Omaha daily bee., 1902-11-10
SUPREME COURT SYLLABI.

1906. Elder against Weber. Error from
Clay. Reversed. Day, C.. division No. l.
1. Where a petition alleges facts showing
that the legal title to the premises is in
plaintiff, and that defendant is asserting
under 20 a deed from a stranger. q q reply
which alleges that plaintiff Joined in a
deed from defendants grantor, but by ex-
press agreement the premises were to be
held In trust for plaintif, introduces a new
cause of action.
to Introduce a new cause Of action, yet II
all parties and the trial court treat the
issue presented by the reply as If it were
regularly and formally Joined, the case
will be so considered In the appellate court.
8. Evidence examined and held not to
tSep land was held by defendant under an
T. Under the provisions of section 3. chap
ter XXxii, an express trust in real estate
is unenforcible unless reduced to writing.
g.. Evidence examined and held insufH-
i2io8' Red Cloud against F, and NJ. Bank
ing Company. Appeal from Webster. Re-
versed. Albert, c., Department No. 8. I'm
/. When the existence of a judgment of
the district court Is a material issue in a
established by the memoranda thereof con-
tanned in the Judgment docket.
1920. Chamberlain Banking House against
Kemper, Hundley & Mcdonald Dry Goods
Company. Error from johnson county. At
trmed. Day, c., Department No l. I'm
reported.
the corporate character of the plaintiffs
or its capacity to sue.
1921. Chamberlain Banking House against
Noyes. Norman & Co. Error from john
son county. Affirmed. Day, C., Department
No. /. Unreported.
as plaintiff consists Of certain named par
ties who are pleading shows an action car
ried on by the partners, and it is not nee
that a partnership is a Nebraska one.
2. Allegations that a certain named firm is
a partnership organized and doing business
in the state of Nebraska is sufficient to
authorize the carrying on of the action un-
der the firm name under section "a of the
code.
8. A mere denial that plaintiffs or either
Of them are competent to sue raises no
i2i2s. Jones against South Omaha. Ap-
peal from Douglas county. Affirmed. AL
bert. c., Department No. 8. Unreported.
Of I. a The 6%stT RIssep afS6sS s sS the the G 4sSu sgtsO 5s@.
Der of owners of property is essential to
confer jurisdiction on such authorities to
to the AUDITING properly. Following Hen
derson against South Omaha. so Neb., les.
2. The presentation to the city authorities
of a petition signed by the requisite number
of such owners Is essential to confer juris-
diction on such authorities to order the
curbing of a street not ordered to be paved.
from Saunders county. Order district court
reversed. Dufhe, G., Department No. 8, I'm
/. A receiver will not under ordinary cir
cumstances appointed to take possession Of
mortgaged premises pending action to fore
close the mortgage when the mortgaged
property is the homestead of the mortgagor.
2. s.. foreclosed his mortgage on 100 acres
Of land occupied by the mortgagor as his
piled to the court for a receiver pending an
appeal 10 this court taken by the mort
At the hearing 1t was shown that the value
of the whole tract did not exceed 1900
above the incumbrance thereon; II was fur
Their shown, ana the court found, that
either Of the four forty-acre tracts of which
the farm consisted exceeded in value the
ceiver for ali but foTty-hve acres Of the
tract upon which the orchard, dwelling
house and other improvements were To-
Gated. Held, that the mortgagors interest
in the whole tract being less than 5000 he
was entitled to hold the same as a home
stead and that the court erred in appoint
ing a receiver for any part OF the tract.
1918. Baldwin against Burt. Appeal from
Douglas county. Former opinion adhered
TO. Oldham, c., Department No. 3.
i. The provisions of section 6O2, Code OF
Civil Procedure, apply TO Voidable and not
to void judgments.
peach the validity OF a Judgment is pre-.
scented 20 the trial court by athdaVits and
no objection Is made IA the court below to
the judgment creditor has not had an OPP
%portunity 10 cross-examine the witnesses
after the case has been removed TO the
court upon appeal.
The following opinion will be officially re-
ported:
1851. weigrefe against State. Error from
Rock county. Afirmance. Holcomb, j.
/. Evidence examined and held sufficient
TO support a verdict OF guilty OF larceny as
found and returned by the jury.
!. In the trial OF an accused charged with
the larceny OF property from two joint
owners, where one acquainted with ths
facts and circumstances surrounding tbs
taking t~estiies thereto, and that the taking
was without the knowledge and consent Of
the owners. and the defendant testifying n
his own behalf denies any knowledge of OF
participation IN tho alleged larceny, Il car
not be said the evidence Is insufficient q
support a verdict vi guilty on the grounC
that ~non-eonsent y not sufficiently estab
! lished.