Omaha daily bee., 1909-05-08
RUSSIAN AMERICAN LINE
SUPREME COURT SYLLABI

used in the proviso of section 6ii7. An
notated Statutes, 1907, include a suit in
stituted by an appeal from the disallow-
ance of a claim by a county board.
1546S. David Bradley a. Co. against Mat
ley. Appeal from Custer. Affirmed. Ep-
person. G.; Dean, j., not sitting. Com
In this case, where a justice Of the
peace overruled as special appearance OBJ
jecting to the jurisdiction over the person.
an adequate remedy was given by error
proceedings and the ruling cannot be as
sailed collaterally.
1884. Duval against Advance ThresheI
Company. Appeal from Keya Paha. Re
versed and remanded. Good, c.. Division
In an action by an agent upon an agency
and commission contract to recover com.
missions earned In selling merchandise to
the amount Of 3, fO6, plaintiff had judgment
Tor &lI.25. The contract was set out in
the ~pleadings and showed that plaintiffs
commission could not exceed 20 per cent of
the purchase price and that the commission
became due and payable only when the
cash and the pleadings also showed that
nut SS.OO OF the purchase price had been
pad IN cash. Held, that the judgment was
not supported by the pleadings.
lb46S. Van Buren, against Village of Elm
WOOD; .Appea! from Cass. Affirmed, Good,
G. Division No. /.
An act Of the legislature entitled A
act to provide for vacating streets, alleys
and public grounds in towns and villages
passed and approved March 10, 1871, insofar
as SAID act confers upon county boards the
power to vacate streets within Incorporated
villages was repealed by the act Of the
legislature entitled IAN act to provide for
the organization, government and powers
OF cities and villages" passed and approved
March |, 1879.
l54es. State ex rel Dobney against Chicago
d Northwestern Railway Company. APP
peal from Holt. Reversed. Root, ].
!, A railway company so distributed it's
freight cars that empty cars were ordinarily
EnNntnnA m liz tVVaatA - -
been unloaded until they could be reloaded
with outg ing freight; 1t also preferred ship
pers OF live stock, grain ana all kinds Of
merchandise over the shippers OF hay To-
Gated at noncompetitive points on it's rail-
way, and during a hay blockade at its
terminals in Chicago and Omaha, withheld
cars for the shipment of hay to other
points until the congestion at said terminals
was relieved. Held, an unlawful discrim-
nation against the shippers of hay.
2. l.. applied to the district court for and
which directed the railway company 10
furnish fifty cars at the rate Of at least
tiVe cars per day, for his use. There was
q general shortage OF cars and locomo-
tives available for the use of the patrons
OF the carrier, but the railway company
had exercised diligence to provide adequate
equipment for the transaction of it's bust
ness. Held, that l.. was only entitled to a
just division OF the empty cars that should
have been apportioned by defendant TO the
station where l.. was engaged in business
3, That although the order of the district
court should be reversed. yet as defendant
was In fault to some degree and it had ex-
elusive possession Of the facts which would
Instruct plaintiff concerning the form OF
his demand and the limit OF his rights, the
court In the exercise of It's discretion will
CARRIE
154s5. Classy against Dye. Appeal from
Custer. Reversed and remanded. Cslkins,
C.; Dean, j., not sitting.
/. Where one has entered the premises Of
another for the purpose Of notifying him
OF the straytng OF his stock, and the land
owner theTeupon orders him to depart his
failure to do so instantly. unaccompanied
with any threat or violence toward the
land owner, does not Justify the latter in
usins a deadly weapon 20 eject him.
2 Where the plaintiff enters upon defend
ants premises to notify him of the stray
ing OF his stock, and the defendant there
upon ordered MIN to depart and upon his
with a deadly weapon, breaking his arm,
II was error for the court to instruct the
Jury That the defendant might use such
force as was necessary In self-defense or "a
prevent receiving bodily harm. it not APP
peaung that the plaintiff In any. wise at
tackled or threatened the defendant.
3. Where the plaintiff brought his suit
Tor two alleged assaults pleaded as scpa-
rate causes of action, and there was nc
evidence whatever that the plaintiff had al
the time OF or shortly previous TO the sec
ond assault, used provocative or threaten
ing languag toward the DEFENDANT, II was
error to charge the jury generally that II
they believed from the evidence that plain.
tiff recently before or at the time OF ths
alleged assault had used provocative OF
threatening language toward the defendant
they might take that circumstances into con,
sheraton In mitigation of damages.
l54ig. WoTTall Grain Company againsI
johnson. Appeal from Lancaster. Al
firmed. Barnes, j.; Fawcett, j., not sitting
J. Where a party answers over after Al
adverse ruling on his motion or demurrer
and goes TO trial on the merits OF an issu,
he had elected to join, he valves the error
II any, In such ruling,
2. Evidence examined, its substance stated
In the opinion. and held sufficient TO sus
tain the judgment.
3 II IL error 20 refuse a request for Z
Jury trial IN an action at law, but wher'
the one making the request has no sub
stantial cause Of action or defense. and th'