Omaha daily bee., 1903-03-30
SUPREME COURT SYLLABl

The Following opinions will be oficially
iossi. Farskner against simms. Appeal
from Harlan Former judgment modide
and adhered to. Pound c. Division No. q
i In passing on findings of fact upon APP
peal the reviewing court should go over all
the evidence and reach its own conclusion
thereon, giving such weight to the deter
mination 81 the trial court as to credibility
OF witnesses and Its finding on conflicting
evidence as, Under ali the circumstance
on the case, the nature of the evidence be-
fore the trial court, and that courts spe-
clal opportunities, IL any, for reaching a
correct solution, such finding may be en-
q In ordinary cases. where the evidence
is entirely oral and the trial court may be
presumed to have had a general local
knowledge OF the parties. the witnesses and
the trial court is often entitled to almost
decisive weight.
8. A finding. on conflicting evidence in
such cases will be adhered to unless clearly
wrong. But II clearly wrong IL will be set
aside, Notwithstanding there may be some
competent comp evidence & in support thereof sey-
with respect TO review OF findings Of fact
explained and qualified.
5. The statements that the reviewing
court will not weigh conflicting evidence
mat It will not review findings on con-
hicting evidence" and that findings on
conflicting evidence are conclusive" as an
nounced obiter in several prior decisions,
8. Where a finding is based largely upon
dispositions or written testimony, as to
which the trial Judge has no special ad-
vantage over the reviewing court, the rule
that his findings will be adhered TO unless
clearly wrong does not apply with the sam
Z. But in such case II the oral testimony
is evidently the basis of the finding or the
written testimony relates to matters as to
reach a satisfactory conclusion than the
reviewing court the rule may be applied.
Male Dahlgren, Neb., % N. w. Rep, $40
ksl eirs' National Bank " waldrOn' 50 NeO''
8. If the evidence before the trial court
as to which the trial Judge is in no better
position TO reach correct solution than
tthiis this court the rule has no application, and
conclusion as to the weight of the evidence
u IN iurtnerance of justice, where a
finding is set aside on appeal and the for
mer trial was unsatisfactory, instead of
entering or directing "a new decree, this
court will remand the cause for further
llSIs; National Aid Association against
Bratcher, Error from Clay. Former judg-
ment adhered to. Albert. c. Division
l9o7s. Peyeke against shinn. Error from
Douglas. Reversed. Albert, c. Division
l. Where it is sought to establish a con-
tract by letters, there must be evidence
tending to prove that they are In the hand
came from him or his authorized agent or
were received In due course of mail in
answer. to letters duly mailed to the ad-
uIess OF the party sought to be bound.
q Ordinarily to Justify the receipt of a
copy of private writing in evidence IL
writing, admissible in evidence, which has
been lost or destroyed or which is i'm the
possession Of the adverse party. who re-
tuses TO produce II upon due notice
g. If a message to be sent by telegraph T.
not reduced to writing by the sender he
MAKES nnss TN, 1ne company CO. his agent for that pur
deny that a paper offered in evidence was
In fact reduced to writing by the telegraph
company or delivered as his message.
L. Where depositions are withdrawn from
q case to enttle them to be read on the
IriaI tney must be refled IN accordance
Win the provisions of section 3S7, Code
civil Procedure.
B. In this state the taking of dispositions
provision which requires leave OF court ~
entltle party to take a second deposition
OF the same witness for use in the same
12342. Villa against Grand Island Electric
Light, Ice and Cold Storage Company. An
peal from Hall, Judgmert. Lobingier, &.
l. A receivership is a purely ancillarv
remedy and cannot be maintained in a
proceeding instituted solely for that pur-
2. Unless expressly authorized by statute
court has, no Jurisdiction to appoint a
LecelyerSof corporate property upon grounds
which would not be suffcient were ihs
owner natural person.
o. a receiver cannot be appointed at the
instance or a mere mortgage for property
not covered by the mortgage.
q jurisdiction to appoint a receiver of
corporate property cannot be conferred bv
the mere consent of the corporation where
neither equitable nor statutory grounds
exist and where other parties whose rights
are anected have not been notified nor Is a
stockholder concluded by such an order.
l2455. Reischick against Riger Error
from hiehaIdson Reversed. Albert G.
1. The county court has exclusive original
1nLTlsaiction L OF all probate matters. and
such as the county court, in the exercise az
its probate Jurisdiction. might grant, the
district court has no original Jurisdiction.
| ON the facts stated, held that the dis
trict court was without jurisdiction to con.
strue a will and order distribution.
from Gage. Affirmed. Ames, c. Division
The proviso in section 8, chapter lxxviii
have not been used within Ave years shal
be deemed vacated" was intended 10 apply
within fiye years before the enactment O.
such section.
l2t45. Modern brotherhood of Americ,
Affirmed Kirkpatrick, c. Division No /
| u; where an insurance company denies al
baoiIlty tba grSa on policy 6asing its refusal o.
against has not occurred the Insured ma,
bring an action thereon without waiting
1or the expiration of the period limiting tn
brought -
2 IN an actlon on an accident INSURANCE
policy plaintin alleged the Academia
breaking of his arm. The theory of the de
Tense was that the arm had not beeI
broken, and resistance of the claim wa
based upon this ground. Held that IT wa
not error to exclude evidence that the ac
tion was prematurely brought under th
terms of the policy.
3. The evidence that proofs of loss or in
| jury under an insurance policy were dull
furnished being undisputed, tne defendan
at no time urging the failure to firnisl
such proofs, litigating its case upon tn
merits, an instruction purporting to stat
the essential elements of plaintfffis proo
will not be held erroneous for omitting I
mention the necessity of filing proofs o
loss
4, Afidavits addressed to the trial cour
after judgment on a motion to amend tn
| reporters notes of the evidence cannot b
| considered by the appellate court In tn
absence Of a ruling by the trial court o.
such motion,
5. An accident insurance policy provide
that In case Of death resulting from an ac
cident the beneficiary would be entitled /
the full sum of one regular assessmen
upon all members of the association 4
: good standing, not to exceed $1,000, and /
case of the accidental breaking of an arr
| or leg the insured would be entitled 10 one
tenth OF the sum which the beneficiar
would have received in case of the death q
the insured In an action on the policy
SAeging the accidental breaking of an arm
Ihe plaintiff asked a witness II he kne'