Omaha daily bee., 1903-03-09
SUPREME COURT SYLLlBI.

The following opinions Will not be OF
hcially reported:
1850. McNerny against Hubbard. Appeal
from Lancaster. Former judgment adhered
to. Hastings, c., division No. l. Unreported.
/. The question of whether or not the
Incorporation OF Hubbard Bros. company
was fraudulent held to depend upon
whether or not the 5000 Indebtedness of
Hubbard Bros, a partnership to Enoch
object OF Incorporating, was bona hde.
?. Evidence held sufficient to uphold the
finding of the trial court and former judg-
ment of atirmanCe adhered to.
1853. Block against Fuller. Error from
Pawnee. Affirmed. Pound. c.. division No.
2. jnreported.
1. Where either by the terms of the mort
gage or by contemporaneous understanding
the m%ortgagor of chattels In possession
the ordinary course of trade for his own
benefit. such mortgage Is fraudulent and
void as to creditors.
121O7. Killers against Yeiser. Appeal from
Webster. Former judgment adhered to.
Oldham, c., division No. 2. Unreported.
l. Action of the trial court In admitting
and excluding evidence cannot be reviewed
1886. Phoenix Insurance Company against
Radford. Error from Kearney. Reversed.
Kirkpatrick, c., division No. J.. UnrepUrted.
l. There Is no presumption that an agent
of an insurance company authorized to
solicit insurance has authority to canceN
policies of insurance upon request OF the
insured.
p Evidence examined and found INSULT
cient to sustain the verdict and Judgment.
12433. Moores against State eN rel Cox.
Error from Douglas. Judgment of district
court granting peremptory writ reversed
and set aside and action dismissed; Hast
l. Section 646 of the Nebraska Civil Code
prevents the issuanc of a mandamus In
any case where the ~relator has a plain and
adequate remedy in the ordinary course OF
law. -,
2. An application for a mandamus and
evidence introduced under 1t which both
fail tp ghnWr 81 definite salary attached TO
an office so that by the lapse of time and
the operation of law a fixed sum Will be-
come due the do not disclose a
right to a mandamus to compel a CITY or
its officers to issue a warrant for salary.
3, Evidence held insufficient to show re-
lator's incumbency in an office with sum
cient certainty to entitle him to a man
damus for salary.
1887. School District No. l of sarpy
County against Mccormick. Appeal from
Sarpy. Decree of district court reversed
and cause Dismissed. Duffie, c., division
No. 3. Interpreted.
/. Section II. subdivision 2, chapter ~.
OF the Compiled Statutes of 1897 deals eX-
clusively with such taxes as II Is contem-
plated the electors themselves shall vote,
and the 25-mill limit imposed by said sec
ton does not apply to a tax certihed 10
the county authorities by the county super
intendent of schools upon the creation OF a
?. School district No. 40 was created by
the county superintendent. a part OF ats
territory being taken from district No. l..
The superintendent found that district No.
40 should receive from district No. / the
sum Of S543.33 and that a tax OF 8 mills on
the dollar on the property of district NO: !
was necessary to raise the amount. Dis
trict No. 1 voted a tax OF % mills on the
dollar and the county Gommlssloners, sup
55 mills for sill purposes, levied 20 mills on
the property of district No. 40 for general
school purposes and 5 mills for the payment
of its Indebtedness to district No. 40. Dis
trict No. / rade claim to the. whole tax;
Held, hat while the county board could
for by the vote of the electors Of district
No. / and the amount certlhed by the
county superintendent as necessary 70 pay
each district was entitled to the amount
levied in it's favorsand no more. q
l254S. Peterson against Ferbrachc Error
from Lincoln. Reversed. Alpert' - DiNi-
sion No. 3. Unreported.
Evidence OF a contemporaneous oral
agreement is inadmissible TO contradict or
vary the terms of a written contract
1886. Pope against Whitcomb. Error
from Saline. Reversed. Barnes Z. DlVi-
sion No. 2. Unreported.
Where the evidence on a material fact Is
conflicting and different minds might draw
different conclusions or differences mere,
verdict for either party,
126o7. Gretsch against Maxheld. Error
from Saline. Reversed. ALBERT u DlNl-
sion No. 3. UnrepOrted.
/. AfRdavits, filed I'm support C. objections
to Jurisdiction over the person, TO be avail
able in proceedings d IN error must De pre-
, person appearing specially for the
purpose of making such objections must
point out specifically the defects upon
which he relies. Following Brown v. Good
year, 20 Neb, S76.
126iO. McEldon against Patton. Error
from Otoe. Reversed, with instructions
barnes, G. Division No. 2. Unreported.
/ A tender to be eifectual must be with
out conditions and made 10 the party III
2. The plaintiff in an action already com,
menced is not compelled to receive q sum
of money paid into court In satisfaction OF
his claim unless the sum 50 paid Is sum
cient to include the costs TO the tme OF
payment.
amined and held to relate only to the
amount of plaintiffs claim, ana vas not
sufficient to include and require the pay
a The giving Of an instruction which as
sumes the possible existence OF d tact; 1r
state of facts, which the jury has no right
to find, there being no evidence In support
of II, is error.
S. The trial court has no right to refuse to
receive a verdict which responds to the Is
sues and is sustained by sufficient evidence
because II contains the words and plain
tiff to pay all costs" The question or costs
are merely surplusage.
&. After refusing to receive such a verdict
II is error for the court, over the ob1ec-
lions of the plaintiff, to instruct the jury
that under the deposit made In the court II
1t should find a VERDICT lot inS ISIe Ieu
receive the money In the hands OF the c'erk
The following opinions VIII be o~fhcially
1854. Leake against Lucas. Error from
Dodge. Former judgment adhered to.
Dufie. c. Division No. 3
/. The husband while living with ms wire
is part of the family and medical attend-
ance of which he stands In need Is a FAMILY
necessity within the meaning or section l,
chapter Iii, Compiled Statutes. -.
2. Where medical attendance Is Iurnlshed
the husband under the circumstances mem
toned in the first, headnote ana while me
family is residing in this state, and the
family afterWard removes 70 a sister state,
a Judgment against the husband IN the
state to which he has removed ana the re-
turn of an execution unsatisned Is a sum
Client compliance with our statute TO entitle
the creditor to proceed against the wire Tor
the collection Of his demann.
1908. First National Bank OF Greenwood
against Wilbern. Error from Cass, FORMER
Judgment adhered to. Ames, C. DIVISION
No 3.
/. The mere fact that a creditor has In
his hands property OF a principal debtor
suficient in amount to pay or secure the
debt does not of Itself operate 70 release
the surety, because II does not or ltselt put
It cut of the power of the surety, atter tne
PAY ment of the debt, TO resort TO the prop
cry for his indemnity.
.. A creditor by fraudulently encumberlng
or concealing the property OF an lhsoIkent
principal debtor so as 10 delay OF ,eihpdI-
rass a surety I'm obtaining re-
leases the latter from Liability.
OF the court and the plaintiff would pay the
costs of the action,
7. Under the undisputed evidence IN TINS
case held that the plaintiff was entitled TO
recover the sum Of $50, with legal interest
to the date of judgment, ana the costs
should have been taxed 10 the defendant.
1858, Omaha OIL and PANT ComPan