Omaha daily bee., 1909-10-16

1890. Higgins against Vandeveer. APP
peal from Nemaha- Reversed and re-
manded, with Instructions. Root, j.
Reese, c. j., not sitting.
/. The county courts of this state are
not vested with authority TO ~adJudlcate
disputes between the surviving husband
of a testatriX and her d~evisees concern
Ing his right to an estate by the courtesy
in her lands.
2. The county court does have jurisdic-
ton to enter an order requiring adminls-
traitors or executors, appointed by II, TO
deliver to a surviving husband lands in
Nebraska, which came to their possession
as such officers, where the only differ
ence between said parties is one OF law
arising out of the construction OF a Will
that has been admitted to probate by said
court.
= district court, on appeal from an
order of the county court in such a pro
eeding, has like power to construe a Will,
but in such proceedings, neither court has
Jurisdiction to revoke in part the probate
of said will.
4. The county court, or the district court
on appeal, In such proceedings is without
power to decide whether the husband has
an estate by the courtesy in land situated
in a sister state, or to direct that he re-
cover possession thereof, and IL 1t at
tempts to do so it's findings and Judgment
to that extent are void and Of no effect.
8. III a court spreads upon It's records a
judgment void in a part because not re-
sponsiYe to the pleadings, or not pertaining
to subjects within its jurisdiction, a party
against whom the judgment is directed or
whose property rights IL assumes to in
fluence, is entitled to nave Cancelled and
so much OF the judgment as is void.
6. And the statute OF limitations does
not present a bar to the right and power
Of the court to clear its records of UNI
authorized and illegal entries therein.
7. In an equitable action, a cross-suit
must be germane to the original bill, and
the issues thus introduced are limited to
such as are necessary for the court to
consider in deciding the questions raised
In the original suit in order to do complete
justice to all parties with respect 10 the
cause of action on which plaintiff demands
relief.
s. In a suit to vacate certain orders
made by a oun court, and the district
court upon appeal, constituting a will to
the effect that a surviving husband is
entitled TO an estate by the courtesy in the
lands of his deceased testate wife and re-
VOking in part the will and its probate,
wherein the heirs and legal representatives
Of the husband who departed this life sub
sequent TO the entry Of the judgment at
tached, and a grantee of said husband,
are made defendants, a cross-bill filed by
said husbands representatives charging
that said grantee procured his deed from
the deceased husband by fraud, is not
germane 10 the bill and will be stricken
from the record on application Of said
1894. Wirth against Welgand. Appeal
from Otoe county. Reversed and remanded.
FaWcetts j.
l. Where a judgment OF decree has been
entered against an insane defendant
through perjury or fraud on the part of the
prevailing party, such defendant may pro-
coed by an original suit in equity TO i'm
peach such judgment or decree and have
leave to answer and defendant the same,
and Is not obliged to wait for that purpose
until his incompetency has been removed.
but may proceed at any time through his
legally appointed guardian.
Q Facts alleged in the petition and ad-
mitted by the demurrer held sufficient "a
show plaintiffs legal capacity TO sue.
s. Petition examined and held TO state
a cause Of action.
1898. Engles against M-organstern. APP
peal from Nemaha county. Affirmed. Let
ton, j.; Reese, c. j., not sitting.
/. If a case ever arises IN which al
action for enforcement Of protection OF
right OF the redress or prevention OF
wrong cannot be had under this code, tn
practice heretofore in use may be adOpte,
so far as may be necessary TO prevent
failure Of Justice Section sol, code.
q The right to review final orders o
justice OF the peace and other inferio
tribunals still exists Notwithstanding TN
repeal OF section So OF the code.
| 8 Contract set forth In opinion held no
10 be void on its face as against publl
policy or as in violation OF section /, en-
81 ta), compiled statutes of Nebraska, 1901
1890. Arnold against Dowd. Appeal
Harlan. Affirmed. Rose, j..
l. The right 70 rescind a contract foI