Omaha daily bee., 1902-12-15
SUPREME COURT SYLLABI.

Riley Bros, Company against Melia.
department 2. Unreported.
H. ~ IerieGting OF an appeal TO- this
q suit OF equity together with the ming
and approval OF a supersedeas bond. oper-
atos To- pend such decree. and the case is
therepuOn pending here for al de nOvO.
2 By the perfecting Of such appeal the
parties are placed In the same situation
and their rights are the same as they are
at the time OF the commencement Of the
action.
8 In a suit in equity brought here on APP
peal this court has full power to render
such a decree as it shall find the district
court ought to have rendered. Upon a
settlement OF the matters in controversy
sent OF. the court, such decree may be
rendered as they may agree upon.
4 One cannot maintain an action based
solely on a decree OF the district court I'm
a suit In equity, to which he was not a
party, and which decree had been super
at the time his action was commenced.
where such decree was not affirmed, but
was reversed and the suit in which 1t was
rendered wa dismissed for want Of equity.
12lS0. Mares against Bell. Error from
Boone. Reversed, with instructions. DUFF
he, G. Division No. 3.
A mortgage on real estate continues as a
len thereon for ten years only from the
maturity OF the debt secured. II the debt
secured is payable In installnents the mort
gage cannot be inforced as a security for
any installment due and payable ten years
or more pricr TO the commencement of the
12ls9. Haslack agalnst Wolf. Error from
Platte. Reversed and remanded. Pound,
specially.
A promissory note is not rendered nom
negotiable by an agreement to pay the sum
named with exchange on a point other
than that at which It Is payable.
1222l Trompen against Yates, Error
Division No. l.
/ Mortgagees holding mortgages Of
various priority on the same goods, who are
1ntntfN in nnEEnggtnn of them ma min ~
an action against the sheriff fer deprlving
tn, Of possess on ana c5nverting The goods
2. The fact that another mortgage ex-
ecuted at the same time and as part of the
ton will not impeach she other mortgages
where the parties act in good faith and
surprising the first mortgage valid.
& Error In refusing instructions must be
specifically pointed out.
4. Not error to Instruct a jury In a proper
case as to the right to prefer creditors, nor
Is II error TO tell the jury that accidental
Inclusion Of too large an amount in securing
preferred creditor is not fraud.
3, Not error to tell jury that the same
rules of law apply to an intervenor as to
the original defendant, and that no judg-
ment is asked as to the lntervenor.
1894. Union Pacific Railroad Company
against Howard County. Appeal from
Howard. Affirmed. Albert, c. Division
No. 3.
/. The word townships, as used in section
II, chapter xiv, Compiled Statutes, held to
have been intended by the legislature to
oNsAhAoAt NV BANAAllNAo AlAAo ia d NbuAAg
not under township organization is divided
Tor administrative purposes.
levied a rs h9t the Va faSab TIe'e pToparty 10 of e s1 5a6
precinct for local improvements that such
improvements are for the use of the public
3. A tax, in excess of the limit allowed
by law, Is void only as TO such excess
from Kea a = SfTsmed Mo oIngT Trror
/. An act entitled An act to amend sec
uon =, chapter Compiled Statutes of
Nebraska" justihes any legislation by way
of amendment to the original section which
Is germane to the subject matter contained
on the section amended.
2. Section 10, chapter xxxli, Compiled
Statutes Tor 1901, entitled Frauds prior
to its amendment in 1885 provided for the
filing and indexing of mortgages Of chattel
property and for the release of such mort
cages when the conditions thereof had
been performed. Held, that the amend
ment of the section in 1885, by providing
for the recovery of a stated sum as liqui-
dated damage, by the ~mortgagor for FAIL
ure and refusal of the mortgage TO re-
lease such mortgage after the conditions of
the mortgage had Deen performed and after
demand therefor was embraced within the
proper scope of the legislation enacted by
the original section, and was germane to
the subject matter therein contained. and
that such ~amendatory act does not con-
tuition, which declares, mo bill shall con-
tain more than one subject and the same
12249. Moss against Fairbury. Appeal
from Jefferson. Reversed, with instruc-
lions. ALBERT, -. DIVISION NO. g
/. The provisions of section 90, article l..
chapter xiv, Compiled Statutes, in regard
to the making of an estimate Of the cost of
a proposed Improvement, have reference to
contracts for laying sidewalks in pursuance
Of the provisions of section So OF the same
article.
2. The provisions in regard to such esti-
mates are jurisdictional and the cost of a
sidewalk, laid without a compliance there
with, cannot be made the basis Of the levy
of a special assessment against the ada
cent property.
from Lancaster. Reversed, with instruc-
lions, Ames, c.. Division No. 3,
l. Ordinarily the right to the custody and
to decide upon the hnal place of burial of
resides in his next Of kim, and this right
the court will not lightly disregard, or treat
as having been waived or relinquished, eN-
cept upon clear and satisfactory evidence OF
conduct Indicative of a free and voluntary
intent and purpose to that end.
2. Evidence examined and held not to be
sufficient to bring the case within the above
mentioned exception.
3. Territorial areas, described in the
nomenclature of the Roman Catholic
church as parishes, are not recognized by
the law or corporate or political entities,
and II they were such the church could not
! l%egtslate concerning them.
l23O7. Phoenix Insurance Company against
Zlotky. Error from Dodge. Affirmed. Old
ham, c. Division No. 2.
"A provision in a policy that no suit or
tanned in any court of law or chancery
until after an award shall have been OBJ
tanned by arbitration. 'nNing the amount
due after loss, is void, the effect OF such
provision being to Gust the courts OF their
legitimate jurisdiction" German-Amerlcan
lns. Co. against Etherton, 25 Neb., sos, fol-
lowed and approved.
1924. Howell against Anderson. Error
from Saunders. Affirmed. Barnes, c.
Division No. 2
/. Where one Is Indebted to a person who
dies intestate and afterward becomes ad.
ministrator of his debtors estate, II he be
solvent and able to pay the debt at the
time of his appointment, or any time dur
ing the administration of his ONCE, and be.
Will be required to pay over to the estate
In cash the amount of his antecedent debt
2. II the administrator seeks to be dis.
charged from his official liability for such
antecedent debt on account of his insol
vency and total inability TO pay the samI
the burden is upon him TO establish thai
fact.
3. Where II is shown that an admins.
traitor, at the time Of his appointment, was
hopelessly insolvent, was so during all Of
the time of his administration and re
NAMED IN that condition up to and includ
ing the time of his final settlement, ne viii
be permitted to turn over the evidence .
his. uncollectable debt to his successor, OF
other proper authority, and will be dis
charged from his official Liability therefor
1898. Welch against Tippery. Appea
from Burt. Affirmed, Pound, G. Division
/ In equity cases the district court ma,
in its discretion submit to a jury any cues
ton OF fact involved.
2. AS the findings of the jury in sucl
cases are advisory only II the court havinl
heard the testimony afterward adopts then
as It's findings, ana there Is SUFFICIENT com
? naNanH nWfAanna ~ sustain them nWEnWE q