7. The doctrine of comparative negligence has no place in the jurisprudence of this state. It is therefore error to instruct the jury that plaintiff may recover, although guilty of contributory negligence, provided the negligence of defendant was gross, and that of plaintiff slight in comparison.

8. A positive misstatement of the law in an instruction is not cured by a further correct statement in conflict with the first.

9. Expert testimony is incompetent where the subject of inquiry is of such a character as to be within the knowledge of men of common education and experience, and to call for no special skill, knowledge, or experience.

10. A hypothetical question should not be permitted when it only in part calls for the exercise of special skill or knowledge, and for the rest asks the witness to base his opinion on matters within the ordinary experience of

men.

(Syllabus by the Court.)

Error to district court, Cass county; Ramsey, Judge.

Action by William K. Fox, administrator of the estate of Amos Thompson, deceased, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

B. P. Waggoner, James W. Orr, A. N. Sullivan, and C. S. Polk, for plaintiff in error. Matthew Gering, for defendant in error.

IRVINE, C. This is an action against the Missouri Pacific Railway Company to recover damages for the death of Amos Thompson, alleged to have been caused by the negligence of defendant. The case was in this court once before, and a judgment for the defendant was reversed. Thompson v. Railway Co., 51 Neb. 527, 71 N. W. 61. A second trial resulted in a judgment for the plaintiff, and the defendant this time seeks a reversal.

Between the two trials the widow of the deceased, who, as administratrix, brought the action, remarried, and, her powers as administratrix ceasing from that fact, Fox seems to have been appointed as her successor. On Fox's application, a conditional order of revivor was entered, which in due time was made absolute. No amendment of the petition was made nor was a supplemental petition filed, and the case was tried on the original petition, which avers that Mrs. Thompson is the personal representative, and that she sues as such. This course of proceeding gives rise to certain assignments of error, which, as they present questions in limine, should be disposed of before approaching the merits.

The defendant sought leave to file a supplemental answer, alleging the cessation of Mrs. Thompson's powers as administratrix, and leave to do so was denied. It then, by objections to the evidence, sought to exclude proof of Fox's authority and to deny his right. Under our system of practice, where a party dies or his authority as a representative ceases, two methods of revivor coexist. A conditional order of revivor may issue and be served, and the order made final, unless cause be shown against it, or the court

may substitute the new party, and supplemental pleadings may be filed and summons served. Fox v. Abbott, 12 Neb. 328, 11 N. W. 303; Rakes v. Brown, 34 Neb. 312, 51 N. W. 848. If the former method be pursued, the proper method of traversing the claim of the person in whose name revivor is attempted is by showing cause against the absolute order. An issue is thus tendered, and, if the court make the order absolute, that order becomes res judicata as to the right of the person named to proceed with the action, and the issue cannot be again made and tried with the main case. Hendrix v. Rieman, 6 Neb. 516.

It is asserted, however, that there was here no proper service of the conditional order. The manner of service does not appear, unless by inference. The conditional order bears an indorsement of acceptance of service by A. N. Sullivan, attorney for defendant, reserving the right to interpose any objections to the manner of service. The conditional order should be served in the same manner as a summons. Code Civ. Proc. 461. It would seem, therefore, that service upon the attorney of record in the cause would be insufficient. But no one can doubt that an attorney may be authorized to enter a voluntary appearance for his client, and the authority of an attorney at law to appear, where he has actually done so, is presumed. After the absolute order was entered, the defendant filed a motion entitled in the name of Fox as plaintiff, and so recognized the validity of the order. The defect, if there were one, went only to the jurisdiction of the person of the defendant, and was cured by a general appearance without objection. The supplemental answer set up only a fact already determined by the order of revivor, and one no longer issuable. While it would perhaps have been proper to have filed a supplemental petition showing on its face the change of plaintiffs, that fact appeared of record already, it was no longer traversable, and it was not necessary to do so. While the proof made of Fox's appointment was of a fact not in issue, and was hence irrelevant, it could not possibly have been prejudicial to defendant.

The salient facts of the case appear in the former opinion, and will not be repeated. The court gave the fonowing instruction: "You are instructed that, to entitle the plaintiff to recover, the jury must believe from the evidence that the injury and death complained of was occasioned by the carelessness or negligence of defendant or its servants, in the manner charged in the petition; and, if the jury believe from the evidence that the deceased was guilty of negligence contributing to the injury, then, to entitle plaintiff to recover, the jury must further believe from the evidence that the negligence of defendant was gross, and that of the deceased was but slight in comparison with the other; and if the jury believe from the evidence that the negligent conduct of the deceased contributed as much, or nearly as much, to produce the injury and death as that of defendant, or that he was not at the time exercising ordinary care, then the plaintiff cannot recover, and the jury should find for the defendant." This was a plain proposition to the jury, as the law of this state, of the doctrine of comparative negligence. The instruction appears in Sackett on Instructions, with a citation of a case in Illinois as its authority. Such a doctrine once prevailed there, but it has been discarded. It never found any place in the jurisprudence of Nebraska, as appears from an inspection of the numerous negligence cases. Indeed, its correctness has been not only inferentially, but directly, denied. Village of Culbertson v. Holliday, 50 Neb. 229, 69 Ν. W. 853; City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50.

