Omaha daily bee., 1903-03-02

~ A., anniicafion Tor a continuance IS adj
dressed to the sound discretion OF the trlaI
court, and unless IL appears that there mas
been an abuse Of such discretion It's ruling
will not be disturbed
.. Where, by the rules OF the trlal court
II is provided that applications tor con-
tinuances must be filed on or betore the
first day of the term, and where II ap,,
pears that such application is not MEG unIll
the cause is called for trial. and IN the ap-
plication itself II is not shown that the APP
plicant has used reasonable diligence 10
procure counsel and obtain the testimony
Of witnesses whose evidence he alleges. Is
necessary to nab him to proceed TO trlal,
1t is no abuse of discretion to overdue the
T. Where the claim or demand. involved in
a suit is Identical with the claim or demand
in a former action. and the parties 10 p9th
suits are practically the same, the 1uog-
ment I'm the former action constitute an alb
solute bar to the prosecution OF the latter
4. With the exception that parties are en-
titled to two trials in ejectment suits, the
Judgment in such actions are as conclusive
In any other. Bryant against Estabrook' 10
3. Held, that an instruction by which the
Jury was told that the judgment In a
former suit, which was introduced IN eVl,
dence, was binding upon the plaintiffs and
was a bar to their prosecution OF this SUIT
6, The court having jurisdiction of the
parties and the subject matter In a FORMER
action, the judgment therein is conclusive
and is not subject to collateral attack when
introduced in another proceeding involving
the same matters between the same parties,
and evidence offered for the purpose of i'm
peaching it's validity was properly excluded.
I. Evidence examined and held that the
amount of the verdict for rents and profits
OF the real estate in question are not ex-
cessive.
No. 1861. Morgan against State. Error
from Red Willow county. Affirmed. kirk
patrick, c., division No. J. Unreported.
i. In a proceeding under chapter xxXvI:
Compiled Statutes, Nebraska, the record OF
the jIstice of the peace before whom the
preliminary examination was had, showing
that the examination was regularly had
and completed, is conclusive upon the ques-
2. In a proceeding under chapter xxxyii,
Compiled Statutes, Nebraska, the testi-
mony given by the complaining witness at
the preliminary examination is not original
evidence, but maybe introduced for the
purpose of confirming or impeachlng the
testimony of the complaining witress at the
trial; but, as the order of proof Is largely
within the discretion of the trial court,
held, not pretudiciai error to admit IN eyi.
the direct examination OF the complaining
witness.
before a Justice OF the peace is incorrect,
| the district court will, upor motion. require
a corrected transcript to be supplied, and
II is not error to deny an offer to place In
evidence the original docket of the Justice,
| the party making the offer having. previ-
ously, upon objection, procured the eX-
clusion. of a transcript of such proceedings.
4. An issue regarding which, there Is no
competent evidence is properly Withdrawn
from the jury
g. 1t is not error to refuse an instruction
requested when Instructions already given
substantially cover the same ground
6. Certain instructions examined and held
l. A Judgment rendered in a proceeding
under chapter XXxvii, Compiled Statutes, is
not void because II fails In express terms TO
provide for the defendant giving security
for the payment OF the sums adiudged
against him and thereby securing his
liberty.
1859. Lehmer against Horton. Appeal
from Douglas. Reversed. with instructions.
Lobingier, c. Division No. !.
One who furnishes, under a running ac-
count with the common owner of a group
of exposition buildings, materials for use
in the Illuminating equipment thereof is
entitled to a lien on such buildings, where
they are maintained for a common pur-
pose, though they are not all situated on
contiguous lots and though the claimant is
not able to show what portions were used
In a particular building.
125SS. City of South Omaha against
Hastings, Z. Division No. 1.
l. A petition signed as required by stat
ute is a necessary prerequisite to the as
upon the abutting property.
2. Evidence that the petitioners have nc
title of record to, the premises described In
the petition will support a finding that the
petitions We're unauthorized and INSULT
cient where the only evidence of owner
ship is the recitals of the petitions them
1855, sickler against Mannix. Error
from Buffalo. Affirmed. Dufie, c. Divi-
l. Petition for alternating the affection,
of a husband examined and held sufficient
2. A Judgment record cannot be used ir
favor OF a stranger TO establish facts re.
( cited in the judgment unless such finding
is based on an admission made by the
party against whom 1t Is sought to be
useG
1905. Matoushek against butcher & Son
Error from Boyd Affirmed. Barnes c
J. Where a new trial is asked for on tn,
ground of misconduct of the jury the ind
ing of the trial court on that question
based on conflicting evidence, will not bt
disturbed by a court OF review.
2. A motion for a new trial on the grounds
Of accident or surprise is addressed to th'
where II is shown that the facts on which
such claim is based were known during
the trial, and II is not shown mat an effor
was made TO meet these conditions. II can
lsnOt be said that there was an abuse OF dis
erection in overruling the motion.
Q. To entitle a party TO a new trial on tn
ground of newly discovered evidence II II
not enough that the evidence Is materia
and not cumulative, but II must further sp
could not nave discovered and produces
such evidence at the trial, and where tn,
or Inability to produce il is not a groun,
for a new trial.
T. Where a party, while on the witness
stand, properly Identifies a series of seal
or weigh checks as having been executes
and delivered to himself, or some one au
tnOrlZed Dy MIN 10 40 So lneS may NC III
troduced in evidence by the opposite part,
to rebut his testimony without furthe
Identification.
.. Held. that, the amount of the verde
in this case was amply sustained by tn
evidence.
1851. Bartling against State. Error fror
Cheyenne. Affirmed. Oldham, c. Oivisio
No. 2
/. Hesselgraye v, State Of Neb,, 50 n, "
Rep, :S5, and State V. Murdoch, 50 Neb
52l. examined, approved and distinguished
2. The conditions OF a recognizance 70
the appearance OF one accused OF a Grim
inal offense are not invalidated by IN
failure OF the term of court at which n
was required to appear on account OF a
adjournment or continuance OF such tel n
.. In such case the liability OF the suret
on the recognizance Is extended 70 IN
next term of court actually held as tnoug
no adjournment or continuance had Dee
had.
a. The conditions imposed upon a suret
on a r~ecogniEance by the provisions OF sec
lions 81 and 80. chapter XIX Compiled sta
! utes, examined y held reasonable an
binding.