Omaha daily bee., 1903-05-02

rect OF revoking a prior Will either ~ rea-
son OF an express clause of revocation or
Of an Inconsistent disposition Of the tesla
tors property.
a. Unless the subsequent will expressly
revokes the former one, luch former will
10 only revoked so far as II IL Inconsistent
with the latter; a complete revocation will
not result unless the general tenor OF the
later will shows clearly that the testator
so intended or the two instruments are so
plainly Inconsistent as to be incapable Of
IA Courts do not favor revocation by i'm
plication, and incline TO such a co%nstruc-
ton as will give effect to both Instruments
Is. TIT fact that a subsequent will was
made Is not sufficient Of itself. and with
out some proof OF its actual contents to
show revocation OF a former VIII
will was revoked by Implication by reason
OF a subsequent will, which cannot be
found. must be clear. unequiYocal and con-
vincing.
1854. Herman against Beck. Error from
Saline. Affirmed. Albert, c. Division No. 3.
cd l. = Error oc,, Will lie from c an order 6 OF the he
estate Of c decedent, although no answer
or objections were filed against the claim,
and the order was made in the absence Of
the administrator.
2. Error from such sale may be prose-
cuted by the administrator alone.
g. Where error affirmatively appears on
the face of the record proper a bill of ex-
ceptions. is unnecessary to obtain a review
Of such errors.
ton & Quincy Railway Company. Error
from Valley. Reversed. Ames, c. Divi-
l. Except with respect to the relation of
partnership or Of principal and agent or of
master and servant or the like, the doctrine
Of imputed negligence Is not In vogue in
2. Unless the inference of negligence from
the conduct Of a party is so direct and
immediate as to be within the common and
universal experience Of mankind the court
may not instruct the jury that he was neg
ligent as a matter of law.
TOC0I ~ -aN-a ~ ~
from Douglas. Judgment. Albert, c. Dlvi-
/ on the facts stated, held that an at
torney's claim for services was barred by
the statute of limitations.
q An attorney-at-law, having a lien on a
revive such Judgment, and is entitled to a
revivor thereof in his own name to the ex-
tent of his lien.
8 That the court in such proceedings.
and against the judgment debtor for the
amount Of the lien. instead of entering an
order OF revivor in the name of the attor-
ney TO that extent. is without prejudice to
4. The commencement Of proceedings, Of
which the judgment debtor has notice, to
enforce such lien, while a sufficient amount
of the judgment remains unpaid to cover II,
is sufticient notice of the lien to the Judg-
12e4s. Omaha Street Railway Company
against Boeson' Error from Douglas Re-
Versedi iud Barnes' S Gi D bdt sic ro NO : = on 40
N6N 80 " ~ Oi. ~
count Of the number Of instructions given
to the jury by the trial court. unless It
clearly appears that the party complain
ing is prejudiced thereby.
2. The giving of an instruction which
places the burden Of proof to establish
ings on the wrong party, Is reversible error.
g 1t is error to give. the jury instructions
which contain inconsistent and conflicting
paragraphs relating to the burden Of proof.
1911. Montpelier Savings Bank and
Trust Company against Follett. Appeal
from Adams. Affirmed. Hastings, c.. Divi-
i. To entitle a mortgage. who has taken
a judgment to foreclose. IL is only neces-
sary that the Judgment and a return OF
execution as required by section SOL be set
out. 1t is not necessary In the petition to
state the non-existence Of other proceed
mgs to enforce the judgment.
2. Where a judgment has been tran
scripted to another county. issuance and
hcient compliance with the requirements Of
section SOL OF the code, unless II af1rma-
lively appears that the defendant did not
9. An oral agreement between the owner
of the fee and q MORTGAGE of real estate
that the latter hal accept a deed from the
of the Indebtedness secured by the mort
gage, is within the statute OF frauds and
In the absence OF facts to take II out of the
statute is not enforcible.
1915. Riff against Riibe. Error from
Cedar. Reversed. Ames, c. Division No. 3.
1. The objection that a contract sued
because not in writing may be availed of
by a general denial In the answer.
2. In an action to recover for personal
services under a contract void because not
In writing and not to be performed within
fhst y the wage m ss s agreed 10 upon I%S1rf By the 2 ToiS
contract may be regarded as establishing
the rate of the plaintiffs compensation.
1910, Omaha Bridge and Terminal Rail
from Douglas. Judgment. Hastings, G.
Division No. 1.
estate in land places on 1t, with the knowl-
edge and consent of the owner, an en-
bankment, riprapping, ties and. rails and
maintains and uses such track for its own
purposes without objection from the owner,
such track remains the property Of the rail-
ment to the contrary and of any Intention
on its part to make such track appurtenant
to the real estate.
ment by the licensor that the track shall
remain the property OF the railway COM
RFSnYf ISL |; Il iH z! ". R s1SSc sSsl v Johnson 100
3. Where the railway company before
constructing its track has settled a dis
pute as to the boundaries with the owner
Of the land, by the terms of which settle
ment deeds are to be made by each party
to the other of their respective holdings
after the construction Of the track, and by
its terms conveys the land and all ap-
p~urtenances thereto belonging" will not
prevent the railway company or its gran
tees from showing, as against the owner
and his grantees with notice, the true STATE
Of the title, when the track was built, MOI
will such deed carry the ownership Of the
tracks, they not being expressly mentioned
and not being leRolly appurtenant to the
owners e5tate.
4. In condemnation proceedings by the
grantee railway company to obtain q
Tisht-of-way over the land the value OF the
track should not be added to the owner'I
damages for the taking Of the land, the
railway company having remained con,
ttnuously in possession since the FIRST con,
struction of the track by itself and ia
grantor.
1s740, First National Bank of Columbus
against State eX rel O'Brien. Error from
No. 2.
An assignment OF salary or fees OF a pub
lie officer to be earned In the future is con
trary to public policy and void.
1919. Diedrichs against Diedrichs. ErroI
from Lincoln. Affirmed. Dune, c. Divi
sion No. 3.
!. In an action brought by the wife foi
a divorce on the ground OF cruelty a de
murrer to the petition on the ground tina
II shows conformation Of the onense charged
will not be sustained unless the statement
OF the petition plainly show acts and con
duct on the part of the wife amounting 4
conformation. Generally the question o.
condonation in such cases should be trie'
on the evidence as an issue OF fact.
2. A supplemental petition was filed b!
the plaintin and q copy thereof served OF
the attorney for the defendant som
months prior to the trial OF the case. Tn
supplemental petition was stricken from
the files for the reason that no motto
thereof was given the defendant and IN
same was filed without leave OF court. I'm
nnadfa taIy tbaraaftar the niaintid WAS giVpl