Omaha daily bee., 1903-01-19

tachment the only jurgment which the
district court is authorized to render and
enforce rs a Judgment Affirming or revers-
ing the order of the justice and taxing the
costs incident to such proceeding.
8 section col of the Code of civil Proceed
ure, which declares that when the judg-
ment Of a justice of the peace shall be
reversed the cause shall be retained I'm the
district court for trial, has reference only
to cases which have been entirely disposed
OF by hnal order or judgment, and which
may De again tried and determined.
lE5W. Hendricks against Fremont, Elk
horn ~ Missouri Valley Railroad company.
Error from Saunders Affirmed. Dutie. c.,
/. A railroad company is not liable for
Injuries caused by a team taking fright at
the ordinary operation OF a train upon its
road. Chicago. Burlington 4 Quincy Rail-
Rep, 77.
1900. Portsmouth Savings bank against
City of Omaha. Appeal from Douglas. At
hrmed. Hastings. G.. division No. l.
J. A petition in substantial compliance
with the require ments of law, by the own
ers OF a majority Of the foot frontage OF
lots abutting upon a street, which is pro-
posed to be repaved, Is a necessary pre-
requisite TO any jurisdiction on the part Of
a city council to specially assess TIE abut-
ting property to pay for such improve
ments.
2. The signature Of a wife's name to such
petition, executed by her husband with her
authority and in view and hearing from
che place where she was at the time. is
equivalent to a signature by herself.
3. The signatures by executors and trus-
tees of an estate to whom Jointly 1t is de-
yised TO be held and managed by them
during the life time. of the testator's wife,
with full discretion in the management
and control of said property with the view
of increasing its value and deriving the
best possible income therefrom.' are the
signatures of the owners in the meaning
of the statute.
Z a notice to the property owners to
select material for such paving published
Tor the required time and in the required
manner substantially In accordance with
the requirements both of the statute and
the city ordinance, is not bad because not
directed to the owners by name.
5. The provisions that whenever any re-
paving shall be declared necessary by the
mayor and city council and an improve
ment district created, notice to the prop
erty owners should be given to designate.
within thirty days the paving material to
be used, does not make II iurisdictional
that such declaration afirmatively appear
OF record In the councils proceedings, since
other parts OF the statute make such aC-
fied. mandatory "He" proper pe''lohS are
6. That one Of the days of publication
is. Sunday is no objection to the suficiency
OF the publication Of notices for an equali-
cation board meeting to be held on Sep
TENDER IL, whose notices were published
IA city board of equalization, when
regularly in session. with due notices pub
iished of matters to come before it. acts
1udicially upon matters within it's jurisdic-
ton and such action is not open to col
lateral attack.
s. A finding that the property is benefited
.'NH ~ 'AN NooN VI ebl'l
proposed levies' is not so defective in not
finding the property assessed to be bene-
fitted proportionally to its frontage as TO
warrant an Injunction against collecting a
tax levied on that basis.
3. Matters not argued in the brief of
counsel nor urged in oral argument are
deemed waived.
1925, o'Connor against Aetna life In
spramGe G8UmPahEy; ErroT IRON Dodge Al
l.. The plaintiff borrowed money to pay
and discharge a mortgage on his farm
which was about to mature, giving his
note, secured by mortgage upon the same
premises, for the amount borrowed. The
lender undertook and agreed to use the
borrowed money to. discharge the first
mortgage and paid the same to the mort
gage without requiring a surrender Of
the note and mortgage. Afterward an
commenced an action to foreclose the same
and the court found that she was a bona
foreclosing the mortgage. The borrower.
after this decree had been affirmed in this
court, and more than five years after pay
ment had been made to the first mortgage,
brought suit against the party lending the
money to recover damages on account of
neglect of its agent In paying the money to
the wrong party. Held, that the action
was barred by the statute.
124S2; Wood against Carter. Appeal from
No. 8.
l. The right Of action preserved by sec
ton q of the Code Is assignable. together
with the Judgment therein mentioned, in
like manner and with like effect as other
cases III action.
2 An a~ssignor of a chose in action is not
a necessary party to an action upon II by
the assignee.
3. When one of two or more parties
debt has been duly served with summons
In one county of this state a summons
may be issued to and served in another
county upon another party also so liable.
4. Partners are Jointly and severally liable
for partnership debts.
8, Matters once litigated and determined
Will not be re-examined in a subsequent
action between the same parties.
Affirmed, Barnes, c., division
/. The joint owners of partnership prop
tain replevin to recover the possession of
their personal property against a stranger
who claims an interest therein and detalns
1t from the possession of any one of them.
2. The commencement of a suit I'm re-
pleyin which was Immediately dismissed
without prejudice and the property In ques-
ton returned to the officer to be delivered
by him to the defendant will not operate |
as a bar to the bringing of a subsequent
3, In such a case the property will not be
considered TO have been in plaintiffs pos
session at the time the subsequent action
a. The verdict of a jury based on con-
hicting evidence will not be set aside UNI
less We can say, upon an examination OF
all of the testimony, that 1t is clearly
wrong.
5. Where a joint owner of personal prop
liz
others, is made a plaintiff, with them
jointly in an action in replevin to recover
the possession thereof. makes no objection
to the use OF his name in the prosecution
of the suit. the defendant cannot object for
and thus defeat the action.
1896 Mutual Benefit Life Insurance COM
pany against Daniels. Appeal from Doug
las. Affirmed. kirkpatrick, c., division
No. /.
/. Where a note provides for 10 per cent
interest after maturity and an extension
agreement is entered into between the
maker and holder, extending the time of
payment and providing for G per cent In
terest thereon during the period of extern
sion. after the expiration of the period OF
the note will again draw interest
at 10 per cent.
2. Where, in the foreclosure of a mort
plaintiff prays Judgment for taxes by
him paid for the protection of his security
and offers in evidence tax receipts for this
Sc paid, such receipts are prima facie
evidence OF the payments Of such taxes.
l246S. Dakota county against Bartlett. /
Error from Dakota. Affirmed. Hastings,
c., division No. !.
1. A county attorney has authority to
waive issuance and service OF summons
in error In a case against a county in
uvhEgh hn hos M rcd fnp - % Vh. 4-g.1 |