THE OMAHA DAILY BEE: SATTODAY. JUNE 23, 1906
. . ())
f V
The Uncle, Remus of Fiction
JJoeS Chandler Harris'
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In Next Sunday's Bee
k New Colored Supplement Feature
Beginning on June 24, Uncle Remus will tell one
of his inimitable stories a week in the comic sec
tion of this paper. He will undoubtedly give some
of the choicest stories to the supplement, and in them
will figure such old friends as Br'er Rabbit, Br'er Fox
and Br'er Wolf. Pictoriallv the stories will be inter
preted by. J. A. Conde. The feature will take up a
whole page and will be in colors.
The children will find Uncle Remus
great fun. Older folks will be de
lighted with his quaint humor.
s 1
Look for Uncle Remus in The Sunday Bee.
Brer. Rabbit, Uncle Remus' Favorite
Creetur
1 1
"?mmmmm ' """ 1 '" - . . .... . - 1 . I' - I i I - i.i.i . -. n ',
SUPREME COURT SYLLABI
In re application of Eugene Burton for
admission 10 the bar. Motion ror admls
aion uslaind. Sedgwick, C. J.
1. Section of chapter Hi of the Revised
Statutes of te win not repealed as a
whole by chapter vi. Laws of is, but the
power of the district court to admit at
torneys of other stales to practice in this
slate was taken away by that act. In re
Admission to the Bar, 61 Neb., 58, 81 N.
W . 611. distinguished.
1396X Central Uranarles Co. against Ault.
administrator. Error from Guge. On mo
tion for rehearing, former opinion modi
fied. Motion for rehearing overruled.
Duffle, C. Division No. II.
14U04. Westertleld against South Omaha
Loan nnd Building Association. Error from
Douglas. Motion for rehearing overruled.
Sedgwick, C. J.
1. The statute, prior to the recent amend
ment, allowed the supersedeas of a decree
confirming a sale upon foreclosure of mort
gage by giving a waste and cost bond only,
and the purchaser at sucii sale could not
recover for the use of the premises while
the order of confirmation was so super
seded pending an appeal, even though the
appeal was voluntarily dismisses by the
appellant,
14104. Nichols & Shepard Co. against Mil
ler. Error from Stanton. Tteversed nnd
remanded. Epperson, C. Division No. 1.
1. Instructions examined and held er
roneous. 14146. In r Estate of Callsta E. Scott, de
ceased. Brown against Harmon. Krror
from Lancaster. Motion for rehearing
overruled. Sedgwick, C. J.
1. When the next of kin disagree! as to
the selection of an administrator, and the
court appoints one requested by ono of
the next of kin. it will not be presumed
upon sppeal. In the ubeence of any evi
dence upon that point In the rec;:rd, that
the court has anusea us discretion in mak
ing the appointment.
14U9. Jordan against Jackson. Error,
from Dakota. On motion for rehearing,
former Judgment of this court and decree
of district court vscaied and cause re
manded with directions Motion for re
hearing overruled. Jackson. C. Division
No. 3.
141fi. Branson agslnst Branson. Appenl,
from Hamilton. Affirmed. Ames, C Di
vision No. 1.
V, An agreement between the parties to
pending suit for a divorce for the col
lusive rendition of a dcree therefor will
defeat the action, and it Is Immaterial that
.ons of the parties may have supposed such
agreement to be free from legal or moral
wrong.
1417Z. Cliek against Cixek. Error from
Lancaster. Affirmed. Oldham, C. Division 1
No. 1. I
1. Jurisdiction relative to divorce ana ali
mony is given by statute and every power
exercised by the court with reference
thereto must look for Its source in the
statute or it does not exist. Click against
Clr.ek. Neb., 99 N. W., 3, followed and ap
proved.
i. Cnder section tJ, chapter xxv, Com
piled Statutes, the district court lias a con
tinuing power, after a decree of divorce snd
alimony has been granted, to review and
revise the provisions for alimony at its
subsequent terms on petition of either of
the parties.
3. If the decree of the trial court award
ing alimony In a divorce proceeding Is void
for want of Jurisdiction, the court may, at
a subsequent term, award suitable alimony
upon application and a sumcient snowing.
14195. County of Lancaster against Whe
don. Error from Lancaster. Reversed and
remanded. Haines, J.
