Omaha daily bee., 1908-12-24

i~S47-Campbell against Youngson. Appeal,
kearney, On rehearing former 1udgmon
adhered to. Barnes, {. J. Reese, j. dis
i~5Sso-Everett against Farmers and Mer.
chants bank OF ELM Creek. Appeal, Buff
falo. on motion for rehearing, former
opinion modified Judgment Of district court
reversed and cause remanded for further
i5Si-Kemp against Kemp. Appeal Col
fax. Affirmed. Fawcett, c. Division
/. Evidence examined and set out in the
opinion, held ample to sustain the rndihbs
and Judgment OF the district cGHTt D,.aI
Dawes. Reversed and remanded- Epper-
son. c. l. Division No. l..
1. In an action for the conversion Of the
proceeds Of a bank check when the CONVEX
sion Is denied It Is error 10 refuse a jury
iSsS9-Bressler against Wayne county.
Appeal, Wayne. Affirmed. Epperson, C.
Division No. /.
after IL the S,'t dEp,r SqSss oDSf S SisSSy d sy.nI from
tho adjournment OF the terms OF court
sine die, to extend the time for settling a
q The owner OF shares OF stock of a
domestic inyestment COMPANY n,D hot NE
provisions OF section 1921 OF ennotated
statutes, 1907 which provides' %Evsry per
credits. bonds or stocks. shares of stock OF
Joint stock or other companies, when the
ss5pseS ,n s' tSis 81 at snSS" such shares OF stock
are 10 be assessed under the provisions of
section ioSS5' which ts1.S expressly pre- = PfHy,de sy eh sn
0t itSs4orF Fl sHo iSSaPRionsi Bank of ElEin
against Adams. Appeal, Antelope. Re
versed and remanded. Calkins, c. pi'
Vi y In the absence Of any direct evidence
to the contrary, possession is prinaa facie
~presumptive evidence of ownership; Inut
when direct evidence is offered; the fact
acter and is to be considered only In con,
nectlon with the other facts at It's real
!. Under the practice established by the
statute Of 1907. where the printed priei OF
the appellant particularly sets out the error
be erroneous. such error will not be DIS
regarded because in the assignment OF err
the only specification Of such error was
that made to a group of several instruc-
tions Of which this was one nit.
against Adams. Appeal from AnrteioRpee.
Reversed and remanded' Carkins' Z. Dr.
Vi iSsas. Without against Showers. Appeal
from Hayes. Affirmed. Good o. Division
/. Parties to a Judgment are not bound
nv II in a subsequent action, unless they
were adverse parties In the original action.
against W., the maker. and s. who as;
sumed and agreed to pay. the note, ana
where no issue Is Joined as between ". snd
ment, the rendition of a Judgment OF dis.
missal as 10 s. will not In a subsequent
ages for a breach Of the contract constitute
a defense. e
g.. An agreement to pay an existing note
! and mortgage as part of the consideration
for a conveyance OF the mortgaged prem
ises may be established by parole testl-
/. A defendant cannot avail himself of
an affirmative defense unless such defense
is pleaded and sustained by sufficient evil
I6S5O. Mathews against Hedlund. Appeal
from Lancaster. Affirmed. Rose. j., not
i. An order made by the State Board of
Health under sections 9soO. et seq. snno-
tated statutes, 1899: revolving, Tor cause; the
surgery and Obstetrics In Nebraska, may be
reviewed in the district court by error pro
Munk against Frink, 20 Neb.. 172. I
2. Sections $500, ct seq, annotated stat.
article III of the constitution Of the state
Of Nebraska. nor are they ~repugnant to
the fourteenth a~mendment to the constitu"
s.. In a hearing before said board for
committing a criminal abortion upon a
pregnant woman II Is not necessary. to all
iege or prove that she was in any state OF
Interpretation, but simply. that she was
pregnant Of a vitalized embryo OF toetus.
52s. =,
L A trial and conviction in a competent
court is not a condition precedent. to the
institution and prosecution OF said proceed
ings. -
B.. In case the secretaries or the DOoTu
refuse to issue subpoenas for witnesses for
the defendant or TO compel witnesses TO
answer material questions propounded by.
duct will not be considered in the district
court unless the defendant requested the
with defendants requests, and said board
improperly refused so to do.
6. In case the secretaries and, the board
find against the defendant, but by mistake
or oversight the record does not evidence
their said action; said board has power 70
ruth. even though error proceedings are
then pending in the district court.
z. In contested proceedings for the re-
tice medicine II is within the discretion or
the State Board OF Health and OF It's secre-
taries to receive affidavits relating to rele-
want facts at issue in said hearing.
s. In said proceedings II Il appears that
the State Board of Health has acted Within
it's Jurisdiction, and that all OF the Juris-
d~ictional facts essential to uphold its final
order are sustained by some evidence com
will be upheld in error proceedings TO, the
district court and on appeal to this court,
lSsI2: Wertz against Sprecher. AnpeSi'
i. Tho truth alone is not a complete de-
Tense in a civil action for libel, but II the
defendant j%ustifies. he must further allese
aasia%ga sifgG.6 matter with seed seed mGtiy 81, me Z,
AGAINST SisECvrEy Z SssO.. 8; Nelson
| dSdlnSl Jtnbtns . IN0O.t roO.
1894. Continental Lumber Company
against Munshaw & Co. Appeal. Douglas.
Affirmed. Good. c. Division No. 4.
l. When the Intention OF a party Is TO
be ascertained from disputed or ambiguous
circumstances. the necessary differences. to
be drawn are for the determination Of a
Jury. Continental Lumber Company against
Munshaw, 19 N. W., 100. followed and APP
proved.
2. The admission OF incompetent testi-
mony will not work a reversal of a case
unless it appears that such evidence was
pTeiudicial TO the complaining party.
1880. Kimball Bros. Co. against Ftz-
gerald. Appeal, Lancaster. Affirmed,
Calkins. C.. Division No. q -.
l. Where, In an action brought against
an ADMINISTRATIVE personally for improve
meTts made upon the real property OF the
lntestate, 1t Is held that the evidence is
insufficient to show that the agent ac-
tually making the contract had authority
from the defendant so to do, the fact that
upon q second trial II appears that tho
property I'm question had been set Oft 10
Tho administratrix as dover, does not call
for a different disposition OF the case. the
evidence regarding the agency being the
same as upon the former trial.
2 The authority of an agent TO execute