Omaha daily bee., 1903-02-24

the liens Arising DIV reason OF INC HtNtAdA
assessments against the different constitu-
ent companies and properties attach to the
new property owned and operated by the
entirety" Bdncoln Street Railway Co.
against The City OF Lincoln, supra.
16. where, however, a mortgage was
placed upon a street railway property. and
afterward another company, against .Which
certain liens for taxes levied as special as
the mortgagor company, held. that the lien
Of the mortgage on the property covered
thereby, without the consent Of the mort
gage. could not be impaired by the agree.
ments and acts Of consolidation, and that
the tax lien on property consohdateu ana
merged into the new company. and with the
property mortgaged, could not be made
prior to the mortgage lien on all the prop.
erty after consolidation; that the tax aud
mortgage liens attached to the specific prop
critics embraced in the levy. and the mort
gage, respectively" In accordance with their
way co. against city of lincoln, supra.
II. Where the trial court finds, on sum-
Client evidence, that certain assessments Tor
paving taxes were in contemplation at the
time of the execution Of a mortgage by
the street railway upon It's property, IL
follows as a matter of law that the lien
OF such taxes are superior to the lien OF
is. Assessments for paving one foot out.
side OF the rails of street car lines will
not be held void where such paving was
lone while the statutes were In force pro-
viding that street railway companies should
be required to pave between their tracks
and one foot outside of the rails thereof.
~. The diStrtCt court IN It's QlSCIttlou may
refuse to render a personal Judgment
against defendants at the time of the rendi-
tion of its decree in a suit to foreclose tax
liens, and may defer such action unul AFTER
the execution thereof.
1921. Dakota county against Borowsky.
Error from Dakota. Reversed. sullivan,
l.. A sheriff who has, either in person or
by deputy, guarded prisoners In the county
sary, entitled to recover from the county
compensation for such services at the rate
2. The right to determine the necessity
for such services before they are rendered
does not belong to the county board, neither
is the Judgmen of the sherin upon the
matter conclusive. Ultimately the question
is for the courts.
8. The specific fees provided for in sec
1901, pertain to the office of sheriff, and the
sheriff is entitled to. them whether they
were earned by himself or his deputy.
4. An appeal by a claimant from a deci-
sion of the county board upon a claim pre-
scented for adjustment ana ai4T va 81 va
favorable to the claimant.
5. When a claim Is by the county board
allowed in part and rejected in part, the
claimant must deal with the decision as an
entirety. He cannot accept the part that
is in his favor and appeal from the re-
i2lss. oberlander against Butcher. APP
peal from Cedar. Affirmed. Dobingier, c.,
/. The rule that no trust arlses in land
purchased for another's benefit unless the
purchase money is furnished at the time
nor, IL the claimant is a partial contributor,
unless there is an agreement that he snail
have an aliquot part OF the premises, Is
restricted to resulting trusts and has no
application to express trusts or those aris-
ing by agreement.
2. The statute of frauds is satisfied where
the cestui que trust takes possession OF
land purchased in pursuance OF a trust
agreement, Notwithstanding 1t is oral.
cestui que trust is notice to all the world
of his rights in the land,
124i7. McGlave against Fitzgerald. Error
from Lancaster. Reversed. Lobing1er, C.,
division No. /.
behalf of alb of an insolvent estate against
the administrators thereof and the county
Judge for an accounting, a petition which
alleges collusion between the defendants
and a fraudulent payment and retention or
illegal fees to the prejudice OF the creditors
is sufficient as against a demurrer.
2. The district court Is not deprived OF
jurisdiction in such a case, because plain
tin might have moved 20 retax the costs
in the county court or brougne an action
on the bond of the administratrix or sued
to recover the statutory penalty for taxing
2, Allegations of COLLISION and fraud on
the part of such defendants are sufficient
to entitle a creditor to bring such an action
without showing a technical refusal by
i2469. Farak against First National bank
If Schuyler. Error from Colfax. Reversed.
! Barnes, c., division No.
1. In a proceeding to revive a m
| judgment where the defendant pleads tacts
which amount to a paymen ana sarstae,,
is error for the court to deny a request for
a trial by jury. Mccormick against Carey,
%! An attachment will not lie in such a
I2Sif. Tfidball against Challburg Bros.
Appeal from Clay. Affirmed. Pound, T.,
i. Ii seems that a written agreement TO
S SSfTrs d Belonging thereto. and properly
used herewith at the option or the pro-
posed vendee, within a given time and Tor
a fixed price, II made upon sutlclent con-
alteration, will be specifically enforced in a
2, Where the writing does not indicate
nor is il shown that the proposed vendee did
or rave anything for such option, ana IL
is not contained In or a part OF some con
ply a consideration, II is a mere ofer from
which the vendor may withdraw II he
iSSIs. Flick against Broken Bow. Error
from Custer. Affirmed. DUNE, C., division
one cannot question the validity of an
ordinance until his rights are directly az
1851. New Omaha Tfomson-Houston
Electric Light company against Johnson.
Error from Douglas Reversed. Hastings
i evidence held not to support a finding
that plaintiffs intestate came TO his death
from accidently stepping upon scrap iron
electrically chaTg1d from ue ""e "e
. Evidence held to show that II fatal
contact was with DEFENDANTS guy WIZ
such contact was voluntary and AFTER warn
ing on deceased's part.
e. Defendant company held 10 pc unuer
dutv 10 exercise all reasonable precau-
tions against passing a dangerous curreni
! OF electricity through a guy wire attaeheo
to a pole on a vacant ana unincloseu iot
in a densely peopled part OF q city.
a Where an attorney prohers himself as
a witness and voluntarily gives testimony
in a case in which he admits having a
noptireent fee he should be required 10
answer on cross-examination as to the
amount OF such fee.
H Where there is a very slight evldence
of intoxication IL is not error TO re1use an
INSTRUCTION telling the jury that contrlpu-
tory negligence caused by intoNlcau0h
wonld be a defence, the court having iuliy
Instructed as to what would constitute
co%ntributory negligence.
129ii. Moores against State ex rel GoIooh'
Error from Douglas county Amrheu'
Ames. C.. division No. 3.
/ Matters once Irrigated and determined
will not be re-examined In a subsequent
| action between the same parties.
? When a warrant has been drawn. pur-
suant 10 An appropriation by a city council
for the payment of an installment OF the
salary Of a municipal officer, ana an
! ALTERNATIVES writ of mandamus has peen
issued and served TO compel the execution
and delivery of the instrument, an oroi-
nance. passed during the tendency OF the
4 action. and assuming to repeal the orol-
nance making the approprlauoh anu au-
thorizing the payment, Is void,
8, one who Is both a de facto and a de
lure incumbent Of a city once cannot pc