. An answer denying that plaintiffs
testatrix, on a date named was the owner
SION Of the land In controversy, and deny
ing that she died "on or about" said date,
date and before she died, and also with
ownership before and at said date, subject
to a right Of possession In someone else,
does not put the plaintiff upon proof of
g. An instruction which states that II the
owner OF lands does not bring an action
against one who wronEfully withholds pos.
session within ten years after his cause OF
action ,accrues. he loses his right to bring
or maintain such action, without adding
that defendants possession must be con
%tinuous, open, notorious. exclusive and adj
verse DURING the Iull peTlou VI lcu years.
is misleading and erroneous.
4, The error in giving an incorrect or
misleading instruction Is not cured py CIV
correctly, where the several instructions
are inconsistent or conhIctlng, or where,
taken as a whole, they may convey an
K An occupant who claims by adverse
possession must show that ne occupied al
versely during the entre period OF ten
"a Where such occupant entered originally
| without color or title or claim of right
and the acts relied on to show entry and
| occupation were consistent with q mere
Intention to tresPass from time to time
| testimony that he intended to take posses
sion and hold and occupy as owner, un-
Sng sWcb Intention, is not sufhcient to re-
quire a finding in his favor
1171S, Topping against Jaenette' Appeal
" In order to Justify reformation of a
tic,Iar The evidence Of mistake must be
clear, convincing and satisfactory.
2. But 1t is not required Lhat mistake pc
where the extrinsic evidence is full, I'M
equiVocal and satisfactory, the terms OF the
instrument alone will not sunce 10 sustain
ii7ss. stanisics against McMurtry. Error
from LANCASTER; Ne HeVerseo ana renamed
In an action by a grantee Of a deed
against his grantor to recover for a breach
| OF CuNtHdHN dkdAiAoN f'
evidence is inadmissible to show that taxes
were by tontemporaneous oral agreement
excepted from the terms Of the dee er5or .,
United Workmen against Bartes. Error
rom Colfax. Reversed. with instructions
i fraternai Beneficiary association hav.
Ing a grand lodge and principal place o.
business in this state ana which Is dolnl
an Insurance business therein, Is a domes
tic corporation or association under thu
provisions of section OIL, chapter Kill OF tn
Compiled Statutes, ana services OF sum
the provisions OF chapter IL Of the cod
providing for service OF summons on cor
porations and insurance companies.
2. Where such association is not priv
legged from being sued In the county wher,
the action against Il is eommenced' and
which contains an objection to the juris
diction, and also a defense to the action
upon the merits thereof, such answer 10
; waiver OF the jurisdictional questions, an'
the case should be proceeded In and trie'
upon It's merits.
3 It is reversible error TO refuse to ALLOW
] a defendant to Introduce proof OF the fact
1 stated in its answer, as a defense. to tn
plaintiffs petition on the ground OF a de
set forth in said petition; where the cour
has previously overruled DEFENDANTS oh
%jections 70 Jurisdiction over it's person an
! nsi6. Care against Izer. Error from
Gage; Reversed. Ames, c, Division No. I
; of an action for conversion by reason o
the wrongful sale of a plainuns goods 4
) show that defendant exercised control owe
the property with knowledge OF the plain
tins rights, or that a demand was mad
for the goods while they were in defend
4 ants possession. Pesse Y, smith, 81 N. Y.
iisas- Gable against swobe. Appeal from
4 Douglas. Affirmed. Duffie. c. Division
. Where a trustee refuses to carry GU
, the terms OF a trust the party or partie