1. Where a taxpayer appeals from the ac
tion of the Board of Equalisation In the
matter of the assessment of property for
taxation, the burden is on the appellant to
show that the decision of the board is er
roneous. 2. The statement of a witness that he
would not have Increased the, assessed valu
ation of the real estate of a certain precinct
or ward, and that such increase did not
tend to equalize the values of real estate
throughout the city, without stating any
facts as a basis for his opinion. Is not suf
ficient to overthrow the Judgment of the
Uoard of Equalisation.
a. Where the value of property, as re
turned by the assessor, as to an entire pre
cinct is relatively too low. It may be raised
by the Board of Equalization without notice
previously given to property owners.
4. The statute requires no formal finding
by the Board of Equalisation as a basis for
Its action In equalizing assessments be
tween precincts, and a finding that it is
necessary to a just and proper equalization
of the assessments of the various precincts
and wards of a county that the aggregate
asuessment of certain preclncta and wards
be raised, and that others re lowered, is
sumcient to sustain an order equalizing
such assessments.
14L89. Brown against the Chicago, Rock
Island it Psclflc Railway Company. Error
from Ijincaster. Affirmed. Ames, C. Di
vision No. I.
If a creditor to whom two persons are
obligated, one as principal and the other
as surety, release the former he also dis
charges the latter, snd the same principle
is applicable when the person released Is
as to the creditor, a surety only, if he Is
known to le ultimately liable' to the party
not formally discharged. The creditor can
not Intentionally deprive his debtor of his
Indemnity and still hold him to his obli
gation. 14.IS8. 'British American Insurance Com.
pany against Columbian Optical Company,
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Error from Douglas. Reversed and re
manded. Epperson, C. Division No. 1.
Evidence examined and held Insufficient
to sustain the verdict.
14210. Stale aguinst McCrlght. Original.
Dismissed at cost of plaintiff. Sedgwick,
C. J.
14211. State against Jensen. Original.
Dismissed at cost of plaintiff. Sedgwick,
a. j.
14:12. State against Anderson. Original.
Dismissed at cost of plaintiff. Sedgwick,
a. j.
14113. State against Sinclair. Original.
Dismissed at cost of plaintiff. Sedgwick,
f!. J.
14214. State against .Nelson. Original.
Dismissed at coat of plaintiff. Sedgwick,
C. J.
14215. State against Hedlund. Original.
Dismissed at cost of plnfntlff. Sedgwick,
C. J.
14216. State against Rlalr. Original. Dis
missed at cost of plaintiff. Sedgwick, C. J.
14217. State against I.aprath. origlnol.
Dismissed at cost of plaintiff. Sedgwick,
c. j.
1. By the act of 1R75, entitled "an act
authorizing patties on school lands se
lect! in lieu of sections 16 nnd 36 to pur
chase the same when the state acquires
title," Compiled Statutes, 1WT, pane 1029.
section 4, persons who complied with the
act hud a preference right of purchase
or lease of land known as indemnity school
land, and bad title to the Improvements
n.ade by them thereon.
2. Occupants of indemnity school lands
who had complied with the act of 1873
before the repeal thereof were entitled to
have the land appraised' separately from
the Improvements, and to be given an op
portunity to lease the land upon such ap
praisement before being ejected there
from. 8. The fact that the occupant of In
demnity school land has attempted to make
entry thereof under the homestead laws of
the United States and lias In good faith
contested the right of the state to the
same as Indemnity school lands will not
estop him to assert his right under the
act of 1875 relating to the improvements
of actual settlers upon lands so obtained
ciy tne state.
14&2. Chicago. Burlington Qulnry
Railroad Company against llealy. Error
from Douglas. Reversed and remanded.
Ames. C. Division No. 1.
A suit by an administrator of a deceased
employe of the Chicago, Burlington
ijuincy Railroad company, who was a
member of the relief department of that
company, to recover damages under the
statute for wrongfully or negligently
causing the death of such employe Is a
bsr to a subsequent action upon the mem
bership certificate In said department when
he administrator Is the same person
named as beneficiary In the contract.
14:9. Hahn against Bon"?v.:;i. Appeal
from Incaster. Reversed with directions.
Albert, C. Division No. 2.
1. In an action to foreclose a mechanic's
lien for labor performed on a building
under a contract, relief will not be de
nied the plaintiff because of a trifling
omission In the performance of a contract,
where there has been a substantial per
formance on his part.
