Omaha daily bee., 1911-04-30
SUPREME COURT SYLLABI.

SUPREME COURT SYLLABI.
1876. IIurpgeweit against Kirby Appeal
from Madison. Affirmed on condition
Plaintiff remit $500 within thirty days:
otherwise cause reversed and remanded.
Costs in supreme court taxed to plaintiff.
Lection, j. Rose, j., dissenting to the or
der requiring remittitur.
l. The facts set forth in the opinion held
to show a wanton and willful trespass
upon the person of the plaintiff accom-
panied by such circumstances Of aggrava-
ton as justifies the inclusion of mental
suffering, humiliation and disgrace as
ages.
2. Matter in aggravation is something
done by the defendant upon the occasion
OF the commission of the principal tres
pass, which Is of different legal charac-
ter from, but not Inconsistent with, the
trespass
3. Where there is a direct invasion OF
personal rights under circumstances show
ing malice or a willful and wanton dis
regard of anothers right to personal
curlty, the amount of compensatory dam
ages is not susceptible OF exact computa-
ton, and must usually be left to the sound
discretion Of the jury
T. Where, in such case, considering all
the circumstances, the verdict is for such
amount as clearly shows it is the result
Of passion or prejudice, 1t cannot be up
held and remittitur will be required or
trial.
1855 shold against Van Treek. Appeal
from Dawes. Affirmed. Letton, ]. Faw-
cett and Rose, j. j., not sitting
l. An ex parte motion to dismiss an ap-
peal in this court based upon papers not
a part of the transcript, and which have
been filed without leave should not be en-
tertained.
When 1t is sought to show that an
appeal has abated by reason OF matters
happening after the appeal has been per-
fected, the moving party should proceed
by way Of plea in abatement and service
OF notice on the adverse party.
y. HereSay Testimony. which ia incOmDa-
tent, Is not made admissible by reason of
the death Of the person who made the
statement thought to be proved.
Evidence examined an5 held to warrant
a decree In favor of the defendants.
1918. McShane against Cannon. Appeal
from Douglas On motion to dismiss. Mo-
ton overruled. Root J.
II third person, in the presence and
by the request of a county judge. signs
name thus signed is the signature of said
judge.
2. II motion to dismiss an appeal from
a county court for the alleged reason that
the county judges signature to the certifi-
cate attached to the transcript is not
genuine, is overruled by the district court
evidence to the contrary, that the judge
signed said certificate or authorized his
name to be attached thereto.
Although a duly certified transcript OF
the record and proceedings relative to the
matter appealed from is essential to clothe
the district court with authority to review
an order OF a county court distributing
the property of deceased person. yet II
the appellees appear in the district court
and move II TO enter introductory orders,
they should hot thereafter be heard to
question the Buffciency Of the certificate
to the transcript
4. In such case II the transcript con-
tains a copy OF the order appealed from
and the pleadngs of the parties with re-
spect to the subject matter litigated, the
mere fact that some order material
stipulation does not appear in the tran
aaWAWN
from acquiring Jurisdiction of the contro-
versy by the filing of the transcript.
s. II a testator bequeaths sum of money
to his executors to be held In trust by
them for a lawful purpose and the county
court declares that bequest invalid and
directs the money thus bequeathed to be
paid to the testator's heirs, the executors
have such an interest in the order that
they may appeal therefrom.
Petersen against Petersen. Appeal from
Douglas. Judgment of district court dis
things affirmed, and cause remanded with
directions to enter decree for alimony
and attorneys fees in sum of 5000. All
costs taxed to plaintiff Sedgwick, ].
l. An accusation made by a wife against
her husband in which she charges him
with the crime of incest with his daughter
may not in all cases constitute such eX-
treme cruelty as will alone furnish him
with ground for divorce. but when such
repeated, together with other conduct
showing a fixed purpose on her part TO
make II impossible for them to live to-
gether as husband and wife, II may amount
q When a divorce is granted to the hus-
band on any ground except adultery com
United by the wife the court may allow
permanent alimony to the wife out OF the
property of the husband
B. For the reasons stated in the opinion
the decree is modified so as to allow the
wife permanent alimony.
hanika against State Error from Thurs
ton. FaWcett, j. Affirmed
sh TITS 81 2 agSt DID Sur nGt sS
tory one, and unless expressly conferred
does not exist" State against Bethea, S
2 There being no provision in our
statute for an appeal In a contempt pro-
ceeding, a conviction under such q pro
ceeding can only be reviewed in the dis
trict court by the filing in said court OF
petition in error as provided In chapter e.
stuefer against The West Point Milling
company. Appeal from Cunning. Az
firmed- Letton, j., Reese, c. j., and Faw-
/ In order to Justify the Issuance OF an
Injunction TO restrain the owners of q mill
dam from maintaining the dam and from
increasing its height and thus permitting
water to overflow the plaintiffs land, the
evidence OF wrongful acts on the part OF
the defendant must clearly preponderate.
II IL is doubtful WHITTIER the height OF the
dam has been the cause of the Injury or
whether the damage has resulted from
some other cause an Injunction will be de-
MED.
2 Evidence examined and held that the
allegations OF the peutcE have not been
sustained by a preponderance of the proof.
Wade against Belmont Irrigating Canal
and Water Power company. Appeal from
Cheyenne. Reversed and remanded Reese,
c. J.
In an action for damages for the breach
or contract to supply water for irrigat-
ing the plaintiffs lands where IL appears
that the land Is unbroken and practically
unpToductive prairie, IL the plaintiff pre-
walls he can only recover the difference be
81 -HHua =
water according to the terms OF the con
tract and the rental value without such
water. The supposed value of what the
land might have produced had the water
been furnished Is too remote. speculative
and cOnjectural.
state ex rel Sayer against Junkin. Orid-
nal mandamus. Action dismissed at re-
lator's costs Letton. j.
When the provisions of statute pre-