Omaha daily bee., 1902-12-15

appear that the remedy prayed for by the
81 that means only and as a last resort.
and that the relator has no adequate rem
edy In the due and ordinary course OF the
T. The writ will not ordinarily issue when
is effect would be to reverse or Vacate
iurisdtction to make the order. and es-
peCially when such order u one that may
be reviewed on error or by appeal.
The following opinions will not be OF
No. f1Sig' bowman against wright Error
from Douglas county Former Ju1gIheII
adhered TO. Barnes, c, division NO. q
i. Where a cause is tried to the court
without the Intervention of a jury the gem
erai rule is that error cannot be predicated
upon the rulings Of the court by which
testimony is received, because II Is pre-
sumed that the court considered only
proper evidence.
2. This rule always obtains where the
record contains competent evidence upon
every question necessary to sustain the
findings and judgment.
3. Record examined and held, that there
was no material variance between the
pleading and proof, and that the, evidence
was ST tticient to sustain the findings ana
judgment of the court
No. t1SS0. Beer against Dalton, Error
from Lincoln county. Affirmed. kirkpat-
rick, c., division No. 1. Unreported.
1. The possession Of land under an execu-
tory contract OF purchase is not adverse to
the vendor until the purchase price Is
paid or until the vendee is entitled TO, a
deed OF conveyance from MS NtluoI ullutI
the terms of the contract.
9 one who claims title to land by adj
verse possession must show that his occu-
pancy has for a period of ten years been
open, notorious, exclusive and adverse and
under claim and color of title as against
the true owner and the world.
3. Where the verdict returned is the only
one which under the pleadings and proof
could have been allowed to stand errors IN
the giving of instructions are without
"a Evidence examined and found to sus-
tain the finding and judgment OF the trial
No, 1896. City Of South Omaha against
Meyers. Error from Douglas county. Al
frmed. Kirkpatrick, c., division No. l.
j, 4 Judgment will not be reversed for
errors which could not possibly have
prejudiced the rights Of the party com
2. Certain testimony admitted over OBJ
~jections examined and held, not to have
%prejudiced the party complaining
8 Where the trial court undertakes to
instruct the Jury as to the issues involved
In a cause on trial before them he, should
state the issues fully, accurately and fairly,
but where such instruction is incomplete,
vague or uncertain, counsel should tender
an instruction free from the defect urged
and obtain a ruling thereon, In order 10 Jay
the basis for complaint upon review
otherwise the error. IL any, will he deemed
to have been waived.
strued together, and IL, upon the whole,
they fairly and correctly state the law, APP
plicahle to the issues Joined, they Will be
s. The verdict Of a jury is uniformly held
conclu sive upon a disputed question OF TACT
properly submitted, II 1t Is sustained by
sufficient competent testimony.
g. Plaintiff, while attempting to go from,
the paved portion of the street to the side
walk was injured by reason OF the de
fective condition of an Intervening meter
box. The place of the injury was IN 'front.'
Of a hotel in a much trayeled portion SesS ot tne
by reason of which travel had been de-
nected, causing pedestrians, to walk near
the meter box. Held, that the trial courts
refusal to instruct the jury that plaintiff
was required to exercise a higher degree or
care in passing from the. paved street 10
the sidewalk than would be required upon
either the street or sidewalk was not error.
l21SS. Estate of Anna Waters against
Bagley. Error from Knox county Re
versed Inst. Dufie, c., division No. 3. I'm
< covenant in a deed of conveyance that
they are free from all circumstances does
remot grantee thereof with a right of action
against the covenantor.
Appeal from Douglas county. Athrmed.
Kirkpatrick, c., division No. l. Unre-
/. Pleadings examined and held that
the burden OF proof was on defendants,
2 Evidence examined and held TO sustain
the findings and judgment OF the trlal
iS2li. Malone against Carver. Error from
Madison county; Afhrmed' Barnes -
l. Where ali of the evidence offered by
both parties on the trial Of an issue OF
lection, and such evidence is conflicting
the finding Of the court based thereon, I'M
less clearly, wrong, will be SusIsineG, am
2. In such a case no legal question can
arise on the admissibility OF evidence,
8. A Judgment in a former suit Will not
be a bar to the prosecution, of an acton
unless the questions involved were within
the issues ltigated in such former SUIT
Battle Creek Valley Bank against Collins
~ Record Examined and found that the
court excluded from it's judgment a note
claimed to have been been barred tEaf P Pga tnf ndseSam5eenSft
was for too large an amount.
l2212. National Exchange Bank against
WILEY. Error from Douglas county,. Al
armed. Albert, c.. division No. 3. Unre-
y Evidence examined and held sufficient
70 In an action on a foreign Judgment,
rendered I'm proceedings in which there
ant and no waiver of such service, the
defendant may show, as a comlplete unGn,
Tense, that the attorney who enteTed an
had no authority to do sS.
q In an action or a foreign Judgment
taken under a warrant Of attorney aGthGr,
court OF record and confess 1uugmeht
against the makers Of a SertSa aId n no tfba ~
such warrant was not a general authority
10 appear and confess judgment IN any
action Instituted on tne note buL a mn
tied TO the confession of a Judgment IN
favor of the holder; % that the detendant
was not estopped by the Judgment 10 deny
that the plaintiff was the holder OF The
note when such judgment was coniesseo;
() that a judgment. confessed IN IaEoI OF
one who at the time was not the holder
of the note, was void for want or Jurlsdlc-
i2216. Reict against Zoller. Appeal from
Douglas. OTdham, C., division No. 2 IN
reported. oio u -,
foreclosure proceedings examined and held
frivolous and without merit.
60 ToufS Grain and Provisions.