Omaha daily bee., 1902-03-24
SUPREME COURT SYI


u DlNlSlOl NJ. Gs OHltHpl GU
DUEL V. Potter, 81 Neb., PAL, followed in a
case of the same nature.
Lancaster. Affirmed. Ames, c. Division
/. In an action upon a replevin bond the
right of possession Of the goods taken and
the value of that possession will be treated
as matters conclusively determined by the
verdict and judgment in replevin;
2. In an action upon a replevin bond mat
tiers in excuse of a breach Of the CONDITION
Of the bond cannot be availed Of as a de-
1926. Chicago. Rock Island &, Pacific
Railroad Company against Hambel' ETE9r
sion No. l. Unreported..
l. BY section 3. article l. chapter Xxi,
Si9mPitte o Statn5es Tor a ali rif Injuries e. sGs9h u
while a passenger ola railroad company,
except where the injury is occasioned by
lation OF some express rule or regulation of
the carrier actually brought to his notice.
c., r. l. 81 p. r. Co. V. Zernecke, 50 Neb.,
2, Section 8. article 1. chapter Xxi, Com
piled Statutes, is not inimical to the four
teenth amendment to the constitution of
this state, as tending to deprive railroad
companies Of their property without due
22e rpGesS 81 50 i& Neb.. G $50. foiIowedi n 90 v
3. Section 3, article !, chapter lTXil' pre-
vents any limitation on the liability of a
railroad company for a passengers safety
unless within the exceptions provided in
the section, and section 8 of the same chap
railway company to limit its liability under
section 8 by stipulation.
4, A table showing. the expectancy of life
in healthy persons of different ages, printed
in a law book of general acceptance and
authority in courts of this state, as the
Carlisle table of expectancy, is admissible
in evidence in cases where such evidence Is
applicable. Sellars V. Foster, q Neb., 11S,
4. In an action to recover damages for
the death of a person IT Is incompetent for
the defendant to show what the value OF
the estate of the deceased was.
6. Evidence examined and held to support
1925. Rath against Rath. Error from
Fillmore. Affirmed. Barnes, c. Division
No. q. U%nreported.
/. Where there is some competent evil
constituting plaintiffs cause of action, and
the evidence on the whole case is conflict
| ing, the verdict of a jury based thereon
Will not be set aside on the ground that 1t
is not sustained by the evidence.
2 fb In an Set for a ~ a wafe the esa arpeetio nes
of her husband and causing him to aban-
don her, parental advice, honestly given
benefting the son, is a defense; but where
such advice is not pleaded or. proven at the
trial the court did not err in refusing to
3. 1t is a fundamental rule that the In
structions in a case must be given with
trial, and must be applicable to the issues
made by the pleadings.. Instructions asked
for not fairly within this rule should be re-
4. instruction examined and disapproved;
but IT appearing from the record that the
giving of the instruction in no manner az
fected the verdict of the jury. Held, error
without prejudice.
8. The court is not required to cover the
rule as to the measure of damages in any
one particular paragraph of Its i%nstruc-
lions. 1t will be sufheient II the instruc-
6. In an action by a wife against one for
alternating the affections of her husband
which informs the jury that If the con-
duct of the defendant was the controlling
her, and that without such conduct her
husband would not have abandoned her
then she would be entitled to reco cry, al
though there might have been other causes
contributing to the same result" is a fairly
correct statement Of the law. There was
no error in giving such an instruction.
ure of the court to give Instructions asked
for at the trial where the court in its owr
instructions has amply covered the grounds
contained in the requests.
1929. city of Lincoln against sager
E crrfp5i DIVISION No, e Unreported
!. c., r. /. & P. r. Co. V. Farwell, 60 Neb
e. Where exceptions to instructions appear
in the transcript Immediately after tbs
charge and before the record of submis'
an entry showing them to have been filed
at the same time with the instructions, anc
are certified to by the clerk as part of the
sumption arises as in case of notation by
counsel upon the instructions themselves; -,
3. In case exceptions are so filed which
were not properly taken at the time the in
structions were given, they have no place
in the record and the remedy is to correct
the record in the district court by striking
them therefrom, the same as where eXcep'
tions not seasona6IX taken are noted by
Fillmore. Affirmed. Barnes, C. Division
/. The repeal of section SAT and a portion
of SS and of $40 of the Code of Civil Pro
cedure, commonly known as the deficiency
| 1ndRmanf Lar in no manner AnRGtAd fh(
rights or remedies existing in an action
which had been commenced, or which wer'
Incident to a cause of action which had &C
crued and was existing at the time of th'
taking effect of such repeal.
2. An action at law cannot be maintained
to recover a judgment for any portion o
the mortgage debt after a decree of fore
closure where, the action to foreclose tn
mortgage had been commenced, or tn
cause of action therefor had accrued anC
was. existing at the time of the repeal o
the law commonly. known as the defcienc!
judgment law, without an order of tn,
court authorizing the prosecution thereof
Butler. Afhrmed. Day, c. Kirkpatrick
G., not sitting. Sedgwtck, j. not sitting
An error not going to the Jurisdiction o
the trial court and not called to its atten
ton in any way by motion for new tria
or otherwise will not be regarded In thi
TiGs. Baxter against sehmidtz. Apgea
from Custer. Affirmed. Duftie, c.. Divi
ii6OS' Northwestern College against Jess,
shrecke. Appeal. from Phelps, Affirmed
Hastings, G. Division No. I. Unreported.
/. The fling with the clerk of the cour
of a substantially correct copy of ap
praisement OF real estate for a judicia
sale is sufficient.
= 2. The fact that a copy OF appraisemen
/ was not filed until the day following tn
one On which IL was made does not Of itsel
l show that the sherin's return that he fle
! IL forthwith is incorrect.
3. Where the sherif's return OF a sal
shows a sufficient notice and is not deniet
the fact that the printers AFFIDAVIT wa
made before notice was complete and fail
to state fully the facts as TO a legal publ
cation Is not material.
1O0S0. University of Michigan agains
McGuckin. Appeal from Douglas, Forme
l judgment adhered to. Ames, c., division
l. The marriage relation is in only
! limited qualified sense contractual. IT 1
: a social status for the assumption OF whicl
by persons OF the requisite legal capacit,
all that IS essential is their free consent.
2. The consent requisite to the creation
OF the marriage relation need not be ex
- pressed In any especial manner or by an!
prescribed form of words, but may be sum
ciently evidenced by any clear and imam
biguous language or conduct.
1Oil9. Merchants National bank o
Omaha against Mcdonald. Appeal iron
Douglas. Rehearing denied. Ames. c,
division No. 3
l. When goods are ~wrongfuIIy taken q
= replevin from a sheTin who holds then
, under levies for the satisfaction Of attach
ments in his hands the measure OF damage
Is the loss accruing to the attachmen
plaintiffs, because OF being deprived of tn
+, right TO have their writ executed. and 4
= was the value Of the goods in the onl
. | market and manner IN which the gheTfl