Omaha daily bee., 1909-06-12

tense We're. properly put in Issue by a re-
Chapel against Lancaster county. Az
peal Lancaster county Affirmed Dean, J.
{: A statute should be construed in the
light OF all generaGiaws upon the same sub
ject in force at the time OF its enactment
2 The fees Of a juror called TO serve as
the provisions Of sections asa bi and $50
OF the criminal code, must be paid by the
county In which the pcnitentiary Is located.
Sucha against Sprecher. Appeal ColfaX
county. Affirmed. Barnes. ].
/ In civil actions for libel the court usu-
ally decides whether the words are ohjec-
t%lonable, per Sc, but where they are am
gbiuous, OF are susceptible to two lnterpre-
tations, and there is any reasonable doubt
as to their true construction, Il is for the
jury to say what meaning such words
would have fairly conveyed TO their minds.
2 Where an answer is not attached either
by motion or demurrer. but Is treated by
the plaintiff as sufficient, and n trial Is
thereby Il cannot be successfully attacked
for the first time on appeal to the supreme
court.
3 Evidence amined and found sufficient
to sustain the judgment Of the district
court.
Powers against rsoshusiav. Appeal. But
Ter. Affirmed. Good, c, commissioners
A finding of the district court based
on eontlsung evidence in q law action viii
not be disturbed on appeal unless such
finding IL manifestly wrong,
"A brokers' contract for tire salstof land
ls not void for uncertainty Of description II
the contract contains data from which the
land may be identified and ascertained with
certainty. - 49, q
s. Where a party gives a reason for his
conduct and decision touching anything In
volved in a controversy, he cannot after
litigation has begun change ms ground and
put his conduct upon another md different
consideration. He Is not permitted thus TO
Rohiff against Bice. Appeal. Boyd. Re
versed and r~emanded. Epperson. c., COM
missloners' division.
In m aatlNn 70 RGgNNrnR the nRfrN %
liquor sold under q contract, the plaintiff
need not allege that he is a licensed
Radn against Sawyer. Appeal, Saline.
Affirmed. Erperson. C., commissioners
division.
l. Error committed in the rendition OF a
Judgment OF the district court in reversing
the Judgment Of a Justice of the peace I'm
error proceedings, will not be reviewed on
appeal to this court from the judgment OF
the district court rendered upon a trial OF
the merits.
2 A party who challenges the jurisdlc-
ton Of the district court in proceedings IN
fers an adverse judgment. annot collater-
ally attack such Judgment.
j.. II. Teasdale Commission company
against Keckler. Appeal from Cass. Re
versed and remanded. Duffie, c. Commits
sioners' division.
/, The defendant. a resident Of Manlev,
sold 1000 bushels of corn to the plaintiff,
the sale being made through n broker re
siding in Omaha, communication being had
between them by telephone. On the next
day the broker wrote the defendant stat
Ing the terms of the sale. and that con-
firmation thereof would be received by the
defendant from the plaintiff. Plaintiff
wrote the defendant from st. Louis, where
II was located and where the corn was To
be delivered, confirming the same and stat
was headed in bold type as follows: RE
port Immediately, any errors in this con
firmation." Defendant did not reply 20
either of these letters, but on a later, date
ehipnpd npa car Of corn uDOO the contract
but failed and refused to ship the re-
mainder.
In an action brought by the plaintiff to
recover the damage suffered from a failure
TO deliver all the corn. the defendant al
legged as one ground Of defense, that his
contract to furnish the corn was condi-
the shipment, and that cars could not be
procured. He also pleaded the statute OF
frauds as a defense. Held, first. that the
agreement was taken out OF the statute
OF frauds by shipping part OF the corn.
AMI, second, that II the plaintiffs letter
Of confirmation did not properly state the
terms OF the sale, Il was the duty of the
defendant to observe the direction Of the
letter and report any error therein relating
the rule that he who is silent when It is
mis- duty to speak shall not be heard when
he should be silent should be applied.
Jones against Union Pacific Railway
company. Appeal from Douglas Re-
versad in part, affirmed In part. Duffie. G.
Commissioners division.
/. II process in an action is served upon
A person really intended TO be sued, though
a wrong name is given him In the sun
mons and return, and he suffers default, OF
after appearing omits TO plead the mis-
uo;ier, and Judgment is taken against him,
he Is concluded thereby, and In all futur"
litigation he may be connected with thi
suit or judgment by proper averments.
2. One who seeks to enJoin the %enforct-
nent OF a judgment against his property
upon the ground that It was entered againnt
a person bearing another name. must aver
ND ahnuy fhat ha wa q mot the m TfV gIIh6
/ and served with process In the action W
which the judgment was rendered.
o.. The head of a family having neithe,
empt under the laws Of the state, may
claim all of the wages due him as part OF
the $500 in personal property exempt to him
under section 521 of our civil code.
Ress against Shepherd. Appeal, Ian
caster. Reversed and remanded. Root, j
l. The unlawfu carnal knowledge of a
feeble minded or insane woman by an adult
male person, constitutes a felony II the man
has knowledge of the mental condition of
the woman. If by virtue Of such criminal
intimacy the woman becomes pregnant
and a suit In ~filiation is instituted, neither
the county attorney nor his deputy IL en-
titled 20 receive a fee for representing the
woman therein, and the good faith or the
attorney will not Justify the guardian of
the woman in paying such fee.
Branson against Branson. Appeal, Ian
caster. Reversed and remanded. Dean, j.,
Reese, c. j., not sitting.
l. Where partition proceedings are not
amicable the fees of defendants counsel
are not taxable as costs.
2. The power to award and tax costs In
legal proceedings being unknown at COM
mon law, statutes providing therefor are
TO be strictly construed.
3. In partition proceeding where fees OF
defendants counsel have been allowed as
costs In the form OF a judgment a motion
for a new trial and not a motion TO retaN
costs is the proper procedure to obtain a
review of such allowance In this court.
Critics against Modern Woodmen OF
America. Appeal, Merrick. On reheartng,
former opinion adhered to. Letton, ].
l. A party taking a deposition may offer
In evidende and read the cross-eKaminatlon
OF witnesses examined by him In chief and
may use exhibits produced by the witnesses
and Identified upon oross-examtnation.
Q A fraternal beneficiary association
filed In the office OF the auditor Of state
its original constitution and bylaws In
printed form properly certified and after
each biennial meeting of its head, organlza-
ton filed copies of the same as amended,
The printed books were diVided INTO chap
tiers and sections and 80 incsned as too be
easy OF reference and comparison. Held a
substantial compliance with the statute.
Nelson against city OF Omaha. Appeal,
Douglas. Affirmed. Good, c., commits
sioners' division.
l. A meeting of a city counc held on
a day other than that fixed for its regular
meetings, although no call for a special
1911. TO-. Aa.r Voaaa - a NraIFI anapfaI