Omaha daily bee., 1909-11-28
SUPREME COURT SYLLABI

l9yVV thoii akelhst SAWYER. Appeal from
saline. On motion for rehcariug, former
judgment vacated, judgment district court
reversed, case dismissed. Barnes, J.
l. IN order to give the district court iurls-
/ dictlon In a proceeding I'm error 10 re-
verse a Judgment Of a Justice OF the peace.
The plaintiff must file a transcript. a pets
ton IN error In the district court and csusG
a luminous in error to be issued thereon
against the defendant within six months
rom the date q the rendition OF the judg-
ment complained OF which ummons must
be served upon the defendant in error or his
attorney Of record,
3 After the expiration OF six months from
The date OF the Judgment Inc sIstrict co,,rt
cannot obtain Jurisdiction 20 reverse the
Same BY Issuing what is called a nunc pro
tune. summons In error and directing serV-
ice thereof TO be made upon the defend
ant, and a judgment reversing the Judgment
Of a Justice OF the peace upon such ssrv-
l. The test Of Jurisdiction is whether the
power to determine the question OF its own
Jurisdiction, but where the jurisdiction Of
the court does not depend upon a question
Of fact, and Is simply one OF law, no find
ing or declaration OF the court, n made in
disregard OF. plain statutory provisions,
T. The test OF juridictlon is whether the
tribunal had the power to enter upon the
regular. It's findings right or is eonciuS
slons In accordance with the law.
o A void Judgment Is In realty no judg-
ment. 1t is a mere nullity. II u supported
by no presumption, and may be impeached
IN any action direct or collaterd.
no. b,eS Berrymen against ~SelahlandeT.
Appeal from Knox. Reversed and Rmanded.
Fawcett, j.
L a. county board or board o county
commissioners are clothed not ony with
the powers expressly conferred upG them
by statute, but they also possess sud- pow
eLs as are requisite 10 enable them 10 dis
them by law. 49,
2 The matter OF allowing a SUM "a tha
county attorney to cover actual necekarv
expenses Incurred while investigating and
prosecuting criminal cases and defenlng
cases brought against the county, Is within
the, sound discretion Of said board. I'd
said. board may, Ia the exercise OF such d.
erection, lawfully allow and reimburse tx
county attorney for such expenditures,
loo Lodge No. 102, Ancient Free and Acc
eepted Masons. Appeal from Douglas. At
firmed. Letton, J.
!. As a general rule, the tender Of one
exact sum due upon a mortgage debt upon
the law day In accordance with the
terms Of the instrument operates to dis
charge the mortgage lien, and thereafter
the only liability Is upon the note. An
offer to confess Judgment In such a case
after action is brought is sufficient 10 re-
lieve the defendant from costs and inter
est accruing thereafter without paying the
money to the clerk Of the court at the time
the offer is made.
2. A court Of equity will not be dIiigent in
seeking for reasons TO permit a creditor to
recover interest when the debtor has ten
dered the full amount due and when the
creditor has by his own conduct lost The
right TO recover interest.
3. II a creditor prevents payment by
w~rongfully refusing to accept the amount
due. when rendered by the debtor, and some
time demands Il, the debtor is
entitled TO a reasonable opportunity to
comply with the demand.
1874. Spalding against Douglas County.
Appeal from Douglas. Affirmed. Root, j.
l. A litigant who stands upon a genera!
demurrer to a pleading thereby admits all
Of the material facts well pleaded and must
take the consequences which result from
such an admission
2. A Juror drawn for three weeks service
In the district court Of Douglas county, who
appears and serves as a juror in said court
during that period, is entitled TO recover
for all Of the days Of said term, sundays
excepted, unless excused from such Attend
ance by the court.
1874. Dorsey against wellman. Appeal
from Douglas. Affirmed. Root, J.
requests the court to direct a verdict in
his favor, he valves the right 20 any lind
ing or trial Of the issues by the iury, and
consents that the court shall find me tactS
and apply the law thereto.
2. A finding OF fact made by a court in
the trial Of an action at low Is entitled
and, II there Is competent evidence TO sup
port the finding, it will not be disturbed
5. Chapter Al, Of the compiled statutes, the
negotiable instrument act, does not apply,
before that statute became effective.
1874. ]. I. Case rhreshing Machine com
pany against Higgins. Appeal, Furnas. Al
firmed. Rose, j.; Dean, J., not sitting.
A district court In which the transcript
Of a judgment OF another district court has
been filed is without authority to revive
the judgment by the statutory method OF
revival created by section 43 OF the. code,
such power remaining in the court Of orig
inal Jurisdiction.
57T76. Bingnman against BinEaman. Ap-
peal from Saline. Reversed and remanded
with instructions. Letton, J.
/. While IL Is the rule In this state that
a preponderance OF the testimony Is all that
is required 10 sustain a finding in a civil
case, still, what constitutes a preponder-
ance may vary largely according TO the
circumstance OF each case.
2. Where It is sought to set aside a writ
ten instrument, and more especially one
which has been executed with the formal
ity OF being signed In the presence of wilt
nesses and Acknowledged before q notary
public on account of fraud, the presump-
ton Of validity and regularity attaching
to such a document require clear and con-
vincing evidence to preponderate against
them.
The formal instrument furnishes proof
of the most cogent and solemn CHARACTER
and to outweigh this proof requires a great
err uuantum OF evidence than in a case
where there are no such presumptions to
overcome. Peterson against Bower, 76
Nebraska 652, 1858.