Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1905-12-26

the authority OF the agent contained In /
such written authority, and a contract be |
You'd the scope OF sucn authority, as thus |
limited OF restricted, IS not binding on the |
principal
= A writing that neither names the par !
ties 20 a contract nor describes them in |
such way tnst they may be Identified. IS |
not sufficient a note or memorandum |
under tho statute OF frauds
14OOl Houfek against Held 4 co. Error
from CoifaX Affirmed. Olham, I. Divis- !
l. Record OF a certificate provided for
in section 800, Cobbeys Annotated stat
utes is not the only evidence by which /
tablished. notwithstanding chat statute,
partnership may BE- proved By any
method permissible before the statute was
Neb., $50, followed and approved
l4lO. kidder against Maynard. Error
from Dodge. Affirmed. Albert -. Divis-
i. A new trial will not be granted
merely to allow party to o1er newly
established in his favor, or on an imma-
ii5i2 Douglas against Smith. Error
from Richardson Affirmed. Ames, Z.
i. the defense of res judicata Is only
available as to matters actually IN issue
and determined in the former suit.
verdict upon conflicting evidence
will not be disturbed except Tor specific
error occurring at the trial.
3. The statement by a juror IN the Jury
room Of his personal knowledge OF a fact
not In dispute and not material TO the
issues Is not misconduct requiring a new
trial.
i4ii6. Titterington against state. Error
from Lincoln. Reversed and rem1nded
/. An Instruction which informs the jury
that II they believe that witness has
willfully and corruptly testified falsely AS
to any material fact, they are at liberty
to reject all or any portion of the tesu-
mony OF such witness, correctly states the
rule TO be applied In such cases.
2 Where, in proper case, such an in
struction is rendered II is error tor the
court to refuse to give II because 1t does
not contain the qualifying words, unless
corroborated by other competent Iroof.'
g. The rule announced in Denney against
Stout, 50 Neb., 73l, insofar as 1t conflicts
with this opinion Is disapproN cd.
1llS2. Powers against state. Error from
Hamilton. Reversed and remanded. Dune,
i. Misconduct Of the county attorney
| in the argument of a case will work re-
versal where il is reasonably apparent
| that such misconduct worked prejudice TO
| the defendant.
2. A witness was present and heard
| statements made by the defendant, wnich
| the state offered admissions OF CUNT.
These admissions the court refused TO al
| low In evidence for the reason mat they
| appeared to be made while under lear OF
bodily harm. The witness referred To tes-
tited at the preliminary hearing and there
stated the admission of the defendant as
| he understood ana remembered 1t. In pri-
| vate conversation between the defendant
| and the witness previous to the trial IN
| TIE ulSlIlCl COURT lut ueltltdhN t4SPNNNN
| the correctness OF the testimony 81 the
| witness given at the preliminary eNamina-
! ton ana claimed that he had incorrectly
| quoted his language The witness replleu
| that his claimed admission was In the
| language given by him at the preliminary
| hearing, at the same time repeating It,.
| This conversation was admitted in evil
dence by the court as tending TO snow an
admission of guilt on the part Oh the de-
PENDANT Held; error.
| g. The defendant was on trial for adul-
terry charged to have been committed with
a married woman who was called by the
state as a witness. When interrogated re-
garding her relations with the defendant
she claimed her privilege and refused TO
! testify The county attorney, in his ar
conduct in this respect. asserting that IL
was proof Of her guilt Held, under Si the
, stituted prejudicial error.
4. 1t is error for the judge to absent
! himself from the court room out OF the
sight and hearing of the parties during
the argument of case unless by consent
and agreement Of the parties in Tbe i6S
ment rendered in the action. $500,
14lSS Lowe against Prospect Hill Gene
terry Association. Appeal, Douglas. Re
versed and dismissed. Holcomb, c. j.
/. The district court in the exercise OF
Its general equity pG%er to rs o Ts
cate an order for a perpetual injunction
which it has allowed after the term at
cause upon which It was granted has been
removed and the danger of invading the
rights of the. plaintiff no, longer exist.
a. The exercise of such jurisdiction does
| not rest on the statutory provisions for
modifying or vacating judgments or ma
orders in the same court after the term
at which such judgment or Anal order was
2 Where facts have arisen since fina
order was entered allowing perpetua
| Injunction, of such a nature that 1t Il
, clear the decree ought not TO be executed
| ! relief against It may be given in a sum
| mary proceeding on motion to modify OIL
, vacate the same provided the facts are
a. Whether proceedings OF a summary
i character are permissible for such purpose
or whether more formal proceedings arr
not required when there is substantial
controversy regarding the facts on which
the proposed action is to be predicated
quaere.
2 g. A Judgment on the merits in the trial o
a civil action constitutes an effective ba
and estoppel in subsequent action upoi
the same claim or demand not only as {
. every matter offered and received to sus
I tain or defeat the claim or demand blu
= also as to any other admissible matte
= which might have been offered for sue
a. When a question in controversy ha
!. been once finally decided, IL becomes tn
= law of the case and is binding on the par
y ties and those claiming under or throus
!, them in all subsequent stages of the lit
u cation.
T. Where in an action in which the oh
!; ject is TO enjoin the defendant from usin
d a certain tract of land for the intermer
OF dead bodies one OF the vital issues
u whether such land is part of an estat
i lished cemetery and II II Is In such action de
termined that II is not resolution after
q wards passed by the city council in whic
n such grounds are situated to the effect tina
J. such disputed ground is part of the cen
u etery and is not therefore taxable, will NJ
IL affect the question as ltigated and detern
ined and will AFFORD no sufficient basis fc
II a modification or vacation of an order fC
e a perpetual injunction restraining the dt
Sc PENDANTS from the use of such ground f.
I, burial purposes.
" 5. Evidence examined nd IL is found this
re there has been no material change sine
IS the entry OF the final order allowing a PEI
. petual injunction In respect of the wells c
L the premises of the plaintiffs, and Il
IN pollution OF the underground waters fro
l. which such wells are supplied by reason
E. the decomposition Of dead bodies il interre
n in the tract OF land involved in the col
| troversy and that no such change Ina
Dr. arisen since the rendition Of the origin
s. decree in the action in respect of such ma
tiers as would justify the modification
= vacation of the order of Injunction there
u allowed.
r action in which a perpetual Injunction is a
!. lowed can not be relitigated on a motion
modify or Vacate the order allowing sue
'e Injunction.
OF !. The cause upon which the order ALLOW
Ut ing a perpetual Injunction against the VI
IL of tract of land for burial purposes
he not removed and the threatened inVasiI
y, Of the plaintiffs rights is not obviated
ed an ordinance Of the city within which sue
or the health commissioner in his disCretii
s. 10 provide rules and grant permits Z
the burial of dead bodies in a different ma
m ner than that ordina rilN obtaining by co