Omaha daily bee., 1902-06-25
SUPREME COURT SYLLABI.

SUPREME COURT SILLABI.
11T4 Rider against Lswritson. Error
from Red Willow. Affirmed. sedgw1ek y
!. When a writ Of error is taken from THE
q garnishee after Judgment TO pay money
into court, and the. district court reversed
answ SaoS 81 the s "a lhs a9 wouid G SSf sTpp SSs
the same. and thereupon enters Rp order
not be reversed upon petition In error in
this court on the ground that the district
court should have held the case for trial,
by the district court against the gafnishee.
and II II was error 10 enter such judgments
Was error Without iprs36dic Gown iH ol-i !"
E n7ss' tr sG5heTP5s; sr9. s ossIf IOlIidsZ.
J. When evidence tends TO show only a
Contract it Is error to instruct Jury thaS
finding may be against one or all
sI Z Ey1S 3 6Sa, Of a 5oint Liability 6n I win 51ot
8 An INSTRUCTION which ssumes TO ten
of the defendants will be bound by the
terms Of a lease is erroneous If 1t Ignores
ned 10 by both defendants.
1892 Barnard against Duncan. Error
ttTucti oahO'A1 16 SSTnSS &, Department seSfrns1 T M In
i When the Jurisdiction of the district
WHIT - lnNO4NtQg elIneI DIV an action At
decree cannot be successfully assailed for
an issue triable to a Jury was tried to
2 An order. vacating a decree. rendered
at a former term, on the ground that the
court had no jurisdiction ~ The subject
matter is a final order, within the meaning
OF section 6l OF the Code OF Civil Pro-
cedure.
8 In equitable actions the remedy by
appeal is not exclusive, but the hna1 orders
or decree rendered therein may pe re-
viewed on error.
4 Where the, correction Of the errors
complained OF involves the denomination
Of no issue Of fact. a motion for a new
trial is not a prerequisite 10 a review Of
court. =" '"s
nsS7. Leidigh against Pribble. Error
from Lancaster. Affirmed. Sullivan, c. =
J. An appeal undertaking gwen under
section 1901 OF the Code OF Civil Procedure
surety by whom II gas executed Is a mons
resident OF the county in which the action
2 A party who obtains a dismissal OF an
| appear on the ground that his adversary
halIee 70 comply with an order requiring
MN TO furnish a resident surety on an app
peal undertaking is not in an action upon
sSeh Undertaking. estopped from asserting
that the bond is valid ana binding upon
the nonresident surety by whom it was en-
3 The undertaking Of n surety upon an
appeal bond given under the statute reia-
i've 10 appeals from justices of the peace
rs, IN substance: that he will satisfy any.
result from a trial in the district court or
from a failure to effectively prosecute the
1lssa, Human against Austin Mfg. Co,
ErT0F from Lincoln. Reversed and re-
1 A principal viii not be permitted to
SSh ~ mat part Of a r~cTtract made by
repudiate that part which is burdensome-
2 An instruction which submits the con-
strncton Of a contract TO a jury is errone-
8 Where it appears from the natur. n,
a verdict that the jury must have found
In favor OF one party on a certain point.
ordinarily, an erroneous instruction AZ 70
such point is error without prejudice as
10 sue party but where the case is sub
ters are submitted TO the jury, which are
exclusively for the, court, and the verdict
such point for such party. an erroneo 1a
instruction thereon will be held 70 be-
lisSS. Farmers Mutual Insurance Co.
against Phoenix Insurance Co. Error from
Lancaster Affirmed. Hastings, C., DivI-
l. request for esnceraton of an in
m SIrance Poncy s and claim Of qnearned pre-
oeipt by the insurer. with tender Of the
2, When trial courts finding that new
insurance was taken out and was in erect
beIore presentation OF first evidence, and
i fms q, HtI1g n poney contained a clause avoid
ment OF the trial court against any recoy-
cry OF unearned premiums win be sus-
1881. Village of Plainview against Mem
delson, Error from Pierce. Affirmed. Old
nam, - DIVISION No, 2.
l. The duty devoiyinK on cities and VIII
ages to keep streets and sidewalks reason
soIy ssre ana ~ for travel applies TO de-
fects IN construction. as well as neglect
tends TO travel by night as Well as BY
q When a Sidewalk is built or suffered
70 remain on a part Of the street only
TO the natural level OF the street ss 10 q
permit pedestrians 10 safely pass from IL
Crawford g tNe SSlns ss to I'll Ponea against
q When facts relied upon 20 prove negII-
esnee are unasputed. but are Of such a
sonably draw different conclusions from
them, the question of negligence should DO
j q Unless the testimony fairly shows ths
damages awarded by a Jury 10 have been
the trial court on the amount Of damages
will not be disturbed by this court.
, iSisa55 nstT T6iie9 eH anime snd spPrOyed
against Forstedt. Error from Phelps. Az.
J. The rule is wen settled that a bsnk
or other corporation, being onoe charged
with notice of the character Of a trans
action, continues 10 be affected by such
notice whatever changes may occur IN ths
personnel OF Its working force.
Douglas. 0r jud hsnsRsl i Pound. 1dPPefp5i v fTG%
No. 2 UnrepOrted.
/ Whether the defendant in a suit TO
$500 49, AAAH
the point in any way In the trial court
should be heard TO complain on appeal that
the petition lacks the required 6verment
that no proceedings have been had al law
where the plaintiff was permitted 10 in
troduce evidence tending 70 show such fact
without objection, and the cause was tried
upon the theory that II was in issue.
quaere.
In such case the appellee will be per-
mitted 10 amend 10 conform 10 the proofs
after submission of the cause In this court
and upon amendment the decree will be at-
hrmHd.
3 A prima facis showing that no pro-
~ceedings have been had at Law Is sum-
cient 10 sustain a decree OF foreclosure In
the absence Of any evidence 30 the con-
trary.
1iTb0. Sharp against Call. Error from
Hamilton. Affirmed. Pound, c. Division
No. 2 Unreported.
nS62. Phoenix Mutual Life Insurance
Company against williams. Appeal from
/. NuckOils. Affirmed. Kirkpatrick, G. DiVi-
sion No. J. unreported-
!. Objections TO a confirmation Of sale on
the ground that the appraisal was too low
. and thai one OF the appraisers was not 4
: freebooter came too late TO be syailing Il
e made after sale iE had.
e 2 Ahdavits used IN the hearing of a