Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-05-12


from Lancaster county. Reversed and re-
manded. oldham G. Division No. I.
J. False representations as the basis OF
an action, whether Tor damages or for the
tesctssion of a contract, are such only az
IN some manner actually mislead the party
10 his damage. American Building and
Loan Association against Bear. Is Neb..
4b5, followed and approved
Action Of the trial court in excluding
testimony offered by the defendant eN-
amined and held preiudicial
3. Instructions examined and held
lliSs. Topnr against Richardson. Appeal
from kearney county Affirmed. Duifie,
lnS7. Joplin against Richardson. Appeal
from kearney county Affirmed. DUNE,
l.. Service by publication was attempted
on three defendants. Two OF the de-
PENDANTS were residents of the state and
the third nonresident had died pre-
Niously to the publication Of the notice.
Held that a decree entered on such at
tempted service was void.
2. There can be no merger unless a
greater and less estate meet in the same
person holding in the same right nor where
nteryenins rights or estates interfere. nor
where the intention TO keep the estate dis
tlnct may be inferred or has been eX-
3. Proof Of the statute Of sister state
and Of a judicial record appointing trustees
examined and held sufficient.
T. The title conveyed under a tax sale
/ is not deriVatiVe, but a new title, and the
purchaser, il his deed is valid takes free
from any incumbrance claims or equities
.. One purchasing at judicial sale is
estopped from questioning the validity OF
an incumbranoe shown by the appraise-
! ment and deducted from the appraised
value of the estate sold, where he makes
no objection to the validity Of the in
cumbrarce prior 10 the sale.
1882. Shuman against Heater. Appeal
from Lancaster county. Affirmed. Albert,
G. Division No. 2.
/ sary to constitute warranty as to the
quality or Soundness of chattels; any form
Of words whereby vendor, for the purpose
o. inducing sale, makes affirmation pend
ing the negotiations. that the subject
matter Of that sale is Of a particular quail
| ity or fitness, will constitute a warranty
| when relied upon by the purchaser.
| 3 Evidence examined and held sufici-
ent to show: ~ That the defendant sold a
| team to the PLANTING 90 That he warranted
the team to be sound; 90 A breach of such
| warranty.
Nelson. Error Custer county Affirmed.
Oldham, G. Division No. l.
!. Evidence examined and held sufficient
to sustain the judgment of the district
2. Instructions examined and held not
1Iis7. Cuatt against Ross. Error Buffalo
county. Affirmed. Ames, G. Division
| When the evidence is insufficient to sup
port an alleged counterclaim the defendant
| can not complain of errors in the giving
or refusing of instructions having refer
ence TO II.
1921. Clark & Leonard Investment COM
pany against Lindgren. Appeal from
Hitchcock county. Affirmed. Ames, c.
l. An objection that an application for
| writ of assistance to put purchaser at
a judicial sale into possession has been too
long delayed. is addressed to the sound dis
erection of the court and where II is not
made to appear that new rights have in
| tervened or that the defendants have
been prejudiced by the delay, such an OBJ
lection will not be upheld.
| ?. The grantee of a purchaser at jul
II fu mt
! to prosecute an application for writ of
| assistance TO put him into possession and
whether he snail be permitted Si SO to DO 90, or
| cumstances and resting largely in the dis
erection OF the court.
14203. Baker Furniture Co. against Hall.
Error, Douglas county Affirmed. Epper-
| son, c. Division No. J.
corporation organized for the sole pur-
| ship firm, which takes over to itself the
| ownership and control Of the assets thereof
| thereby assumes the debts OF such firm to
! the extent of the property so received.
14441. O'Neill & Baldwin against State
Error, Boone county. Reversed and re-
"' i. Where, in q prosecution for a viola
ton Of the provisions Of section go chap
ter so Of the compiled statutes en-
ls found and seized in the posses
sion OF the accused, or is shown TO
have been in his possession ana 9, Ike Kept 6o 6y
! petent evidence. the statutes makes suoh
| possession, when not satisfactorily eN-
! such possession and keeping may be SUM-
| cient to sustain conviction. Peterson
against state. So NePr; 26l osso.s,o, 30
! intoxicating liquor, however, that raises
! the presumption that II was kept Tor an
unlawful purpose and when the evidence
| on the part of the prosecution shows that
| the liquor I'm question was not kept by the
accused and that his possession OF or con.
nection with II was of such nature that
| ne could not have sold or disposed Of II
/ unlawfuly, that such liquor, when selzed'
! was not in his possession. but was right
| fully in the possession of another, such
evidence alone will not sustain a conVic-
ton. co. ,,...
Pierce. Reversed and a new trial ordered
/ The I'll; rule is settled in this state that in
cases OF rape, unless the testimony Of the
| prosecutrix is corroborated on material
| points. where the accused testihes as a
witness on t ms own slone IS not sufcent
to warrant a conviction. Matthew's against
State, 10 Nebr., $50.
2 Evidence examined and held not sum
Client to sustain the verdict OF conviction.
1881 simmons against Kelsey. Appeal,
Johnson. Afirmed Albert, c. Division
/ A plea in abatement was stricken on
plaintiffs motion; the defendants then in
| corporated the same matter with plea
| to the merits in the answer and fully ltl-
gated such matter. Held: That they were
not preJudiced by the ruling on the motion
| to strike.
q Where the mental capacity OF the plain
| tin TO maintain the suit Is In issue her
disposition, aside from the question OF her
mental integrity, is not involved and Is not
a subject OF expert investigation.
g. Where the plaintiff reasonably under
stands the nature and purpose OF her suit,
the effect of her acts with reference
| thereto, and has the will TO decide for
| herself whether it shall be brought and
prosecuted she has suficient mental ca
pacity to maintain IL.
a. The dismissal by q child OF proceed
| ings instituted by her for the appointment
of a guardian for her mother on the ground
| OF the incompetency of the latter, Is not a
| valid consideration for a promise made by
4 the mother TO such child.
s. Public policy will not permit one who
| institutes such proceedings to make the
prosecution or the abandonment thereof a
/ source OF profit TO herself.
s. Evidence examined and held SUFFICIENT
to sustain q finding that plaintiffs assent
| to a contract was obtained by undue means
and without consideration.
1851. Chicago, ST. Paul, Minneapolis &
Omaha Railway Company against Mchan-
! igal Error from Douglas county. On re-
! hearing, reversed and remanded. Sedg-
/. Two Inconsistent findings OF a jury
/ - ~ !