Omaha daily bee., 1902-12-27

plaintiff as correct, and the action pro-
ceeds to trial and judgment in all respects
as an action upon the contract set out In
the answer, so that IL Is apparent that the
defendant has not been misled, the variance
between the petition and the proof should.
immaterial.
last foregoing paragraph, IL the court has
given to the jury the correct rule of dam
ages for the alleged breach Of the contract
set forth In the answer II is not error pre-
judicial to the defendant. IL he afterward
tnstructs them what is the measure Of
damages for 2 breach of a contract sub
stantially such as is set out in the petition.
II the measure so given Is also equally APP
plicabie to the like breach of the contract
as recited I'm the answer.
1874. Brooks against Stanley. Error from
Dawson. Reversed. Dufie. c., division
Where, on a line Of the same survey and
between, remote corners, the whole length of
length called for, fl Is not to be pre-
sumed that The variance was caused from
a defective survey OF any part, but IT must
be presumed, in the absence of circum-
stances showing the contrary, that II arose
from imperfect measurement OF the whole
line, and such variance must be distributed
between the several subdivisions of the
line In proportion to their respective
124O5. Crum against Johnson. Error from
Douglas county. Affirmed. Lobingier, c.,
division No. ]. Unreported.
!, An action on an appeal bond is gov
erned exclusively by section Il of the code
and not barred until after ten years.
2 Where different sections Of the statute
of limitations are equally applica BILE, the
one allowing the longer period governs.
l24l5. Elliott against Elliott. Error from
Burt county Affirmed, Hastings, c., divi-
/. Section SS3 Of the Code prevents the
giying IN evidence by q lawyer, only OF
trusted to him in his confidential capacity.
3, Communications not confidential in
sary to effectuate the Instrument, in pre-
pairing which the attorney was engaged,
are not Objectionable on this ground.
3, Evidence in this case examined and
held to sufficiently show that the will in
question was signed by the craftsman. in
the testator,s presence. at his previously
4 Evidence examined and held to warrant
the instruction given by the trial court that
there was no evidence of mental inca
pacity on the part of the ~testator or of
undue influence on that Of the benefciaries
1882. Commercial State Bank, Crawford,
against -ketchum. Appeal from Dawes
county. Judgment. Albert, c., division No.
l. Where the defendants appeal from
q decree, in favor of the plaintiffs allow
Ing an, injunction, which is contingent on
the doing Of certain acts by the plaintiff,
and the decree Is affirmed in this court,
such decree is conclusive on the parties as
10 all matters thereby adjudicated on an
appeal from a subsequent order in the
Judge and OF the judges Of the supreme
court, a petition for an injunction is pre-
SSnleu TO the county Judge, and a temDO-
rary injunction allowed by him, and the
petition and order of the county judge
forthwith filed In the district court, the In
junction Is not void on the ground that the
order therefor was made before the action
was commenced.
8. Where, on a motion to make a decree
absolute which was contingent on the pay
ment, by the plaintiff, of a certain sum and
the costs in a certain action. It appeared
decree on his part, save that. through over
sight. he had omitted to pay a small item of
tender should have been accepted, and the
A. Evidence examined and held not to
sustain the finding that the defendants
were unable to comply with the terms of
No. 1885. Green against Diezel. Error
from Douglas. Affirmed. Oldham, c., d.
A rule Of the district court requiring pur-
deposit $50 with the sheriff or master as a
guarantee OF. good faith in their purchase,
examined and held reasonable.
No. 1884. Harte against Reichenburg.
Error from Douglas county. Affirmed.
Hastings, c., division No. !. UnrePorted,
ton S2s Of the Code OF Civil Procedure, en-
braces every variety. of AFFAIRS the subject
Of negotiations, actions or contracts be.
N.6., 7s parties Smith against Perry 81
2. The contents of letters and kilograms
which pass between parties in the course
of a business transaction, not otherwise
identified than by a witness, who has a d.
rect legal lnlcTeSl. III lne result OF the suit, 7
are not competent evidence as against the
personal representative of a deceased per-
son.
No. 124Ol. First National Bank, Chadron, ]
against Hughes. Error from Dawes county. |
Affirmed. Ames, c., division No. 8. Unre-
ported.
l. A man owning a herd Of 200 COWS and
13 calves, executed a mortgage containing
the following descriptions: Two hundred
600 head of native cows, in ages from 3 to
Z years, some branded L and others SH:
also with 100 head of above mortgaged cows
are included In this mortgage 100 head of
their calves, which are to be branded SH. /
The above described chattels are now in
my, possession on" etc: Held that this de-
against subsequent purchasers OF a part OF
the herd of calves, without actual notice
2. When chattels are taken under a writ
OF replevin from the possession OF a person
not a party defendant to the action he is
entitled, on motion, to be admitted to de-
fend his possession without reference to the
statute on the subject Of Intervention.
IL at all. upon the strength OF his own title 4
and not because of the weakness of that
1239S. South Omaha against Hager. Error
from Douglas, Reversed. oldham, c., divi-
sion No. 2.
Where an instruction assumes to define
the whole law OF the case and omits a ma
terial element from the definition given, II
is reversible error which may be relied
been requested by the party seeking to
take advantage Of the defect.
l-otos oaShN dbdlh5N IlyicE. appeal from !
Phelps. Affirmed. Barnes, c., division
/. In order to maintain a creditors suit
against a wife to set aside a conveyance of |
real property made to her by a third per-
son, plaintiff must allege and prove that 1
the relation of creditor and debtor existed
between himself and the husband at the
time such conveyance was executed, or that
II was executed fraudulently with the eN-
pectation on the part OF the husband that
he would become indebted to the plaintiff, |
and to prevent, hinder and delay MIN IN
the collection of such debt when con-
tfacted
2. Held, that the finding that the wife was
the bona fdG owner of the property I'm /
question, that IL was conveyed to her In
payment for money advanced by her to
her husband, the proceeds OF which had
been used In the purchase of the property
which was. the consideration for .he con-
veyance, was sustained by the evidence.
I. An action In the nature of a creditors
bill cannot be maintained 10 set aside the
conveyance Of property which is exempt to
the defendant as a homestead.
1888. South Omaha against WrzesinskL. !
Error from Douglas. Affirmed. Barnes, C., |
division No. 2. Pound. c., concurrlng.
1. An instruction which I'm addition IN a
correct statement OF the law contains an
sumption OF the existence of a material
fact upon which there was no evidence
offered or received aud directs the attention
OF the jury to and unduly emphasizes a
part OF the evidence should be refused.
2. An instruction which submits an issue
to the jury not raised by the pleadings or
supported by the evidence Is erroneous and
was properly refused.