Omaha daily bee., 1902-12-08
SUPREME COURT SYLLABI.

from Lancaster county. Arlrmed. Pounu,
c., Division No. 2
l. In an action within the purview of sec
ton 60, Code Civil Procedure, in one county,
against a defendant who has no real or bona
hde interest in the controversy between
the plaintiff and a co-defendant resident
In another county, a summons cannot be
Issued and served upon the latter in such
other county, and he may avail himself Of
the want Of Jurisdiction over his person
by timely plea thereof.
2 In such case, 1t is immaterial that there
Is a several and distinct bona hde contro-
versey between the plaintiff and the de-
fenuant resident in the county. IL the other
defendant has no interest or liability there
IN and the resident defendant has no inter-
est or liability In the controversy between
the plalntir ana the defendant resident in
the other county, since, under those cir
cumstances, the causes Of action are not
properly Joined.
3. The mere fact that two distinct and
several contracts with two different persons
are tor the performance of the same serv-
ice, VIII not authorize causes of acton
asainst such persons upon their several
contracts to be Joined in one action.
g. The court will take judicial notice of
lts own record in the cause then before II,
and the process and return by which it
mas acquired jurisdiction need not be put
In evidence.
5. 1t is the duty of a plaintiff in error
To bring TO this court a sufficient tran
script OF the record to show error afirma-
livery; II there is not enough upon the face
OF the transcript TO cause the judgment
TO appear necessarily erroneous, the pro-
Geedings in error must fai!. Bush against
National Bank, Neb., 80 n. w.
l15O1, Union Life Insurance Company
against Parker. Error from Douglas counts 4,
AIhrmed: Hastings, c. division No. l.
l. Delivery of an insurance policy to the
insured by the insurer is prima facie evil
dence of the payment OF the cash consld-
Grafton recited in the instrument.
T. MneTe insured gives his NOTE dIa In
ninety days from the policy's delivery,
payable to the order of the insurers agent
Tor a part of the first premium, and the
agents employment contract entitled him
to 100 per cent of the first premium as his
commission, and he was charged with the
amount of such premium, and sold the note,
and insured died after its maturity with
out having paid 1t, and afterward the in
surer bought, 1t from the agents endorsee
and denied liability on the policy because
Il contained a stipulation for it's suspension
during default on any note given for
premiums, a finding by the trial court
against such contention of the insurer
should be sustained.
No. 1872. Guthrie against Treat. Error
from Nuckolls county. Affirmed. Barnes,
/. Where a promissory note is executed to
l. and another one to l. and at the same
payment Is executed to 7 and l. jointly the
holders of the two notes may be Joined as
plalntins In an action to foreclose the
2. The sale and delivery of one of the
notes to another person by the executors of
the estate of the payee thereof carries with
1t the proportionate part of the original
debt, and pre- tanto, the mortgage security
incident thereto.
8. An allegation that the executors of the
estate or the payee, by virtue OF the author
ity In them vested, sold and assigned the
note In, question to the plaintiff for a full
and valuable consideration is sufficient 70
raise the presumption of a valid sale and
that thereafter neither the estate nor the
executors had any interest in the note OF
the mortgage security.
4. Petition examined and found to stats
facts sufficient to resist a general demurrer,
B. Held, that the defenses contended for
by the demurrer, If they in fact exist
should have been raised by answer
No; 1858. State ex rel. Prout against Ne.
braska Home Company. Quo warranto.
Demurrer sustained. Judgment of custer
L To constitute a lottery 1t is necessary
that a prize be offered, and something OF
value be given for a chance to obtain the
2. The prize may be anything of value; a
preference or privilege in the distribution
OF q common fund among those entitled
thereto may constitute a prize.
3. A scheme whereby a common fund Is
to be produced by the contributions of varl.
Gus parties, and afterward distributed
among the parties contributing thereto, and
a valuable preference or privilege in the
distribution thereof is made to depend upor
chance, is a lottery within the meaning OF
our statute prohibiting lotteries.
4. Contracts in which a corporation, Ir
COlSiuctdllOH u Stated payments made tC
II, makes promises, which are the main in
ducement to such contract, and are i'm.
possible to perform, are unlawful, being
against public policy.
5, A corporation, organized under the
laws OF this state, which is engaged in a
business forbidden by state. or Unlawful
OF Its charter and dissolved by proceeding,
In quo warranto.
1221S. shuster against shuster. Appea
from otoe. Affirmed. Pound, c. Division
No. 2. Unreported.
/ While the habitual use Of rough or vii,
language may amount to cause OF divorce
the parties, the situation in life and the de,
gree OF cultivation and refinement they ex.
2. Where the testimony in a suit FOL
divorce tends to show that each party was
addicted TO the use of .profane languag,
about the home and In addressing IN,
other, the court Is justified In refusing /,
grant a divorce to either on hat ground.
g. Whether the alleged improper languag,
of the husband was provoked by indiscree
actions of the wife, unless the -languaR.
used was, entirely disproportionate to IA,
l2z2S Dunfen against Barber. Error from
Franklin Affirmed. Dufie, c.. Division
/. A Judgment entered on conflicting evi
dence VIII not be disturbed unless cIearl,
2. Where 1t is desired to impeaeh a wit
ness by showing statements made by hin
contradictory TO his evidence given unoI
ne trial his attention must be called L
- NAA1 NCAN 1A 1d AOI HNn
which IL is proposed to contradict him. al
wei also as to the time Wnen, the piac,
where ana the person to whom he is sun
posed to have made the contradictory sta te
ments' The declarations OF a party to IN,
action made against his own interest ar
always admissible evidence and may b.
shown without calling his attention 70 m
time and place of such declaration or IN
party to whom they were supposed to b.
made.
In the supreme court of the state O
Nebraska. December 3. 1902, the followin
opinions were officially reported:
sSfA Larson against First National Banh
Erfor from Thurston ounty Former iuug
ment adhered to. Pound. c.. dfvisioi
l. A pleader is not required TO anticinat
matter In avoidance of his allegations.
Where a statute authorizes executiy
oHcers TO make general rules for the cor
duct OF public usine and such rule
are duly made and published, the court
Will take judicial notice of them.
). AS II Is the settled practice Of thi
court that a judgment will not be reverse
Tor errors not argued In the briefs Z
counsel, a decision Affirming a tudgmer
does not become a precedent as 10 an
to the court and left unnoticed In IN
opinion, although It might have been RAISED
case.
T. The former opinion in this case CNel
81 N, w; Rep, $50 approved.
q Pacific Railroad Company. Error frol
Sarpy county. Former Judgment vacate,
Judgment OF district court afnrme,
Ames, c., division No. 3.
l. An employer is not liable In damage
for the consequences of mere error IN iudI
ment in furnishing structures, machiner
and appliances for the use OF his servant
In the prosecution of his business, unless