2. Evidence examined and held to show
a substantial performance on the part ofl
me piainnrr ana sumcient 10 tiuiiit nun
to the relief granted.
S. Evidence, as between the owner and
a defendunt lien holder, examined and held
sufficient to Justify a finding In favor of
the latter for a greater sum than that
found by the trial court.
4.- A mechanic's or material msn's Hen,
duly filed within the time required by
law, takes precedence over a mortgage sub
sequently executed by the owner.
143oo. Van Burg against Van Fiigen.
Error from Iancaster. Affirmed. Epper
eon, ". Division No. 1.
1. In an action to recover an amount
alleged to be due upon a verbal contract
the burden of proof Is upon the defendant
to prove that plaintiff s cause of action
was barred by the statute of limitation,
when that defense Is at issue.
2. The trial court's Instructions and rul
ings denying Instructions requested. ex
amined and held without error.
. The rulings of the trial court on the
admission and rejection of evidence offerod
examined and found not erroneous.
1416. Walters against City of Omaha.
Appeal from Douglas. Reversed. Jackson,
C. Division No. 2.
1. Where a city. In the erection of a public
work, exercises reasonable care and Judg
ment and adopts plans approved and recr iu
mended by engineers having all the knowl
edge that skill and experience In such work
would naturally give them. It should not be
held liable la damagee on account of an
alleged defect In the plan, unless the con
struction Is so manifestly daiiruu that
all reasonable minds must agree that 1 was
unsafe.
H7. Lahrinan against Bsuman. Appeal
from Holt. Affirmed. Albert, C. Division
No. 1.
1. In an action by the Indorse arslget the
msker. hre fraud in the inception if the
note U reiitd upon as a defease aa4 ebowB
by the evidence, the burden is upon the
plaintiff to show that he Is a bona fide
holder.
14369. Farmers and Merchants Bank
against Carlson. Appeal from Polk. Af
firmed. Duffle. C. Division No. 2.
1. Evidence examined and held to support
the Judgment of the district court.
143b6. Isaac against Halderman. Error
from Pawnee. Affirmed. Duffle. C. Divi
sion No. 2.
1. A testator, being unable to write his
own name, said to the draftsman of his
will. In the presence of two witnesses, "You
know I cannot write you will have to sign
It for me." Held, that this was a sufficient
request to authorize the draftsman to sign
the testator's name.
2. Non-expert witnesses called upon the
question of the mental capacity of a testa
tor must state the facts upon which their
opinion of Incapacity Is bused.
3. Evidence examined and held Insufficient
to show either mental Incapacity or unduo
Influence.
14Sii7. First National Bunk of Humboldt
against Helm. Appenl from Richardson.
Affirmed. Duffle, C. Division No. 2.
1. A party went to the banking house of
the defendant bank to make a time de
posit and asked the president of the bank
what Interest they were paying on money.
His own testimony Is to the effect that lie
asked the party what amount she had and
how long It would be left. The reply was
about $1,600, to be left for six months. He
replied, "The bank Is paying S per cent,
but since you have come up here so far
I will pay you 4." The party then handed
him an eastern draft for an amount ex
ceeding 1.6ii0. and he wrote out and re
turned a time check for the amount pay
able at the bank In six months with inter
est at 4 per cent. This time check was
signed by the president in his individual
capacity and It oontamew norulng to Indi
cate that the money .was deposited with
the bank or that the bank assumed any
obligation for Its repayment. Held, that
the depositor might recover from the bank
In an action for money had and received.
14368. Lincoln Traction Company against
Mccarty. Error from lancnster. Ainrmea.
Epperson, C. Division No. 1.
1. Wl.cn a given slate of facts Is such
that reasonable men may fairly differ upon
the question us to whether there was
negligei.ee or not. the determination of the
matter is for the Jury.
14371. Citizens' Bunk of Stanton against
Emley. Appeal from Stanton. Affirmed.
Ames, C. Division No. 1.
1. A trial Judge does not commit preju
dicial error by refusing to strike from a
reply allegations of new matter already
embraced In the Issues raised by the pe
tition nnd answer and therefore admissible
In evidence without further pleading.
2 Wlere the issue Is as to whether a
certificate of deposit was lusued against a
depoali In a lank and the general verdict
Is for the plaintiff, based upon his denial
mat siicn instrument ever exisiea. ma
court tieed not requite indemnity against
aucb alleged outstanding instrument.
