Omaha daily bee., 1905-07-31
SUPREME COURT srlllBI

|
| the case is tried second time on the same
| issues made by the pleadlngs on the first
! trial. this court, on a second appeal Will
examine and pass upon the correctness OF
| the instructions OF the trial court in sub
| mitting to the jury the issues which the
| court was directed to try and determine,
Notwithstanding a claim made on behalf OF
| the defendant In error that error In such
| Instructions is without prejudice TO the
/ plaintiff in error because Of a former ad-
| judication OF such issues asserted by the
| defendant in error.
| the defendant Of settlement made be-
! tween himself and the defendants husband,
ana produced competent evidence tending
| structed the jury to the effect that II IL
found that the defendant had ratified the
! settlement IL should find for the plaintiff,
/ but failed to state what acts on the part Of
the plaintiff would amount to n ratification
| and refused a proper instruction covering
! error.
8. Where the court and the parties to the
action proceed in the trial OF case on the
| theory that the pleadings present certain
material issue not jurisdictional in Its ma
tpre. this court will not on appeal examine
1889 First National Bank Of Platts-
mouth against Gibson, Error from Sass.
! Reversed and dismissed. Betton, G. Dtvt-
| sion No. l. Sedgwick, j., not sitting.
!: The plea Of res adiudicata applies not
only to the points upon which the court was
required by the parties to pronounce
| Judgment, but to every point which prop
erly belonged to the subject matter of litl-
cation and which the parties exercising rea-
sonable diligence might have brought for
| ward at that time. This rule Is not In
flexible and may yield in cases where
! good and valid reason or excuse for the
| failure to allege the facts and seek relief
| IN the former action is shown, but In the
! instant case such excuse Is neither pleaded
| nor proved.
1926. State ex rel Polk County against
Galusha; Original. Writ of mandamus al
/. When il is obvious that portions of an
act OF the legislature were the principal, II
not the sole indgcement for the passage OF
constitutional because in conflict with the
paramount law. the act will be declared
2, The provision Of section thirteen qS
| article eighteen (xviii, of the constitution
wherein Il is provided: The general cleo
tion Of this state shall be held on Tuesday
succeeding the first Monday Of November
| of each year except the first general cleo
TUESDAY I'm in October, iS75, S5? % Construed str and
held: That 1t is not of itself an imperative
command that general elections shall be
| held annually at the time stated. Whether
annual elections are required depends upon
the Offices created by the fundamental law
an election must be held to fiji i such offices
3. BY the provisions of the constitution,
sections four ~, ten qO). fifteen q5l
six tvD and sections thirteen Q3) and
twenty l9Q of article eighteen (xviiD.
judges of the supreme, district and county
| courts, and regents OF the university, whose
offices are created thereby, it is declared
! shall be elected at the first general election
held in 1870 The terms of these several
offices are hxed at six, four and two years,
| respectively, and the terms of Office begin
Sl Nne HIst thursday aIIer the nTst 1ues-
day in January next succeeding their cleo
tion. Their successors in office II Is pro-
vided, shall thereafter be elected at the gem
eral election next preceding the time OF the
termination of their respective terms of
office Held, that these several provisions
when construed together fix the terms cf
. | Office and the time of the hpRinnfnR nd
! termination of such terms and the time of
the first election, and that thereafter at the
| the termination of each and every subse-
quent term of Office as they shall follow
each other In succession, successor shall
| provide for regular succession of and con-
tinuity In such terms Of office, the force
and effect of which are to make it manda-
tory that a general election shall be held
In each of the odd numbered years.
g. ordinarily the word or words term"
to the tenure of office means fixed and
definite period of time.
stitntion Declares Ai 'io efcess ime pTovided f9n
for in this article shall hold their Offices un-
I'll their successors shall be qualified. -
Held. that this provision cannot properly
be construed to mean that the legal terms
of office of the officers provided for in said
article in the sense in which used in ref
erence to the tenure of office, shall con
sist OF the fixed and definite periods
therein mentioned and In addition thereto
the indetermnate period which an incum-
bent may hold after the expiration of his
hxed term and until successor shall be
8. Where by the fundamental law certain
offices are created the terms of office OF
whlch are hNed at certain definite periods
of time and the beginning and termination
thereof prescribed as well as the time for
the election Of successor, the Legislature
Is without authority to postpone the elec-
tion of such successors until the succeed
ing general election held in the next year
and to extend the term of office OF the
incumbents during the intervening time
and to provide for an election in a different
year in which to elect such successors and
different time for the beginning of sucf
terms of Office.
c. Provisions found in the schedule of the
constitution are not in all instances to
be construed as of a temporary character
The language used should be given its
ordinary meaning and whether II is in
tended TO be OF a temporary or permanent
character must be determined from the
purpose of the enactment and the object
sought to be accomplished thereby. The
, true meaning of the law is discovered by
considering the reason and spirit of IL OF
the cause which moved the law making
T. Courts will give weighty consideration
to the Legislative construction of the con,
stitution when iepislatio~ is had rega rdinp
subjects of a political mature. But wher
such construction clearly appears TO be un.
. warranted II Will not be followed
(a) The provisions of the biennial election
; law. II. r. 235, Session Laws 1905 the act
under conslderatlon, are found to be IN
conflict with the paramount law relative tc
the election of judicial officers and regents
of the university. and the time thereof anC
OF their terms of office, and for such rea
/ sons the act is held to be imperative and
void.
1851 Shreck against Hanlon. Appeal from
Clay. Affirmed. Oldham. G. Division No 1
1. A trustee in bankruptcy acting for the
creditors Of the bankrupt, may maintaIr
an action in the nature OF a creditors bill
to set aside a fraudulent conveyance with
out reducing the claims OF the creditors tC
Judgment.
2. The question Of fraud in conveyance
4 made prior to July 1, 1898 could not be de
5 lermined In hearing on application by
bankrupt for his discharge in the bank
: | ruEt proceedings. Paxton against Scott
3 Mel. 81, n. w. Gil, followed and approved
I 3. Evidence examined and held sufhcien
to support the judgment.
lSf2 Nebraska-Moline PloW Company
afainst Blackburn. Error, from Scotti
I'll F un. Reversed and remanded Ames
* g. Division No. l. sedgwick, j., not sit
= / One is not bona-hde purchaser 70
Q value until he has actually paid the pur
r chase price or become irrevocably boun,
. for It's payment.
trustee in bankruptcy succeeds L
8 the bankrupts title to chooses In action
e subject to any defense, abatement or coun
. ter claim to which they would have beel
liable in the hands OF the latter.
r 1879. Hanson against Nathan Error, from
q Cunning. Affirmed Dune c. Division No
. @ Sedgwick, j., not sitting.
= The rule Is we'll settled that the suprem
4 court will not review judgment Of the dis
q trict court on petition in error as to ct