Omaha daily bee., 1909-01-20
Supreme Court syllabi

1885,. BuTnham against Chicago. Burling-
ton \ Quincy railroad. appeal from Ian
son, G. Lettou, j., coucurring separately
Reese, G. j., dissenting and Rose and Dean,
j., not sitting. Division No. l.
1. A railroad company is not required to
enclose that portion OF It's right-ot-way
even outside Of towns, villages and citio.
and public highways, the enclosure OF
which by tho construction OF fences and
cattle guards would be an Increased danger
>. In an action charging a railway, COM
patty with failure to enclose Its right-of-
way, the defendant pleaded In excuse that
TO fence the same would unnecessarily en-
danger the lives OF It's employees. Held,
that as It plainly appeared from the cvi.
denCe that the safety OF the employees OF
the defendant company requires that the
locus In quo remain unenclosed that the
court should SO declare and withdraw con
s.deratiun Of the case from the iufS.
lS4SS. Douglas County against N~insonhaler.
Appeal, Douglas. Reversed with instructions
TO dismiss plaintiffs petition with costs.
Calkins, G. Fawcett, J. and Root, j., not
sitting.
l. Where an action is brought, against a
county judge and his surety, for a failure
to report fees in excess of the amount al
owed him as compensation. earned but
not collect, 1t must appear that he wilfully
omitted to charge the prescribed fee, with
intent to evade the provisions OF the
act Of 1877, claws OF 1877, page gib); or
negligently omitted to collect such bees; or
in taking security therefore, negliBenuy
failed to require sufficient surety. state
against HAzelett, Al. Nebraska 80;
| ltUZcltlL against Holt county Olp NtbIdshus
nc; Sheibley against Dixton county. 81.
Nebraska, 400; Boettcher against Lancaster
county, "A, Nebraska, ilS; limited and dts
tinguishcd.
?. The power given by section S OF chap
ter 81. compiled statutes, to judges and
clerymen to perform the marriage ceremony
in this state is permissive, and not man
datory except as to such officers as are
given fees for the performance Of such
5. The provisions of section S Of chapter
rs, compiled statutes. giving to the county
Judge for any. service. performed by him
a justice OF the peace. the samo fees are
PEACE o.5 t0F liz ike : sery AS,s5 az I aaa6,S
judge derives his power 70 perform the
service solely from the grant TO, him OF
Justice OF the peace. 1t does not give him
the right to charge a fee for marriage
ceremonies, because the power TO perform
such ceremonies Is not derived from such
grant Of ordinary powers and jurisdiction
Of a justice of the peace. a.,
4. Where the meaning OF a statute is
doubtful, long usage is n Just medium by
which to expound It, and the fact that the
officers whose duty II was To enforce tne
II so as not to require a county Judge to
report fees received for performing mar
riage ceremonies, may properly be con
It is claimed the right to such fees was
given.
1916. McCarn against London. Appeal
! from DOuke. AIIlrlneu. Idlhllbs -. btdut
j., not sitting. Division No. 2.
1. Where the owner Of an entire city lot
signs a writing memorandum OF sale in
which the property is described as the north
80 feet OF such lot, the memorandum Is
insufficient under the Statute Of Frauds.
and a specific performance thereof will not
be enforced.
1913. Gorder G. Son against ~,Pankonin.
Appeal from Cass. Affirmed. Calktns, c.
Division No. 2
gnaCfff, narfpprnu moo nf a pnVRnAnt to re-
new a lease, the fact that the descrip-
ton of the property in the lease is IN
definite will not defeat the plaintiffs
right to have the same specifically per-
formed where II appears that both partie;
, have, without question, acted under said
lease, the defendant surrendering and the
D plaintiffs accepting certain specified
property as being the property described
in said lease.
stranger by one member OF q partnership
does not make such stranger a member
Of the firm, there is no rule of law for
: bidding all the members OF TAI fdrtn Afron
agreeing to ADMIT a new member as q
e partner therein.
d 8. Where by agreement between all the
partners "A new member is admitted to the
firm, he acquires an interest in the part
nership property by operation Of law
! and such transfer is not within the
: statute of frauds.
J, A. In an action by a partnership fol
% the specific performance of a covenant
to renew a five-year lease, it is imma
| ltllal INA az Adln tllltS uuIlllb VI
first term OF said lease other persons
held an interest in said partnership%w her,
the persons who constituted the partner
- ship at the time of demanding such re
newal are the same persons. who wert
members Of the firm at the time OF Gh'
execution of the lease.
e 8. Where a lessor has accepted tin
n benefits Of a lease made by him to
partnership, he cannot in an action b!
such partnership TO enforce the specify
performance of a covenant TO renew
plead that the partnership was withou
capacity to take the legal title to rea
estate, f ,.rs .''f
c. Where a plaintiff purchases a stocl
n OF goods and the good will of a business
at the same time taking a lease of tn
premises in which said business has bee
carried on for a term of years, with a
option to renew at the end of said tern
he Is not confined TO an action at laI
4 for damages in case of the landlords re
fusal TO fulfill the covenant to renew
but may maintain an action in equit
l. FOR the specific performance Of sue
covenant.
II 1887. Smith against Union Pacific Raj
way Company. Appeal from Greeley. A
firmed. Good, c.. Division No. /. -
y Defendant in errors intestate, while dri,
ID Ing on the public road, parallel with. ii
IN railroad track of the plaintiff in error, upc
ed a moonlight night, left the public road an
"a went diagonally toward the railroad tracl
and over the side of a cut where he, wit
his wagon box ana a load of lumber, WEI
at thrown upon the track. A train soon aft,
struck the obstruction, and he was afte
- naAh lphilu ildlblNu upOH lnC IIaChs Inc
rs Is no evidence indicating that his team IA
C, away or became Interchangeable, but the ev
dence shows that he was much ~intoxicat,
ed q short time before the accident. Hell
cy that the deceased was guilty OF such col
er tributory negligence as to preclude recover
Is though the railroad was not fenced at Il
Is locality Of the accident, as by law II WI
required to be. Union Pacific RallwI
nd Company against Smith, 5 Neb. Unofflci
63l, SO N. w. 3S followed and approved
l541l. Stires against First National Bar
Of Appeal from Platte count
Reversed with directions. Epperson
If Division No. ].
ar, /. A contract between two creditors OF
as common debtor wherein one agrees that
debt owing TO a third creditor may be DIT
~ ferred by the debtor, II purchased by 4
&C. other contracting creditor. does not amlou
%; to an assignment OF the first partys del
~ nor OF dividends declared thereon In SUBJ
an quent bankruptcy proceedings.
c" 2. A note pledged by a third party
security for the payment OF "A debt stan
in the position OF a surety for the payne
i, Of the principal debt and funds paid up'
V the pledged note will be applied upon /
debt secured. 80. ~.
W Neb., 1872, distinguished, and Rieger again
- schAible, - Neb., -, lbs N. w. $50, a
proved. .. 80 -, =.
Is 1882. Pike against Hauptman. Appe
from Saline. Affirmed. Duffie, c. Dt'
a. sion No. / .r -tr gr t.s
air /. Where II is apparent that the zher
n ade an honest effort to serve a subpoe
and was unable to do so on account OF I
absence NJ the Uktnaaa fran tina : 1afal