It is argued that the instruction was not prejudicially erroneous because of the last portion, which states that there can be no recovery if plaintiff did not exercise ordinary care. The trouble is that the mischief had already been accomplished by the earlier statement that there could be a recovery in spite of contributory negligence, if the negligence of the defendant was gross, and that of plaintiff slight in comparison therewith. Thus, the jury was set to examining, not the existence of negligence, but the comparative degrees thereof. An inaccuracy or incomplete statement in a charge may be cured by further correct and supplementary statements, but the absolute misstatement of the law cannot be cured by a subsequent correct statement conflicting therewith. The doctrine is familiar.

By a recurrence to the former opinion, it will be seen that a question of fact was presented by reason of certain proof of the undue projection of a bolt from the end of a car and certain bruises on the body of the deceased. It was then thought that there was sufficient evidence to go to the jury, on the theory that this was a negligent construction of the car and the proximate cause of the injury. Apparently, to establish the latter fact, certain hypothetical questions were asked medical witnesses, of which the following is a type: "Assuming that a man about 34 years of age, engaged as a brakeman on a railway train, entered between two cars for the purpose of making a coupling, upon the end of which there appeared to be a stake pocket, being a piece of iron about three or four inches long by three inches wide, and around which there was an iron groove and a band of iron, and adjacent to that a bolt protruded beyond the nut, which has a flat surface, and is about an inch in diameter; that upon the body of the man was found a spot the size of a silver dollar, discolored, dark, and still susceptible to pressure by manipulation, which one of these two instruments (that is, the stake pocket or the bolt) could produce the wound I have described?" Expert testimony is incompetent where the subject of inquiry is of such a character as to be within the knowledge of men of com

mon education and experience, and to call for no special skill, knowledge, or experience. Railroad Co. v. Lawler, 40 Neb. 356, 58 N. W. 968. Possibly, though this we do not decide, the facts may have permitted an inference, based on special medical information and experience, as derived from the character of the wound, but, if so, the inquiry should have been so restricted. As put, the question admitted, and chiefly required, an opinion based, not on such grounds, but formed from the character of the attachments described and their location on the car. These were inferences to be drawn by the jury from the evidence relative thereto. They called for no medical skill or experience; were not the subject of expert testimony. The question, so far as it called for an opinion based on these external physical facts, might be answered by any man of ordinary experience as well as by a physician, and was therefore incompetent. Attention is called to certain cases holding opinion evidence not prejudicially erroneous, but they are not in point. Here an opinion was asked calling for one of the principal inferences to be drawn by the jury, and its effect may have been potent. It is very different from Railroad Co. v. Archer, 46 Neb. 907, 65 N. W. 1043, where the objectionable hypotheses were followed in the question by their own answer, and the opinion of the witness, so far as based on those hypotheses, was thereby eliminated.

The remaining assignments of error relate for the most part to matters covered directly or impliedly in the former opinion. It will be unnecessary to notice them in detail. That opinion should be a sufficient guide, so far as the evidence on a further trial renders the discussion applicable. Reversed and remanded.

SHULL, Coroner, et al. v. BARTON, Sheriff, et al.

(Supreme Court of Nebraska. Nov. 17, 1898.) SHERIFFS AND CORONERS-REPLEVIN-BOND-AP

PROVAL-SURETIES-JUSTIFICATION-LIABILITY OF OFFICER-DEFENSES-ATTACHMENT-EXECUTION -PROPERTY IN CUSTODIA LEGIS-PARTIES,

1. The failure of a coroner to cause the surety on a replevin bond to justify as "bail on arrest," in accordance with section 189 of the Code of Civil Procedure, is not conclusive evidence of the coroner's negligence in approving such replevin bond, nor of his failure to perform an official duty, as that provision of said section was rendered inoperative by the repeal of chapter 1, tit. 8, Code Civ. Proc. (Laws 1887, р. 654, с. 99).

2. A coroner's causing the surety on a replevin bond to justify according to the provisions of such repealed statute is not of itself a protection to him from liability for negligently approving an insufficient replevin bond.