J. A cross-examination should be confined
to th subject matter of the examination
in chief.
lii'.i. AViigley against Farmers and Mer
chants State Bank of Beatrice. Appeal
from Gage. Affirmed Jackson, C. Di
vision No. 2. lttun. J.. not silling.
Where the holder of a bank draft
neither demands payment of the bank .m
which It Is drawn or takes any other step
to secure payment within five years from
the time it came Into his possession his
right of action against the bunk issuing
the draft because of the failure of the
bank on which it was drawn to pay the
san.o when It was presented is barred by
the statute of limits itutis-
14176. The Byron Reed Company against
Klauhunde. Appeal from Douglas. Af
firmed. Oldham, C. Division No. 1.
1. A purchasor of real estate, who takes
by quitclaim dred. takes subject to all ex
isting equities against the grantor.
2. The county court has original Juris
diction in the probate of a will and its
order admitting a will to probate Is con
clusive unless by a direct proceeding, by
appeal or otherwise. It is reversed. Ioose
more against Smith, 12 Neb., 343, followed
and approved. ,
S. Where a trust Is created for the sup
port and maintenance of the beneficiary
neither the trustee nor the beneficiary has
the power to assign or mortgage the trust
elate, without such power, is expressly
conferred in be Instrument creating the
trust.
14.r7"2. Kearney County against Chicago,
Burlington Ciutney Rail say Company.
Appeal from Kearney. Affirmed. Jackson,
C. Division No. 2.
1. In an action for damages for negli
gently setting out a hie. the origin of
the tire may be proven by circumstantial
evidence.
1 Evidence examined, and held, that the
clrcurrrtajices proven are sumcient to sus
tain the verdict of the Jury as to the
origin of the fire, by reason of which the
plaintiff sustained damages.
14U79. Salisbury against Press Publishing
Company. Appeal from I-aiea.tr. Af
nime'1 Albeit, i '. I'n l.lon No. 2.
t V'tlwyr it la the 4jy of an em-
plover to use reasonable care that the tools
and appliances which he furnishes his
employes are reasonably fit and safe for
the use for which they are furnished; but
this does not relieve the employe from the
exercise of his own Judgment -In the use
thereof, and If he puts them to a use for
which they are not designed or furnished
or subjects them to a strain beyond their
capacity to bear and Is injured In conse
quence the employer, In the absence of
special circumstances, Is not liable.
Standard Distilling and Distributing Com
pany against Harris, 106 N. W.. Neb., 63.
2. The statute requiring Instructions to
the Jury to be in writing Ijas no applica
tion to a inandutory direction to return a
verdict In favor of one of the parties to
the' litigation.
3. On the facts stated, held that the
trial court properly directed a verdict for
the defendant.
144j. Whedon against County of Lan
caster. Appeal from Lancaster Affirmed.
Barnes, J.
The statutes of this state make no pro
vision for an appeal from the order of the
county board in making the ihx levy pro-
, . . i... .. . i . . .. i , r. r'rttiVifv'. in.
Kit-o i u ti j . . .,.., . . - -
notaied Statutes, 1903. and an attempt to
npn.bf.iit, aneh nn anneal confers no Juris
diction on the district court to review such
order.
14092. Parker against State. Error from
Thurston. Reversed and remanded.
Barnes, J .
Instructions to the Jury must be made
upon and applicable to the evidence, and
where, in the trial of a criminal case an
Instruction Is givn without testimony to
sustain it and prejudice results thereby, a
new trial will be granted.
14613. State against DHlley. Error from
Douglas. Affirmed, Letton. J.
The provisions of a penal statute will
not be extended by construction so as to
apply to persons not clearly within Its
''uR"? State, ex relator Thomas, against
Board of Fire and Polio- Commissioners.
Appeal from Douglas. Reversed and re
manded, Sedgwick, C. J. Letton, J., con
curring separately.
1. lpon contests of applications for liquor
license, the board hearing the contest Is
not bound by the stipulations of the parties
providing a method of taking and tran
scribing the evidence not prescribed by
statute, and Involving greater expense In
reducing the evidence to writing than is
necessarily Incurred In the manner of trial
contemplated by statute. If the evidence
Is taken puruuant to such stipulations, the
board will not be compelled by mandamus
to reduce the evidence to writing In the
manner provided for by such stipulation of
the parties without payment of the extra
expense of so doing made necessary by the
unusual manner of taking the evidence.
(Ltttton, J., dissents.)
