Omaha daily bee., 1905-12-09

illustrate: On one occasion 1 sought to
ascertain what stock one of the sureties
had in a certain large corporation doing
business in Omaha. A representative OF
that corporation appeared in court in re.
Spouse to an order to do so. 1 asked him
whether or not this surety owned any stock
in the corporation which he represented. He
answered no. When I sought to inquire
further, being convinced that the statement
was not correct, was stopped by the court
and told that l was bound by the answer
and could make no further investigation in
the matter, Many times the trial judge on
whose docket the case was for time re-
fused to enforce the plain letter of the
statute commanding him TO advance tho
case for trial You have not forgotten, am
sure. that three judges of the Lancaster
county district court, sitting en- banc, en-
Joined me from trying the case according to
any principle, new or old, and that the only
way in which could get trial OF it was
| by disobeying the Injunction. This did, as
thought It was my duty to do. and
thereby took my chances of disbarment, fine
and imprisonment for contempt. In view
of this what little hope would there be Of
, my being able to have the courts make a
new application of equitable principles even
| IL were entitled to IT, which 1 was not
Another and stronger reason, perhaps,
why an injunction could not be obtained is
| that bond would have TO be given by the
state. This bond would have to be in the
sum OF 100000 or 100000 probably. Without
such bond the injunction would be inef-
| fective. The legislature made no provision
for such a bond. How could have procured
one? It was absolutely impossible
| But suppose had secured the injunction.
The result of the litigation would be pre-
cisely the same as it is. Obtaining an in
junction eight years ago would not have
prevented the decision the supreme court
has just rendered in favor OF the bondsmcn
The bondsmen having won, the injunction
would necessarily be dissolved. and then
the sureties would have a right of action
against the state upon the injunction bond
for their damages. Consequently, instead
of the state collecting from the bondsmer
10000 or $4,000. the bondsmen would be
suing the state for perhaps that amount
with a fair chance of recovery.
Another fact which you seem to overlook
During my incumbency of the ONCE of at.
torney general, the district court OF Doug
las county Judge Fawcett presiding rem.
dered a judgment against BARLEY and bis
sureties for $4,000. The sureties took the
case to the supreme court, where the rul
lngs of the lower court were sustained Il
every particular except one, as appear
from the report of the case in So Neb.. 40
The bond upon which the lower court wa
reversed affected $4,000 Of the amount, blu
did not AFFECT In any particular whateve
| the balance. The facts and the law will
respect to that balance were established b!
that judgment beyond the peradventure of
doubt, and thereby the state was given tn
absolute right then and here TO a judgmep
for at least the amount of that balance. Q
about 100000. principal and interest. Tn
case came back to the district court 70
trial Before IL reached there my term .
office expired and I gave way to my sue
cessor. .'' ,.-...
In view Of the foregoing I am entirel
willing to leave IT to your readers as Z
whether or not I was guilty of any neglect
gross or otherwise. in the prosecution o
this case. c. ]. SMYTH.