Omaha daily bee., 1908-10-31

patient cured Of an injury from which Il
was claimed his death resulted.
3. Error is not committed in permitting a
hypothetical question which fairly reflects
the case as made by the plaintiff because
other facts afterwards established by the
defendants evidence are not Included in
the question. The fact that the defendants
evidence is on file in the form OF a depo-
sition does not alter the rule.
T. Whether the death OF a person whose
life vas Insured against death by accident
was caused by an admitted accident or re-
suited from some other cause is a question
Tor the jury unless the proofs as to such
cause OF death are so convincing that from
them all reasonable men in the fair eNer-
else Of their Judgment would adopt the
same conclusion.
8. Where a person accidentally injured is
insured against accident under a policy
which provides for the payment of a sum
named in case death results solely from
such injury within ninety days ali morbid
changes I'm the exercise OK vital functions
or the texture of bodily organs which re-
suit from or are induced by such injury,
should be regarded as the effect thereof
and not as Independent causes: and when
death results from such morbid changes
IL is caused by such accident within the
meaning Of such policy.
6. Where a person after recovery from an
accidental injury succumbs to y disease
which would not have been fatal but for
the lowered vitality following such injury,
the disease. and not the lowered vitality,
Is the cause Of death.
Ap@oo 1AbEbh aBdAllCA CtAobils ADIfhl
from Perkins. Affirmed. Fawcett. c. Di-
vision No, 2.
/. Where the plaintiff in a foreclosure
suit offers In his petition to pay the amount
OF a supposed tax lien on the property COW
cred by his mortgage, and in the prayer OF
his petition prays the right to make such
payment, and the court so DEGREES, he can
not complain of such decree, even though
1t appears from the evidence on the trial
that he was under no legal obligation to
make such payment.
2 Where plaintiff in an aDp1iraffpn for tbp
appointment of a receiver, serves notice
upon the parties interested that such appli-
cation will be presented to the court, or to
q judge in vacation, on a certain day and
hour and at a designated place, the court
or judge Is without power, except by stlpu-
lation or appearance of the parties, TO hear
such application at an earlier date than
that specified in such notice.
3, And where the record on its face shows
that the court or judge acted on such APP
plication one day earlier than the date
specified in such notice, and appointed a
receiver as requested in said application
without any appearance or consent by the
adverse party, such appointment is void
and the judgment of the court or Judge
making the same may be attacked c~ollater-
ally.
4. Where the record OF a case foreclosing
a tax lien shows upon it's face that the
only service attempted to be made upon a
defendant corporation was upon a stranger
to such corporation, as receiver thereof,
when no receiver had N fact ever been APP
pointed for such corporation, a judgmen
rendered in such case against such corpora
ton is void and may be attacked collater-
ally by such corporation or its assigns.
b. In a foreclosure proceeding by H., the
holder of a tax sale certificate, against the
M. s. bank, MORTGAGE. and s., the owner
of the land, 1t was alleged that 'the de-
PENDANT Is or claims to be the owner of
said real estate, that defendant M. S. bank
and all of the defendants herein nave or
claim to have some right, title, lien or in
terest in said land, either by deed, judg-
ment, mortgage or mechanics lien, or other
wise, the exact nature and extent of which
is to plaintiff unknown, but plaintiff AYERS
that If said defendants or any or either of
them have any right, title, lien or interest
In or against said real estate. or any part
thereof, that the same is junior, inferior
and subject to the lien Of the plaintiff
herein set forth" The defendants all hav-
ing made default, a decree of foreclosure
was entered in which 1t was adjudged that
the M. s. bank "be foreclosed of all equity
of redemption or other interest in said
premises" In a subsequent action by an
assignee OF the NJ. 8. bank to foreclose his
mortgage, held, that the former decree
cannot be pleaded by 8. as a bar. Lincoln
National Bank against Virgin, 36 Neb. 1876.
6. A purchase of land, at sheriff's sale in
a suit foreclosing a tax lien, made by one
whose duty it was to pay the taxes, operates
as paymen only. He can acquire no rights
the duty which he owed to such party.
Concordia Loan and Trust Company against
Parrotte, 62 Neb. 629. 632 Pitman against
Boner, 116 N. w. IT'S.
1926. Home Savings Bank against Shall
lenberger. Appeal from Harlan. Reversed
and remanded. Calklns, c. Division No. 2.
l. The extension of time of payment to a
principal debtor is a sufficient considera-
ton to support a new contract of guaranty
made after the date of the renewal of such
obligation, especially when the guarantOr at
the time of making such guaranty is still
liable, as guarantor for the payment of the
debt renewed.
2. A third party guaranteeing payment to
the payee of a promissory note is not en-
titled upon payment OF such note by him,
to have the same delivered with a guaranty
of the payee made to any endorsee of the
note, intact.
1887. Ault against Nebraska Telephone
Company. Appeal from Saunders. AT
firmed, Duffie, c. Division No. /.
1. Two gangs Of workers were engaged
in the construction Of a telephone line,
each under a different foreman; the first
gang digging the holes and setting the
poles therein, the second gang stringinR
wires on the poles. Held, that the parties
employed I'm such separate employment
We're not fellow servants.
2. A telephone company gave each of its
linemen a printed notice. setting forth their
duties and stating among other things
that 'All linemen and other employees ot
the company whose duties require them n
work upon or about poles, are specially
charged with the duty of inspecting the i'm
plements with which they work. all poles
cross-arms and wires, and must know thai
they are safe TO work with or upon, before
climbing or going upon such poles and