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

l. INC lfE IelaLuIF AAllltON ahNpAAlt N'NAaNs
officers, nor by al act solely tor that pur-
pose extend the terms of such officers.
2. Chapter II Of the laws OF 1875 is uncon-
lar. state ex rel WEIGH against omll.
Original Writ allowed. sedswlck J.
i.so Go6le AGAINST Brenneman Appeal
from Adams. Affirmed. Letton, - DiVis-
ion No. !.
tract Of land claimed as a homestead, the
mortgage debt Is paid by the proceeds
arising from a loan secured by "a new
mortgage on the same land, the interest,"
of the claimant being at all times iess
than x2OJp in value and the homestead Is
sold to third person while thus tnc1 cum
bered, the transcript OF judgment hled
while the first mortgage was IN force
does not become lien upon the premises
France against Hohnbaum. lG2' ~ W. co.
followed.
2 The return Of an officer as to service
Of process may be impeached by eNtrinsic
l40S3. Schickedantz against Rincker. Err
ror from Howard Reversed. Letton, {.
parol agreement between Il land
lord and tenant whose term vas about
to expire that the tenant should -emain
in possession for four months longer fol
lowed by the tenant retaining possession
after his first term begun had ended and
the four months term begun, even though
the amount Of rent to be paid was not
months. and the law implies an agree
ment to pay a reasonable rent for the
I
! 2 A notice served by the landlord after
the making OF such agreement notifying
the tenant that IL he held over his first
term he would be taken as occupying Tor
another year at an increased rent held
imperative to set aside such parol lease.
1904 Rogers against City of Omaha.
| Error from Douglas. Reversed Ames' e.
/. Under the Omaha charter Of 1893
cause OF action upon an award or dam
ages to one whose property was taken
for q public street did not acCure until
the lapse of time reasonably sufficient
for the creation Of special fund for tn"
payment of such damages.
1895 Omaha Feed Company against
Rushforth Error from Merrick Affirmed
Duft1e, G.. Division No. 2.
! for the purpose Of obtaining credit makes
! false representations relating to the
! amount OF his assets, or tho condition OF
! his financial affairs, and the other party,
relying thereon, enters into the agreement
/ to extend credit on the strength OF sucl
representations he may, on discovering
| the fraud, repudiate the agreement and re-
tuse 10 carry 1t INTO effect.
! ?. Where a party. repudiates an agree
J ment to extend credit to another because
| of false and fraudulent representations
made in obtaining It and the agreement
! is then so changed as to eliminate the
provision for credit and to require cash on
( delivery, the second agreement Is not q
mere modification of the first but new
or further consideration is necessary ~
support it. ,-...
| g. Where party to contract inserts
/ provision eNempting him from running be-
cause of condition which may after
7 ward arise, he must, when sued Tor
breach of the contract, plead in defense
the existence OF the condition in order to
| have the advantage thereof.
14O3s. Butler against Bruce CO; FL
! ror, Box Butte. Affirmed. Ames, {. d.
/. when a vendee of personal property
assumes and agrees to pay as the pur-
chase price. or q part OF IT, an indebted
ness of the vendor to a third person. the
creditor may enforce the obligation by a
suit at law against both parties to the
2 A Judgment for the plaintiff rem
dered in the district court on appeal IS
not erroneous because II includes interest
upon the claim sued upon during the time
Of the tendency of the action in that court.
although the Judgment is thereby made to
exceed in amount the jurisdiction of the
court from which the appeal was taken.
1904. I,eese against Courier Printing and
Publishing Co. Error, Lancaster. Affirmed
Jackson, g. Division No. 2.
The taking of fees by justice of the
peace for services performed by him and
for which no fee is allowable is actionable
under the provisions of section "a, chap
ter xviii. Compiled Statutes. 1903
1908. ThurstOn County against Mcln.
tyre. Error, Thurston Affirmed. Oldham
c. Division No. |.
An action to recover a money Judgment
upon county warrant may be maintaineo
when the money for the payment OF sucf
warrant has been collected and wrongfully
applied by the county authorities to tho
county Ayres against County OF Thurston
. d Neb.. 20, followed and approved.
| 14045. Stevens a-linst Naylor. Appeal
Custer. Reversed and remanded. Ames
c. Division No ].
be published for at least thirty days mex
! preceding the date Of sale and must APP
pear in all the regular issues OF the pape
, 14O5i Lucas against County Recorder o
Cass County Appeal, Cass. Affirmed. Al
bert, G. Division No.
rant the decree OF the trial court.
p. sale is transmutation of propert!
2 or right from one person TO another il
! consideration of sum OF money. as OPP
4 posed to barriers, exchanges and gifts.
2 3. A written contract between the owne
= OF real estate and real estate broker 70
. the sale" Of property does not contem
I plate an exchange thereof for other prop
r erty.
n l. A subsequent oral contract, super
o seding or modifying on which the statut
!. of frauds requires to be in writing, Wi
4 be upheld if executed.
r 5. Under the evidence held, that rea
estate broker has no Just cause of com
5 commission for services in the eXchang
: 14t6s Lewis against Morearty. Error
h From Douglas. Affirmed. Letton c. ID
l. vision Mol.
!. objections to the appraisal of propert
y sold at a judicial sale should be filed be
& fore the sale, except where fraud in tn
II appraisement is charged
Is 1865. Walsh against Lunney. Erro1
!
= vision No. l.
r. /. Before one contract is merged in al
n other and superseded thereby the last cor
Il tract must be between the same partie
\ as to the first. and must embrace the SAN
1t subject matter, and must have been so II
l. tended by the parties.
'r 2. Evidence examined and held suff1cieT
,r to sustain the judgment.
= 1867. McIntire against McIntire Appea
'r From Sass: Affirmed Jackson C. d
1t The plaintiff. soldiers widow,
e years of age, was the owner OF sma
r cottage and two lots in the village
m Louisville. She had no other property an
lc no means of support except a widows pei
re sion. She conveyed the property 10 h,
m son and daughter-in-law upon an expires
Of promise of support. Within short tin
ID of the conveyance she was elected fro
n their home and compelled to seek suppO
as elsewhere. Held that the decree OF Il
al district court cancelling the conveyant
/ should be affirmed.
or l4O5S Austin against Brown. Revers,
in and remanded with directions. Duffie,
Division No. ?
he AS between the parties thereto,
u where purcha sers without notice are, n
IN corrected to cover the premises intend,
TO be conveyed.
p'- 1869 Beckwith against Dierks Lumb
Sc and Coal company. Error. From Custe
is Affirmed. Dutfe Q. Division No. ?.
pm /. A Judgment will not be reversed 4
~ error OF law occurring al the trial, unle
IN il is alleged In the petition in error al
es shown by the record that the court err,
IN in overruling the motion for a new triS
or James against Higginbotham, 90 Nebrask
n 203.
v o party who fails TO object to an /