3. Since no statute exists prescribing before whom the surety on a replevin bond shall justify, nor what facts shall be made to appear to protect the officer in approving the bond, it follows that, when the sureties on a replevin bond are excepted to, the officer approves the replevin bond at his peril.

4. That an officer acts in good faith in approving a replevin bond will not of itself protect him from liability for negligence in the premises.

5. If an officer negligently approve a replevin bond signed by insolvent or insufficient sureties, and damages result, he is liable.

6. If the bond when approved is good, subsequent insolvency of the surety will not render the officer liable.

7. The mere taking by an officer of the affidavit of the surety on a replevin bond that he is the owner of real estate situate in the county where the replevin action is pending, not exempt from execution, and of twice the value of the replevied property, will of itself not protect the officer from liability, if the bond proves insufficient.

8. The officer. before approving the replevin bond, in the absence of his own knowledge, should make such investigation and inquiry concerning the financial standing and solvency of the surety as a reasonably prudent man would make before extending credit to the surety to the amount of the bond.

9. Evidence examined, and held to establish that a coroner was guilty of negligence in approving an insufficient replevin bond.

10. Where a creditor attaches personal property as that of his debtor, and it is taken in replevin from the sheriff and delivered to the claimant, the statutory bond being given and approved, and the creditor pending the replevin suit causes the same property to be taken on execution for the same debt for which he had attached it, such seizure of the property on execution is a defense for the coroner in a suit against him by the creditor for negligently approving an insufficient replevin bond.

11. In such a suit the creditor cannot be heard to say that the seizure of the property on execution was void.

12. When attached property is replevied and delivered to the claimant, and the replevin bond required by statute is given and approved, then that property pending that replevin action cannot be lawfully taken by attachment or exесиtion at the suit of the plaintiff who has attached it.

13. In such a case the replevin bond takes the place of the property, and the party who has attached it must follow the replevin action to final judgment, and if successful, and the property be not returned, satisfy his judgment by execution, and, failing in this, look to the replevin bond for indemnity, and, if this proves worthless, to the official bond of the officer, for negligently approving an insufficient replevin bond, if such was the fact.

14. A sheriff, from whom attached property has been replevied, on the termination of the replevin suit in his favor, and the return unsatisfied of an execution issued on the judgment, cannot maintain an action against the officer who served the replevin writ for negligently approving an insufficient replevin bond, whereby the creditor for whom the sheriff acted lost his debt.

15. In such case the creditor, and not the sheriff, is the real party in interest.

16. In such case the sheriff might maintain an action on the replevin bond, as he is the obligee named therein, and trustee for the attaching creditor.

17. Two or more creditors, who have lost their several claims against a debtor and their attachment liens against his property, because an officer negligently approved an insufficient bond in a replevin suit, by which the attached property was taken from the sheriff holding the writs of attachment, cannot join as plaintiffs in a suit against such coroner for damages for negligently approving such replevin bond.

(Syllabus by the Court.)

RAGAN, C. Henry B. Shull and others have filed a petition in error here to review a judgment of the district court of Saline county recovered against them by John Barton and others. To a proper understanding of the points decided here, it is necessary to make a statement of some of the undisputed facts disclosed by the record: The plaintiff in error Shull is the coroner of Saline county.

