Omaha daily bee., 1903-05-02
SUPREME COURT SYLLABI

1898. Johnson against Winston. Error
from Fillmore. Reversed. Lobingier. c.
Division No. l.
liminary question need not be confined to
the same limits as the answer, but may ex-
tend farther in medals res provided both
relate to the same subject matter.
2. In an action for malpractice In am
putating part of plaintiffs hand and re-
moving the metacarpal bone II is proper to
ask a professional witness for plaintiff, as
a preliminary question:, whether there is
any method of cure without removing the
bone.
8, In such action a surgeon of thirty-hve
years experience who has inspected the
amputated bone may be asked to examine
plaintiffs hand and state what igaments
would need 20 be severed In the operation
without a preliminary showing that the
question can be answered from such in
4. A charge in such an action that de-
PENDANTS are not liable for the conse-
ouences Of the operation II they acted 'in a
Careful and skiiful manner under the be.
lief that 1t was proper" is too broad; the
belief must have been one acquired in the
1871. State Bank of Ceresoo against Belk.
Appeal from Lancaster. Affirmed. Dufie,
g. Division No. 3.
one to reach the equitable assets or prop
erty Of the debtor, on which an execution
at law cannot be levied; the other in aid of
an execu ton at law, as to set aside an In
cumbrance or a transfer of property made
to defraud creditors. In the FIRST class Of
cases the CIeQlIOI HAs dllGk0 anu shON
that he has exhausted his remedy at law,
while in the second 1t is sufficient to show
that his claim has been reduced to tudg-
ment and docketed in the county where the
land lies which he seeks to subject to the
payment of his claim. The equity court In
such, case is merely lending its assistance to
obstruction interposed to the execution OF
it's writ.
Douglas. Reversed. Holcomb, j.
/. A written offer TO allow Judgment 70
be taken against a defendant for a sum
specified made under the provisions OF sec
ton sos of the civil code. TO be available for
the purpose Of the rendiions of a 1udg-
ment on such offer Of compromise, must pc
party making the offer within i've days
from the time OF making the same.
court =; fe erred in 'nS yerruIinE a motion to va
cate a judgment rendered on an offer to
compromise made In pursuance of the pro.
by the record that there was no accept
ance of such offer and no notice OF accept
ance given within the time and manner re-
iz4S7 Mccormick Harvester Manufacture
ing Company against stires: Error from
patrick, c. Division No. J..
/. Under the provisions Of section, eO2, ct
sea-, of the Code OF Civil Procedure a
county court has no power after term. 70
vacate its own Judgment on the ground
that the same is void for want OF tur1solc-
ton over the person OF the detenoenti 80
held not to state a defense TO the answer
OF defendant.
cient TO sustain the judgment:
4. An action for money had ana received
will lie where the defendant has obtained
possession of money which in equity and
good conscience he ought to refund.
1850. Williams against Miles. Appeal
from Richardson. Affirmed. Pound C.
J. Where a will is shown to nave been
made and left in the custody. OF the tesla
tor, IL Il cannot be found after his death
the presumption is that the testator de-
stroyed II amino revocandi.
2. But this is a presumption OF fact only
1t may be overcome by evidence, circum.
stantial or otherwise, to the contrary, ano
declarations of the testator may be shown
for this purpose.
will revoking a former one by implication
such act OF Itself win not operate to revive
4 Whether the former win is revived II
such a case depends upon the Intention OF
the t%estator, which is to be dedueed IRON
s. The term common law OF England,
as used in chapter Xya, Complied statutes
refers 20 that general system OF law whlcf
United States by derivation from England
as distinguished from the Roman or civil
require adherence to the decisions of the
English common law courts prior 10 TN
revolution, In case this court eonsiders SUP
sequent decisions, either in England Of
America, better eNpositions OF the genera
principles Of that system.
g. A subsequent will which has the eff
feet OF revoklng a prior will may be shown
for the purpose OF defeating probate o.
such prior will, although by rea son OF ~
loss or destruction the exact disposition
made therein Cannot be shown and are in
capable OF execution. The revocation vii
be effectual even though in other respects
the will cannot be carried out.
Z. Although the contents OF a lost will
cannot be proved solely by the declara
tions OF the ~testator, such declarations ar
admissible to prove the existence OF tn
will
S. Persons who would take as heirs o.
next OF kin In case OF intestacy are no
disqualified under section 32s, Code Ctvi
Procedure, from testifying as to transae
lions and conversations with the decease'
in a contest over an alleged will. In r
McCoy's will, Neb., followed.
O. In such cases evidence as TO declara
lions OF the testator should be scrutinize
carefully and weighed cautiously.
10. II the instrument is In fact signed, at
tested and subscribed as required by tn
statute, a formal attestation clause Is no
? necessary.
II. Hence the subscribing witnesses TO
lost will may testify that the testato
signed aud the witnessed and subscribe
In the required manner without pToyin