2. An appeal from the decision of the
board In granting a liquor license Is taken
by giving notice of Intended appeal, and
procuring a transcript of the record of the
proceedings before the uoard, nnd nnng
the same In the appellate court. When
such appeal has been taken the court may
compel the board to furnish a duly oerti-
nea transcript or the new evidence taken
before the board upon the hearing. A
peremptory mandamus to compel the board
to reduce the evidence to writing and file
the same In the office of the board Is not
necessary.
3. A party desiring to appeal from the de
cision of the Board of Fire and Police Com
missioners of Omaha granting a liquor
license Is entitled to a certified transcript
of the record of the proceedings before
such board upon demand and the payment
of reasonable fees lor making such tran
script. The board Is not required to furnish
such transcript without the payment of
fees therefor.
14.". In re application of Schwarting for
writ of habeas corpus. Application for
writ of habeas corpus denied. Letton, J.
1. The provisions of chapter Ixxxil, Ses
sion Laws of 1906. section 9650a to 96a0h.
Cobbey's Annotated Supplement, 1905, known
as the dipsomaniac law, are in pari ma
teria with other laws providing for the
detention, care and discharge of persons
committed to the Hospital for the Insane,
and must be construed In connection therewith.
2. A person who has been confined In the
Hospital ror the insane under tne provi
sions of said act until he has been cured,
mny not be subjected to further restraint
without new cause.
3. Section 7 of chapter Ixxxli. Sessions
Ijiws of 19U6. section 9660a to ihioOh, Cob
bey's Supplement. 1905 held, unconstltu
tlonal as in violation of the right to per
sonal liberty.
1431H. Foster against ' Murphy. TCTror,
Douglas. Affirmed. Albert, C. Division
No. 2.
1. An order of a probate court, requiring
one who had formerly been administrator
of an estate to turn over to his successor
certain money, claimed by the former to
have been given to him as a gift from the
Intestate, but by the latter, that It came
to htm as administrator of the estate, is
appealable to the district court.
2. Evidence examined and held sufficient
to sustain a finding that the money in
question had come into the hands of the
former administrator personally as a gift
by the intestate, and not as a part of the
assets or tm esiuie.
3. The Interest of the former admlnls
trator's wlf In the result of such contest
Is not a direct legal Interest, within the
meaning of the statute which prohibits a
person from testifying to any transaction
or conversation had with a deceased person
where the adverse party is the representa
tive of such deceased person.
4. The endorsement and delivery of a
certificate of deposit, with the intention
of making a gift uf the deposit thereby
represented to the party to whom the
certificate is thus delivered, operates as a
gift of the fund Itself.
14664. State, ex relator Mickey, against
Selleck. Original. Peremptory writ al
lowed. Sedgwick,' C. J.
1. I'nder section 2 of the laws of 1881
as amended by sections 6, chapter Ixii,
laws of 1899, state officers, living In Lincoln
during their terms of otflee, may send their
children of school age to the public schools
of the Lincoln district without paying tui
tion, even though they retain their V'gal
residence elsewhere.
2. If a family, or the person or persons
having the legal custody and control of
children of school age, remove to and live
In a school district other thun the district
of their legal residence, ami such re
moval Is not for the purpose of obtaining
school privileges, but Is principally from
other motives, such children are entitled
to free school privileges while so living In
the district.
14304. Modern Woodmen of America
sgalnst Talbot. Error, Polk. Reversed and
remanded for dismissal. Jackson, C. Divi
sion No. 2.
1. A life Insurance certificate Issued by
a fraternal benefit society, which provides
that if the member should engage In an
occupation prohibited by the bylaws of the
society the certificate should become Ipso
facto void as to any claim on account of
the death of the member traceable to em
ployment In such hazardous occupation,
does not become void for all purposes In
case the member engages In a prohibited
occupation, but the society is exempted In
such ca.se from all liability on account nf
the death of the member by accident di
rectly traceable to such prohibited employ
ment, and the certificate remains in full
force except as to the hazards of such
occupation.
2. The society is not estopped from In
sisting upon Its exemption from liability
for the death of the member due to his
engaging in a prohibited ocruputlon, by
accepting his dues and assessments, wlili
knowledge that he had entered upon such
occupation.
3. In such case the same consideration
remained for fh payment of dues and
assessments as would have existed had th
member not engaged In a hazardous and
prohibited occupation.
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