The other plaintiffs in error are the sureties on his official bond. In July, 1891, a co-partnership, under the name of Foster & Ayers, was conducting a mercantile or drug business in Dewitt, in said county. On that date Coe & Co., Brittain-Smith & Co., the Midland Coffee & Spice Company, Funke & Ogden, Raymond Bros., the American HandSewed Shoe Company, and one Warren Ayers (all of which parties will hereinafter be denominated the "seven creditors"), each brought a suit against Foster & Ayers in the county court of said county, and each caused a writ of attachment to be issued and placed in the hands of the sheriff of said county. The sheriff by virtue of these several writs of attachment seized the mercantile stock of Foster & Ayers. Thereupon one Lafayette M. Foster and Jennie A. Foster, his wife, doing business as Foster & Co., brought a repleviń action against the sheriff for the goods which he held under the attachment writs; and by the process issued in that action all the goods held by the sheriff were taken and delivered to Foster & Co. The coroner (plaintiff in error here) executed the replevin writ. The sheriff, who was made sole defendant in the replevin suit, gave notice to the coroner of exceptions to the sufficiency of the sureties who had signed the replevin bond of Foster & Co.; and thereupon the surety who had signed the replevin bond made affidavit that she was a resident of Saline county; that she owned real estate therein not exempt from execution of the value of $2,500. This affidavit the surety delivered to the coroner. Indeed, it was sworn to before him, and he at once approved the bond or undertaking in replevin. About the 1st of August of said year the seven creditors obtained judgments in the county court on their claims against Foster & Ayers. The county judge issued executions upon these judgments, or some of them, and they came into the hands of the sheriff, and he at once levied them upon the same property which he had attached, and which had beent replevied and delivered to Foster & Co.; and The goods were again, by an action of replevin, taken from the possession of the sheriff. When the sheriff levied the exесиtion upon the mercantile stock, the replevin action brought by Foster & Co. was pending and undecided. This replevin action proceeded to trial, and the sheriff had judgment for a return of the replevied property, or its value in money. The replevied property was not returned. The sheriff caused an execution to be issued upon his judgment, and this was returned wholly unsatisfied. The sheriff and the seven creditors then brought this action to the district court of Saline county against the coroner and the sureties on his official bond. For cause of action they set out the claims of the seven creditors against Foster & Ayers; the seizing of the latter's property by writs of attachment; its having been taken from the sheriff on the writ of replevin in favor of Foster & Co.; the approval of the undertaking in replevin by the coroner; the reduction of the claims of the seven creditors against Foster & Ayers to judgment; that the judgments were wholly unpaid; the prosecution of the replevin action to judgment in favor of the sheriff; the return of an execution issued on such judgment unsatisfied; the insolvency of Foster & Co. and the surety on their replevin bond as a reason why they had not brought suit on said bond, and averred that at the time the coroner approved of the replevin bond the surety thereon was then and there insolvent, and that the coroner negligently approved said bond, by reason whereof the said seven creditors had lost their liens upon the attached property, and lost the full amount of their claims against Foster & Ayers. On the trial in the district court the coroner and his sureties demurred to the petition of the sheriff and the seven creditors on the ground that there was a defect of parties plaintiff, and that several causes of action were improperly joined in the petition. This demurrer was overruled, and the coroner and his sureties then filed an answer to the petition, in which, among other things, they averred that there were several causes of action improperly joined in the petition, and that there was a misjoinder of parties plaintiff. On the trial the coroner and the sureties offered in evidence the executions already alluded to, which had been issued by the county court in favor of the seven creditors against Foster & Ayers, and offered to show that the sheriff had, by virtue of these executions, seized the same property which the seven creditors had formerly attached as the property of Foster & Ayers, and which had been taken from the possession of the sheriff in the replevin action. The record presents but three questions which we deem it absolutely necessary to notice:

1. It is contended first in behalf of the coroner that the uncontradicted evidence shows that he acted in good faith in approving the replevin bond, and that he is not liable sim

ply for negligence. The evidence is undisputed that the sheriff duly notified the coroner that he objected to the sufficiency of the surety on the undertaking in replevin; that the only inquiry or effort which the coroner made to ascertain if that surety was sufficient was that he took and relied upon the surety's affidavit filed with him, in which the surety stated that he was the owner of real estate in the county, not exempt from execution, of the value of $2,500; that the averments of this affidavit were absolutely and unqualifiedly false. But the evidence does not show that the coroner acted in bad faith in approving this undertaking. It does show beyond peradventure that he was guilty of negligence in the premises. Section 189 of the Code of Civil Procedure provides that, when an officer is notified by a defendant in replevin that he excepts to the sufficiency of the sureties on a replevin bond, then the surety must justify in the same manner as "bail on arrest." At the time this provision of the Code was adopted there was in force in this state a statute which permitted the arrest of a defendant in a civil action for debt; that the defendant so arrested might at any time before judgment be released by causing one or more sufficient bail to execute an undertaking to the plaintiff to the effect that, if the judgment should be rendered in the action against the defendant, he would render himself amenable to the process of the court. The statute further provided that the plaintiff might object to the sufficiency of the bail given, and that, if he did so, the sheriff should require the bail to justify. The statute further provided that the bail should justify by appearing before a proper officer at the time and place mentioned for examination by him under oath touching his sufficiency as bail, in such manner as such officer might think proper. It seems to have been the purpose and intention of this statute that the sheriff should not be liable for having taken an insufficient bail, provided it justified as required by the statute. In other words, if the officer before whom the bail appeared for justification approved it, this was a protection to the officer. See Gen. St. 1873, p. 547. But this statute was repealed by the legislature of 1887. See Sess. Laws 1887, p. 654. Since no statute exists in this state authorizing the arrest of a defendant in a civil action for debt, the provision of section 189 of the Code, which provides that the surety in a replevin bond must justify in the same manner as bail on arrest, is meaningless. Neither the common law nor the old English statutes permitted a sheriff to admit to bail one arrested in a civil action for debt, and exonerate himself from liability to the plaintiff for the escape of the defendant by having the bail for the defendant justify. But the rule at common law was that if the defendant, after being arrested, was admitted to bail by the sheriff, and then failed to appear, the sheriff and the sureties on his official bond