Omaha daily bee., 1909-04-04
Supreme Court syllSbi
Appeal

lS4tt. Nine against Mvrgan. Appeal
from Webster. Affirmed. Rose. J.
l. Where q petition to quiet title states
that defendant has no intereat In the lano,
but claims an unfounded dover interest
therein, q reply alleging the claim is un-
founded BY reason Of defonGants nonresi.
denee does not INTRODUCES a new cause OF
action.
"A defendant who submits his defense
to the court on issues raised by the reply,
TishSas atssebinE ft n sny tSrm nav W cause
Of action. Gregory against Kari 70 Nen'
s. On appeal from a decree in a suit
to land. her homestead interest cannot be
considered on q record which fails TO dis
close either by pleading or PROOF that tne
land had ever been occupied or claimed hs
T. Where a husband conveys lands in this
state while his wife Is a nonresident thereon,
she has no dover interest in the lands thus
conveyed" Atkins against Atkins, 10 NED
& Proof that a man left his wife in Wis.
HlS 2s wiz eSH' he. 70 NsSsS1es Concealed 20 asT his
residence from her for nine years, repre-
sented himself to be a single man ana CON
SsseU wRsehrSS fbs s SIsd IN mo iSos, his wife never
having lived In this state until after his
death, held sufficient 70 sustain q tindiipg
meaning Of the statue limiting the dover
right Of a woman living out OF the STATE 10
lands in which her husband died seized,
6. A statute limiting the dover right OF
a nonresident widow to lands Of which her
husband died, seissa ana fSsSnd 10 soth SeT
lands, held not inhibited by %consii-
~tutional provisions relating TO due process
Of law and 70 distinctions between resident
;oSmsn sn or Gdi..i .esSt n I prept Possession ea'
LsnssstsT' Afflr%sd.' Lsttoe, ): as,o.s
to establish a lien by contract upon the
proceeds OF the sale BY the tenant OF GER
tain crops in the hands Of a grain dealer,
the finding OF the trial court that the buyer
paid the purchase money TO the tenant
"ib1ts. Armstrong against Greenwood. APP
peal, Otoe. Affirmed. Epperson, g,
After making his final report and secur-
ing and order approving the same and dis
charging him fFem his trust. an executor
filed a petition to permit him to account
for mortgages, which, he, held In a trust
objected IN general terms to his, discharge
as executor FOR the reason that the charges
made by the executor are excessive and
~jections were insufficient TO require the
county court to reopen the former pro-
ssssinEs for s srd Pgbrp9ss OF cor GsylsS'ns e he
final report of the executor.
164ss, Larsen against ssnEieri. Appeal
from Douglas. Affirmed. Root, j.; Faw-
In 1898, L., by virtue of an executory
contract with p, entered into possession Of
five acres OF land for ten years L. made
payments thereon and then received a deed
from p. for said five acres only; when l..
took such possession the five acres were
part Of a larger tEact, all OF which was un'
cultivated and covered with brush; by mis-
take l.. encroaehsd on a strip OF P.s land
adjoining said flVe-aoEe tract, cleared ana
cultivated it and received the exclusive
benefit therefrpm for more than ten years,
l., testified that he discovered his mistake
within a year and held possession adverse
to p. Held, in eJeetmsnt by P's grantee
SSsi1st - =, sFS ante M tsss n1 Ss ,hf Is. eoI poss Hse
sion was hostile in its inception, they should
find for defendant, and no exception was
taken thereto. a verdict for defendant was
1854. Ord Hardware. Company against
Case Threshins Machine Company, ,Ap,,
peal from Valley. II remittitur Of alb OF.
exc 5aat ,sss'S r Is fiIed BY plaintiff within
forty days. Judgment affirmed. II remitti-
tur Is not filed, cause reversed n re-
manded. Barnes, j.; Reese, c. j., not sit
ting
i. II is reversible error to instruct a jury
on an issue not sufficiently raised by the
pleedings, and which Is unsupported by the
SSiiecgt. '"'a mas 'esu''''
.. Where In an action by an agent
against his principal to recqyer money al
legged to be due on commissions II clearly
appears that the parties have adopted a
fair and reasonable construction Of their
contract, and have acted thereon for a
number OF years, the court will also adopt
such construction.
2. Where the adoption Of such eoBstruc-
amount Of plaintiff 'recevsFy TO a mere
matter Of computation, this court may
make such computation and require tine
pfetnh% n i ne m r rsndelss On the bs eS trisi
'court over the amount he was entitled to
recover or submit to a reversal Of his juds-
1895. Smith, administrator, against Chi
cago. Burlington q Quincy Railroad Com
Pany. Appeal from Furnas. Affirmed.
/. A railway company. in constructing its
road filled In a ravine and substituted an
ether way for flood waters that would
otherwise have passed down said water
It became apparent that the artificial wa
ter course did not have the same capacity
as the natural one. Held that the railway
might occur at any time and company
damage result as a consequences OF the IN
adequate provisions made by II as afore-
2. That a lessee of the original owner
and builder Of said road is also charged
in law with notice of said conditions and
liable for damages resulting from It's fail
uFe 70 exercise reasonable diligence to
protect adjacent land owners from the
consequence OF It's neglect. "
p new trial viii not be granted be-
sEFNT 49, NfNhgANN ~ " a EOHIuAT
Ing and contradictory, where they are fa-
yoreble to the defeated litiEant, and evil
DENLY Old not mislead the fury.
l6H2' State against Dudgeon, Error from
sitting. " ' ~ w.
J. The police Judge or the city Of Lincoln
has jurisdiction in cases Of violations Of
tne rules OF the excise board OF that city.
2 The jurisdiction OF a police judge under
section lk, article vi o. the constitution.
section 30 OF the criminal code and section
1888 Annotated Statutes, 1907, in relation 10
nlsqemeanors is concurrent with that OF .
Justice OF the peace and where the punish
ment may he q fine of over 1lnO he can only
slt as an examining magistrate.
D. Insofar as rule n on the excise hoard
or the city of Lincoln authorizes a fine III
over 'Se for q violation OF the excise rules,
y, beyond the power conferred by the
lesisiature and is void, but TO that extent
the penalty may be enforced.
T. Rules OF the excise hoaPd within its
authority, duly adopted and published, are
or like force and effect a. ordinances OF the
city adopted by the city council.
1880. Smullin against Wharton. Appeal
from Douglas. Reversed and remanded
Reese, @, j.; LattoH, j., and Root. j., dis,
l. As construed upon a final adjudication.
i've VIII OF q. y. beaueathed and devised a
portion OF his estate tn a trustee. the in
cpne ana, II necessary, q portion Of tha
pouy OF the trust estate, To be applied IA
the maintenance and support OF T. B., his
VIE, the surplus of the Income to be dI,
Nided between ais collateral heirs. and upnR
the death OF J., 3. the whole ~ the trust