Omaha daily bee., 1902-03-29
SUPREME COURT SYLLABI.

SuFhEME CUUhl SILLAbl.
against Holcomb Bros. Appeal from Daw-
son. Affirmed. Day, c. Division No. l.
l. Where the parties to an action enter
upon a trial and treat the allegations of
new matter alleged in the answer as denied
this court will also treat it so, notwith-
standing no reply appears in the record.
z. Evidence examined and held to sustain
a eonsideration for the notes and mortgage
chaser for value before maturity.
g. At common law a corporation may sue
ana De sued in It's corporate name without
an averment Of its corporate capacity and
the provisions of our code have not changed
the Y1of S9mmS sac Law rule in that regard;
against Lottridge. Appeal from Lancaster.
Affirmed. Hastings, c. Division No. l. I'm
l. Real estate other than the homestead
or an intestate decedent descends to his
them, subject to the administrators right
of possession and to its application in pay
ment of decedent's debts.
= Where pending the settlement of a de-
c%edent's estate advancements have been
made in good faith to an heir by the ad-
heirs, which were accepted by the recipient
as In full of his share and as emitting the
other heirs to his portion of the remaining
estate, the heir who has under such ar
rangement received his full share of the
estate has not thereafter an attachable in
11O22. Lombard against Pasusta. Appeal
from Buffalo. Affirmed. Barnes, c.. Diyi-
sion No. 2. Unreported.
l. An officer is required to make but one
appraisement of real estate until it has
been twice advertised and twice offered for
sale, whether sold under the original or an
alias writ. Burket v. Clark, 46 Neb., 1866.
2. one who attacks the appraisal of real
estate because 1t Is claimed that one of the
tablish such fact by a preponderance of
the evidence in order. to, overcome the GER
ttfcate of the sheriff that the appraisers
were both freeholders.
1lO7. Livingston against Moore. Error
from Clay. Affirmed. Pound, c. Division
l. Instructions will not he reviewed unless
excepted TO In the trial court.
2. The submission of special findings to
the jury upon matters claimed to be l-
relevent and immaterial will not be re-
viewed unless excepted to at the time and
trial.
8 4 plaintiff in replevin on appeal from
justice court to the district court added an
allegation of conversion of the property
In connection with a claim for value of It's
not necessarily an attempt to sta,e a diff
ferent cause of action and was not open
to a motion to strike out on that ground,
4. Where a defendant in replevin sets up
a number of affirmative defenses in his
answer, in addition to a general denial, 1t
Is not error to strike them out on motion.
since anything making against the plain
tins cause of action may be shown under
8. This court is not bound to examine
questions not so raised in the briefs as to
state fairly what Is complained of, the
reason and basis of the complaint and the
exact portions of the record material
thereto.
12S47. Mockett against Boston Improve
ment Company. Error from Lancaster.
Affirmed. Day, C. Division No. /. Unre-
Certain written agreement examined and
construed to mean that when ]. II. NJ, ir.,
and F. +. NJ. made certain payments upon
q note of 1888. 40 and reduced II to 81, 05O
they should be released from further
liability upon the note.
phone Company against Fawcett. Original.
Writ denied. Albert, C. Division No. /.
Unreported.
A subsequent order. which in no degree
releases the restraint imposed by a tenn
porary injunction, is not a dissolution or
section SO of the Code of Civil Procedure.
lC9l5. FoxwoFthy against Colby. Error
from Lancaster. Reversed and remanded.
/. The unauthorized Insertion of the word
gold" before the word dollars in an
livery. is a material alteration.
1917. Wirth against Calhoun. Error from
Douglas. Affirmed. Albert, c., division
/. In an action by an employee against his
employer for damages for breach of con-
of the former, that the plaintiff obtained.
or by the exercise of due diligence, might
have obtained other employment, is a mat
ter of defense which the plaintiff is not
required to anticipate in. his petition.
2, The burden Of proof is on the defendant
- AN' 'AAN ia hAAhi
thereof or of showing other facts in miti-
cation of damages the measure of damages
8, A contract whereby a party is required
TO furnish one performance, consisting of
each day ~ of the week Sng mes inc,,of IN S snndsv, Is
not invalid as in c"ontravention of section
24l OF the Criminal Code, such performances
not falling within the prohibition of said
section.
4 The legislature having expressed the
policy of the state in regard to the OBJ
servance of Sunday by said section, the
court will not add to the restrictions thus
imposed by declaring such contract con-
1929. Chicago Lumber company against
Bancroft. Appeal from Dawson. Affirmed.
1. The unchallenged findings of fact by
a referee when confirmed by the court are
operate and from the legal consequences
flowing therefrom he can not escape.
2. Where a debtor executes a note and
mortgage for a loan, of money at a lawful
rate of interest, and, at its maturity, en-
ters into a new contract. with the lender
is tainted with the vice of usury, and the
lender by agreement retains the note and
mortgage as collateral security TO the
usurious contract, in a suit to enforce the
mortgage security the lender is restricted
in his recovery to the amount due on the
usurious contract. after which all interest
Is, by force of the statute. forfeited
from Burt, Afhrmed. Pound. &. division
]. TIL decree OF a county court, after
examination of the final report and ac-
counts of an executor. finding that he has
assets in his hands and ordering them dis
creates a personal liability in the executor
and has the same force as any other judg-
ment.
2. Such liability may be enforced either
directly against the executor or by suit
upon his bond. as circumstances may re-
quire.
8. Executions may issue to enforce such
a decree, and where IL is rendered In the
district court on appeal from a similar
transcript has been duly filed in the dis
trict court. such execution may be levied
upon the lands of the executor.
llt76. Stewart against Doering. Error
from Saline. Affirmed. Duffie. G.. division
No. S.
l. The continuance of a cause by a ius-
tice OF the peace is no part of the trial OF
the cause within the meaning Of section
3O99. Compiled Statutes.
1920. Chicago, Burlington & Quincy Rail-
road company against Featherly. Error
from Saline. Reversed and remanded. Al
bert. C., division No. 3.
]. In an action for damages. resulting
from the alleged negligence OF the defend
ant. when the evidence on the part of the
plaintiff is such as to Justify a finding that
his own negligence contributed TO the in
Is on the plaintiff to show the absence OF
such negligence.
2. on the facts stated. held, that the
court erred In charging the Jury that the
burden was on the defendant TO show con-
tributory negligence.
1928. Aldrich against Rank Of Ohiowa.
Error from Fillmore. Affirmed. Oldham.
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