Omaha daily bee., 1903-05-01
SUPREME COURT SYLLABI

1855 Nebraka Loan and Trust Company
against Corning. APPEAL from sherman.
Affirmed. Pound. c. D.vi ION No. ?. TN
less. Guthrie against Guthrie. Appeal
from Lancaster. Affirmed. Albert. c.
Division No. 3. Unreportsd.
/. On appeal to thisc ourt. as distingui he !
from proceedings in error, evidence eN-
cluded. by the trial court will not he con.
.. Evidence examined and held to sustain
the order denying confirmation OF n fore
1857. MCGOWAN against Votaw. Appeal
from Frontier. Affirmed Ames, G. Divi-
sion No. 3. Urreported.
When after issue Joined there has been q
trial and the record recites that the plain.
tin introduced all his evidence, which the
trial court found TO be insu mcient and dis.
missed the aC ion, the Judgment will not b
reviewed In this court In the absence o Il
bill Of exceptions. although II also ~recites
petition does not state facts sufficient to
constitute a cause of action.
,I less Werner against L!nsenmeyer Error
Division No, l.. Unreported.
/ The Judgment or order Of a district
court OF, d motion TO dissolve an attach
ment Will not be reversed Il sustained by
sufficient competent evidence.
z. Evidence examined and held sufficient
to sustain the finding and order Of The ira
court,
1277. State ex rel Necland against Foil
mer. Error from ster. Affirmed,
Hastings, J. Division NJ. l. Interpreted.
- " - M Will u ~ tbll
troll action Of the state commission r OF
public lands and buildings IN d]etermiuIre
10 whom he will make lease of public
2. Agreement by which one bidder was 10
bid on two tracts and one Of them far an
other party who was present. and tn lat.
ter was to take the lease II the land W.T.
secured under the bid. not neCes arily
against public policy where the Who'll
transaction was rot intended to. ana d'd
not in fact. have the effect to chill bIiding,
and was known TO the officers conduct n :
l24O3. Antilles against Schroeder. AppeaI
from Clay. Reversed. Holcomb. j.
!. The rule as to marshalling assets has
us proper exceptions and limitations, anc
where by reason of the circumstance in a
particular case II would be inequitable and
WORK an injustice TO require one Of two
creditors having a lien on two securities TO
hrst resort to the one on which the other
creditor has no lien, a court of equity will
not enforce the rule.
2. Ordinarily where several creditors haV-
ing a common debtor who has several
FUNDS, all of which can be reached by one
others, a &C urt of equity will require that
the former shall take payment out of the
funds to which he can resort exclusively.
so that all may receive payment.
.. II Is likewise a rule I'm equity that IL a
prior creditor having security ON two funds
satistes. his demand out Of the security or
Innd which alone Is pledged to a junior
creditor, and thereby eNhauStS that fInd
or security, the latter creditor will be cub
rCgated to the formers lien upon that fund
or security which is not exhausted.
.: Held, in the case at bar, that the plain
TIN Is entitled to equitable subrogatiOn to
the. lien of a prior creditor on other Sc
curity for any balance remaining due after
the, application Of the proceeds of the Sc,
curtty on which both have liens to tie pay.
ment In full OF the prior incum5rdnce.
ll6SS. Ferguson Sgainst Herr. Error from
Richardson. Former Judgment vacated.
judgment district court reversed. Kirkpat,
rick. e. Division No. |.
]. In rendering the decree provided for in
chapter IL, title XIV r.. s.. Neb., 1866, gov.
orning adoption of children. the probate
judge acts iudicially, and such decree has
tl the force and effect of a judgment.
being subject to cola teral attack only for
want Of jurisdictions.
?. The statute prescribing the procedure
IN the adoption Of children should he LID.
orally construed, to the end that the pro-
ceedings had Hereunder. and the decree OF
adoption made pursuant thereto, may be
held valid, substantial compliance with the
requirements of the statute being sufficient
to sustain the validity OF the decree of tho
probate court.
3. The decree rendered by the probate
court under the provisions of chapter a..
title XIV. Z. s. Neb., 1868, fixed the 81. .u,t
OF. the child and its adaptive parents, ana
when such decree. by failure 10 prosecute
error therefrom, is allowed to become haal.
II will. II in substantial conformity with
the provisions and requirements of the
statute, be conclusive upon all persons IN
terested In the proceedings.