Omaha daily bee., 1912-01-08

lNhts-IdtIIth against AptlktIs Appeal
from Douslas. Affirmed Root j. Faw-
Cett j., concurrinB separately.
]. "A decision Of this court holding that
a petition states cause OF action Is an
u admitted or proved, cntitle the plain
tiff to the relief demanded. Smith
against Neufeld. Gl. Neb. GJ9.
?. "A judgment will not he reversed for
variance between plaintiffs allegations
and his proof unless IT. clearly shown
TO be material and that the defendant
In making his defense" Wcsting against
c., -. Il Q. r. Co, 81 Neb. G55
3. Where excluded evidence Is not ma
terih unless other proof y made and no
evidence IS received OF offered to estab-
lish that proof, such exclusion will not
Justify reversing judgment of the dis
trict court
i65OO-Martln against Hutton. Appeal
from Dawes. Affirmed. Root. j.
An action for money had and re-
celved will lie TO recover money secured
from the plaintiff without consideration
IN reliance upon fraudulent representa-
tons made by the defendant.
2. "A person IL justified In relying on n
representation made to him In all cases
where the representation Is a positive
statement OF fact, and where an investl-
bhton would be required 10 discover the
trnth. Perry against Rogers g. Neb. S98
q Where a defendant by the use OF
fraudulent representations induces a pro-
posed entrymnn OF government land to
believe that the land he desires has been
enteI ed, but that the defendant will Sc
cure REIMBURSEMENT of that entry IL
paid sum OF money and the money is
paid In good faith upon the strength OF
those representations. the entryman upon
discovering the truth may maintain a
SUIT IN the nature OF an action for money
had and received and will not be required
20 abandon the lana as a condition prece-
dent 10 maintaining the action.
Inc Iaci OF agency may be proved by
circunstantlal evidence.
1870 First National Bank of Buchanan
County against Exchange Bank OF Ong.
Affirmed. Root, J. Sedgwlck and FaW-
cett; j. J., dissenting
1914 Mclninch against Evans. Re-
versed and remanded. Rose, j. I.etton,
j., concurs In conclusion. 'Fawcett, j.,
not sitting.
i7OO9, Hackett against The Alamito
Sanitary Dairy Company. Affirmed. Let
sentlng
i7OlS. Tierney against Oleson. Judg,
ment OF dstric' court reversed: plaintiff s
action ag,lns . defendants. Oleson' anol
CUNNINGHAM, dismissed. actions against
defendants, Security Mutual Life lnsur-
anco company and John Tierney. sr., dis
missed without prejudice. Barnes, j.
Sedgwick. j. dissenting.
1908. Haas against Wellner. Affirmed
Reese, c. j., Rose. j.. dlssents
l70SO, Harding agans. Board of Equali-
zation OF Douglas county. Affirmed,
Root,
i7oSa;, kyner against whlttemore. AZ
iiiis. STATE ex rel. Mckee against
Porter. Affirmed Root j., Letton. j.,
concurring; Sedgwlck j., dissenting
Fawcett j.. concurs in dissent.
lnl9. keezer against state Affirmed.
Following are rulings on motions for re-
het ring:
1879. Gundy against Nye- Schneider -Fow-
Ter company. OVerruled.
l6422. Wilson against Wilson. Motion OF
appellant for rehearing overruled Mo-
ton OF appellee for rehearng oyerruled
l650l. Heink against Lewis. Overruled.
l66lS. Coon against Smith. OveTruled
1880. Storz Brewing company against
Hansen. oral argument ordered ON mo-
ton for rehearng at session commencing
January l5 1912.
1851. Mudra against Greeting. over
ruled.
1884 Blado against Draper. Overruled
lOo2s, koop against Acken. Overruled
u III, as matter OF fact, the agent
was not authorized to make the contracts
and because OF It's assumption of power
10 do so his principal is damaged, he Will
be liable In damages to II.
q But the purchasers and the retail
merchants cannot over their objections
be sued Jointly with the agent because OF
ne transE ctions
leslS, Mckay against State, Error from
Antelope. reversed and Temanded. Faw-
cett, J. Letton, j., dissenting In part
j. An Information IL fatalIy defective
u II charges the commission of the Of
tense as subsequent 10 the date upon
which the inlorinaUon is filed or on an
otherwise impOss. bic date
Z. And in sucn case Il Is error for the
lrlal court, after permitting an amend
ment curing such defect, to require the
accused, over his objection, 10 lmmedi-
ately proceed with the trial, without ar
raignment under and plea 70 the only In
formation filed which stated an offense
without giving him the statutory time IN
which to plead thereto, and before Jury
which had been impaneled under a void
| Information.
3, Where one accused OF a felony is put
| upon trial under an Information void upon
/ It's face. and, after trial begun, the in
FORMATION Is amended and the trial pro-
ceeded with, held, that the accused Is
] time.
o. Under tho provisions Of section 30.
chapter = Compiled Statutes. private
counsel can only be permitted 10 assist I'm
/ the prosecution OF a person charged with
the crime Of felony, when procured by
tne "a &C., county my attorney under the direction
5. And an order by the district court.
al the opening OF the trial, that an at
under the employment Of outside parties,
~ permitted" TO assist Ia the prosecu-
ton, Is not a compliance with the statu-
tory provision
O. And when timely objection is made
by the accused to the participation OF
such private prosecutor In the prosecut on
OF the case, II Is error to Overrule such
l. An accused In criminal prosecution
Is enuued 10 a tr.al upon competent,
relevant evidence; evidence which at leasI
tends TO establish his gdlt or Innocence
aud evidence which has no such tendency
but which, II effective at all. could only
serve TO excite the minds and inriame the
passions OF the jury should not be ad.
mitted.
I.s-s. sOkol against Lee. Motion OIL ap.
sellants 10 advance sustained appellee tI
! serve and nle answer briefs by October
| .. 1911 cause set for hearing al session
commencing November 6, 1911.
lSsA Mcininch against Evans. Motor
4 appellant TO amend briefs sustained
appellant given ten DAYS to file reply
| 0riefs.
lb>t2. Cass county against Sarpy county
Motion OF appellant TO advance sustained
appellant given ten DAYS after service O.
appellees' brief within which 70 serve an,
lie reply briefs; cause set for hearing a
ession commencing November % 1911.
ll254 Ward against Aetna Life Insur
ance company. Motion Of appellant {,
advance sustained. appoilee given unit
ooioher n DiL 10 serve and Me ansWe