Omaha daily bee., 1902-03-03
SUPREME COURT sYLLABI

OUT nGWG OUUnl SILEAbI
The following opinions viii not be on
s47i. iowa Savings Bank against Frink
E aIIo from Thurston Rshearing. Az
l. Where a, question is submitted to the
jury after the request OF a party for its
s saT tbst = s snSh party will not be heard to
is not sustained by SUFFICIENT evidence.
z In an action of replevln. where plain
dence that such mortgage was obtained by
duress is admissible under a general denial.
fo 3 : An nj. inS,rinGtion: not assailsd by motion
stands as the law Of the case.
1865. Pratt against Galloway. Appeal
ment adhered to. Oldham. c. Division
The rule that when the allegation in a
mortgage, that no proceedings at law had
been had FOR the recovery Of the debt, or
there can be no recovery in the absence sof
proof sustaining this allegation, applies
when this allegation is contained In a
a second mortgage and is denied by the
owners OF the equity OF. redemption, al
demption are not original defendants in ne
suit and have been permitted to plead Under
the style of intervening defendants.
SoS Mdgruder against Kittle. Appeal
from Dodge. Affirmed. Dufhe. c. Division
- supersedeas bono given by the de-
PENDANT In a foreclosure proceeding will not
operate to stay a sale under the decree
unless the defendant has perfected his ap-
peal within the time required by statute,
2. A court making a sale under a decree
Of foreclosure may, when necessary, issue
a writ OF assistance to put the purchaser In
s952. Stull against stull. Error from
Nemsha. Rehearlng; Former Judgment ad-
1. Where an Instruction contains nothInr
preJudicial In its charge II will not be con
demned. because II Is not couched I'm the
nesI selected words to accurately express
q Influence to vitiate a will must be such
as to amount to force and coercion. de-
and there must be proof that the will was
obtained by this coercion; and It must be
ecution are inconsistent with any hypothe.
sis, but undue influence, which cannot be-
presumed. but must be proved. and in con
things, Latham v. schaal, rs Neb., 5SS, fol
8. Where an entire deposition is not asked
to be suppressed the customary method OF
procedure is to walt until the deposition 4
offered in evidence before objections 70 Ger
not an infexfble rule, ana where nothins
stricken from a deposition the ACTION /,
without prejudice, whether done before OF
after It is actually offered in evidence.
of legal capacity Of the ~testaior can oni,
be shown when made by a sole Iegate:
under he will, but the declarations OF on,
who 10 an executor and not a sole legate,
are not admissible as against the rights O
the other legatees.
s. Nc belief that has any evidence for "a
basis Is. in law, an insane delusion.
g. The prima facie showing of mental ca
pacity Of 9 testAtor, made BY the testimon,
come by the proof that the, t%estator wa
old. feeble in health and almost blind an
that his mind was not so strong as for
UleIIV.
T. Evidence and held insuficien
to show undue influence.
Bushnell & aIessnsr Company. Error from
Cedar. Rehearing., Former judgment ad
hf T. Where Ssi r fSs trial al d 1lElsiO 9ej SS; :. c.rta,
evidences upon the express ground that IL 1
not admissible under the answer acduies
amend and amending the answer is :,
waiver of any error In the rulings based OF
the pleading prior to amendment.
Of fact not sustained by the particuia
facts upon which his conclusion Is base,
ni iefos not State &c ssO assfsst to SIeo inssi stat
Former opinion adhered to. Oldham, I
The right Of review on appeal is con
fined to those who are parties to the sui
lO246. Western Mattress compsny agains
Judgment adhered to. Pound. c. DivisiO
The former opinion in this cause adhere
1915: BOYD against qsorge. Error fror
1, Where the lessor tells the lessee I
quit the premises anc the lessee does quI
and the lessor takes possession himself, 9
accepts rent from another, such change {
possession by mutual agreement operate
as a surrender and termination of the leas,
2 Evidence examined and found to sui
tain the verdict.
correctly to state the issues involved In IN
i0sS. Brown against Houghton. Eric
from Cunning, Affirmed Kirkpatrick,
L Assignments OF error not argued or r,
He'd on IN briefs OF counsel will be deeme
2. IN an action for en- accounting whereI
the answer. IN addition to a general denia
ties, and plaintiff demurs to such answe
on the ground that II does not state fact
suficient to constitute a defense, and aftS
murrsr. refusing to plead further, a judi
ment of dismissal BY the trial court
B. a demurrer searches the entire recorI
pleading was first detective In substance.
tF 1SSS' Rie As1SI'eSnka As sEaasdd. Sea- ssdrw. ext;
j. II viii gives Issaeies generally an
sonal estate in one mass the legacies. COZ
stitute a charge upon thu whole residuaI
estate. real as well as personal.
3 Executors who are also ~residuary Leg
tees and nave given bond under section ]
OF the deoedent act, takes the estate FRI
OF the Hen of such legacies. but II. instes
Of such bond, the bond REQUIRED Of. a gel
eral executor Is given, such legacies wi
be a charge upon the estate.
| 3. A purchaser OF land from an execute
who derives his title through the will
residuary legatee II bound by The terms
the viii. which impose a charge. upon Il
iOs21. Bourne against o'connor. Appe
from Douglas. Affirmed. kirkpatrick.
where the evidence Is conflicting. b
sufhcient competent evidence IL In the re
ord 10 support the finding. the judgme
will not be set aside by a reviewing court
1851, Deering against Kohout. Appe
from Thayer. Affirmed. Dune, Q. DfN
sion No. g.
IA married woman held title to certa
real estate and q Judgment creditor OF h
husband filed a bin TO subject the proper
to the payment OF his Judgment. r.
answer. among other allegations. contain
J the following: Defendant denies eve
material allegation Of the petition" He