Omaha daily bee., 1909-01-31

he can only partially refresh his ~recolleoN
lion does not render him competent
1870. Edmund against Edmund. AppeR
from Lancaster Affirmed. Letton u
Dean, j., not sitting.
Of one estate and guardian OF two others
In which the same persons we're inter-
Count of snid est enc IHT s fniled An" final
report applying TO all three OF the estatet
In the county court. which made findings
wards he filed a supplemental report IL
connection. with and based upon his for.
county court. Separate appeals wert
.&ken to this court from both orders m;
that the first order was not a final order
and not appealable, and also that the sec
ond order which is set forth in the opin-
Ion was not a final order. Held, az that
whether the first order was final or not
the adoption of the first report and find
the whole accoInting forward into tbs
second order which terminated the mat
tters In issue, and that an appeal from
(2l that the second order was final and
2. Where a partial transcript on appeal
from the county court was filed in the
district court within the statutory time
~ Was not error Tor the district court q
case, which had formerly been filed In
the, district court to be attached thereto
8 Where separate appeals are filed in
the district court and the cases are COM
scripts are properly taxed AGAINST the
losing party, since each transcript IL
necessary 70 the appeal
peal, Dixon. Reversed and remanded.
Calkins. c. Division No. 2
dlticns the PLAINTIFF risht to recover dam.
ages for defendants negligence. upon plains
tfts fault, negllgence, want OF care OF
ordinary care, submits the question OF
contributory negligence.
3 Where there is no evidence from whicl
me want OF ordinary care on the part o.
the plalntitt lie shown or may be inferred
is preJudicial error to submit to the jury
the question of plaintiffs contributory neg.
iisence; Ciingan against Dixon County, 4
1895. Starke against Chicago. Burlington
4 Quincy Railroad Company. Appeal, Web
9ter; Keysrsed and remanded. Fawcett, G,
l. In an action to recover damages for tho
killing OF an animal by a train of cars upon
a railroad track the mere fact of killing is
not sufficient to establish negligence on the
part OF those IN charge of the train. Bur-
nngton Missouri Railroad Company
1902. Ruth against City OF Omaha. Ap
peal from Douglas county. Affirmed. Ro
/, A written notice to the mayor and
city council Of a metropolitan city, given
walk for a designated space of two blocks,
including the point where said injury oc-
tripping up and railing occssioha sHy.S and
requesting an acknno wledgement of the
receipt of such communication lin order
that proper damages may be secured should
accidents occur thereon" is sufficient under
section MI, Cobbey's Annotated Statutes,
1901, where the proof clearly shows that
to In said notice was at said time in a
defective and generally dangerous condi-
ton.
i54O7. Gentry against Bearss. Appeal from
Buffalo. Reversed and remanded. Good, c.
i. II the petition on Its face dlscloses
plaintiffs lack of capacity to sue, such
defense will be waived unless raised by
2. AS a general rule when a state adopts
a statute from another state II also adopts
placed upon II by the courts of the state
8. Under general sections 1880, 1896 and
1885 Of the Oklahoma statutes for 1893, a
guardian Of a minor cannot make a valid
sale OF, a wards personal estate without
out such authorsy will be void and vest
no title in the purchaser.
T. In an action by a guardian OF a minor
who has purchased such property from a
former guardian who had not the courts
shs p%IaiSt, Il to ssii return tt rs or not offer to return qn
The purchase price when 1t appears that
no part thereof ever came to the plain
that the purchase money was used for tho
lbls. Crocker against steidi. Appeal
from Pawnee. Affirmed. Root, c. De-
vision No. q
/. Where the value OF a stock of general
merchandise was In Issue, II was not COM
petent to inquire of a witness. not shown
to have seen. or to. know anything about
the condition of. said stock or the extent
thereof, what was the fair market value
2 II the testimony, is conflicting and /.
fairly submitted to the Jury. a new trial
will not be granted IL there Is evidence
sufficient to sustain the verdict. even
though this court might have reached a
different conclusion. from the evidence.
than that attained by. the jury.
cred e eyid srrseS Will T not bes o 90 hs%,y q ~ coy.
court unless included in a bill OF excep-
1887. In re estate OF william Fletcher,
deceased, Fletcher against Fletcher. APP
peal from Saline. Reversed and Temanded.
i. 4 widow Need rot nS account o1irtpt To- III. estat,
CT her husband for the rents and profits
of their homestead. which have accrued
2 The inventory filed by an executrix is
not conclusive. but is open to explanation
s. The executrix will not be given credit in
her account for money expended for her
personal advantage concerning said estate.
under subdivision !, section 16, chapter 20,
Compiled statutes, 1905. to the chattels
; from frns'P her rps SusbSnd fna estate alsS 40 and 20 ssia n p Sssn
erty. Is not assets OF the estate In the
: hands of the executor.
which was duly probated, devised all of HIS
property to his wife during her natural
! life, and named her as eXecutrix, with
? succession in said office to a son after her
! death. Subsequent to that time said prop
: erty is to be sold and the proceeds divided
> among four devisees. More than a year
subsequent to her appointment as execu-
= trix the widow applied to the county court
: for maintenance from said estate. Notice
I was not given Of the filing or presentation
-, CT said application nor was the time for
the settlement of said estate extended,
The court allowed SIS per month pending
said settlement, to be paid from the asset1
: of said estate. Thereafter a devisee se-
cured a modification of said order 80 tina
: from said date the allowance was to be
e paid only out OF the income from said
: estate. An appeal was not prosecuted from
j either of said orders. Held. that the order
: as modified was valid. binding all persons
. interested I'm said estate.
r 1881. Falsken against harrington. APP
e peal from Richardson. Affirmed. Dpper.
son, G.. Division No. l.
d l. A bank as agent for the payee or q
I promissory note, received the maker
check for the full amount thereof. marked
a the note paid and gave II to the maker
e and Immediately delivered to the makei
New York exchange for 5000, representing
: a part of the amount due upon the notB
n with the understanding and agreement OF
. the maker that he should annIv fhA % ~