Omaha daily bee., 1910-02-13
Supreme Court

Supreme Court
1896. Chicago, Rock Island & Pacific
Railway Company against City OF Lincoln.
ct al. Appeal from Lancaster. Judgment
OF district court modified and affirmed.
Barnes, ].
l. As a general rule courts will not en-
join the passage OF an alleged unauthorized
resolution or ordinance by a municipal cor
poration. An Injunction should not issue
in such a case until some effort Is made to
enforce such resolution or ordinance.
1902. Heddendorf against state. Error
from Harlan. Reversed. Rose, J.l
Where the trial court in a prosecution
for murder admits proof OF a confession
challenged by defendant as involuntary,
and by instructions submits to tho jury on
they should be directed to disregard the
confession, II they find from all the evil
dence that it was not voluntarily made.
1856. state ex rel jackson against viii
son. Appeal from Antelope. Affirmed.
Rose, J..
writ Of mandamus results from the trial
OF an Issue OF fact, an overruled motion
for a new trial is a necessary part OF a
the purpose OF reversing a judgment sus-
tained by the pieadings.
1856. Langenfeld against Union p. r. Co.
Appeal from Douglas. Reversed and re-
manded for further proceedings. Letton. j..
1, IN oruer TO constitute actiOnaDle negli-
gence there must exist three essential ele-
ments. namely, a. duty or obligation which
the defendant is under to protect the plain
tiff from injury; a failure to discharge that
duty; and injury resulting from the fail
urc.
2. The petition must allege these essen
tial elements and the PROOF must support
the allegations or there can be no re-
covery.
8, Evidence examined and held insufflcl-
ent to support the material and necessary
allegations OF the petition.
159lS. sewsll against Wilton. Appeal
from Rock. on motion to dismiss, motion
sustained. Per curtain.
1G056. Holmes against State. Error from
Harlan. Reversed and remanded. Barnes,
l.. Where a person on trial for a crime
any other witness, and his credibility is
to be tested by the same rules as are
legally applied to other witnesses 1t is
proper for the court to so instruct the
jury, and in addition thereto to inform
them that in determining the credibility
they may take into Consideration the fact
that he is interested in the result Of the
prosecution; but it Is error for the court
the witness, who is interested in the re-
suit of the suit, will not be as honest,
candid and fair in his testimony as one
Vho ts net 90 Interested.
B. So much of the opinion in Clary
against State, 81 Neb.. 6SS, as upholds such
an instruction is disapproved and over
ruled.
1882. Metzger against Royal Neighbors
Of America. Appeal, Harlan. Appeal dis
missed. Per curtain.
l. Where the record in a law action
shows the filing OF a motion for a new
trial but no ruling thereon by the trial
court the appeal will be dismissed as pre-
maturely taken.
1891. Snyder against Collier. Appeal
from Douglas. Reversed with directions.
Root, j.
L IL plaintiffs petition is prepared,
signed and verified by his attorney and by
mistake an erroneous statement is in
cluded therein. the court should before
Judgment upon terms just and equitable
to all parties, permit the litigant to with
draw that allegation.
2. A plaintiff may, as a matter of right,
under section 430 Of the code. dismiss his
action without prejudice at any time be-
fore its final submission to the court.
3. If a defendant desires an affirmative
judgment against the plaintiff, ne should
state In his answer the ultimate facts to
support his contention. II he fails to al
iege an essential fact, but it is pleaded by
his adversary. al affirmative judgment
in defendants favor may be sustained by
the ~pleadings.
4. The word trustee following the name
of a grantee to a deed, is notice that he
may not be the owner OF the real estate
conveyed, and is sufficient to put those
dealing with him concerning the property
uUOnE CdSOIldDle INQUIRY us 10 lie 6GlSL6IC6
and nature of the trust.
8. The presumption ordinarily is that a
trustee does not have authority to mort
gage the trust estate, and mortgages are
bound to exercise reasonable diligence to
ascertain whether that power exists.
-
15s49. wentz-Bates Mercantile Company
against Union Pacific Railroad Company.
manded. Fawcett. j..
L Haurigan against Chicago g. North
western Railroad Company, Neb, - III
N. w. 100, reaffirmed and held to be in all
respects decisive of this case.
1883. Watkins against Smith. Appeal,
Douglas. Affirmed.
1850. Bruenig against OShea. Appeal,
Platte. On motion for reheartng. Motion
denied. Lection, j., Fawcett, j., dissenting.
j. Under the provisions of section 176,
chapter %, complied statutes osection 1908
Annotated statutes, 1901, as it stood be-
fore the amendment Of 1907. the heir at
viving husband and wife. is entitled to the
specific articles described therein, whether
the deceased died testate or intestate, or
whether the heir accepts the provision
made for him in the Will. IL any, or not.
Such also is the case with the surviving
SRo3 sss. f'''eher against f'e'eher' LIS NJ
1926 Mercantile Incorporating Co. against
Junkin; Appeal, Lancaster. Affirmed.
/. ''The taxing power vested in the leg
~islature is without limit, except such as
may be prescribed by the constitution IT.
self" State against Lancaster County, 4
Neb., 5S7.
2. "The maxim expressio unius est ex-
clusio alterius does not apply in the con-
struction of constitutional provisions regu-
lating the taxing power of the legislature"
State against Lancaster County, supra.
3. The grant OF a charter to a~corpora-
ton authorizing II to carry on a certain
business, does rot import that II may en-
gage therein without contributing to the
support OF the government by the payment
OF an occupation tax.
4. Chapter q, LawsNNebraska, 1909, is not
obnoxious to section 1 OF article TX, of
the constitution.
1927 State ex rel. Bushee against Whit
more. Original mandamus. Writ al
lowed. Root. j.
1884. Tate & Erhardt against Loney.
Appeal, Pierce. Reversed and remanded
for further proceedings. Root, ].
/. A broker was duly authorized to sell
defendants real estate for $25 per acre,
$1,000 of the consideration to be paid in cash
and the balance. $1,000. payments at 6 pei
cent" A bona fide purchaser was pro-
cured ready. able and willing TO buy the
land at said price; he paid the broker $1,000
and offered TO pay the remainder OF the
purchase price upon the execution of a
deed conveying the Ian to him. Defendant
49, g. H. 81 aAnaA@ AEaA