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kind was made in the district court. On the by John F. Gill, between whom and plaintiff's contrary, the plaintiif presented its case up- there existed a controversy as to who had the on the theory that the transaction was fraud- better right; that defendant entered into negoulent, because made without a legal consid- tiations with Gill for the purchase of his intereration, and to defraud the creditors of J. est, and that this fact was known to plaintiffs; W. Wells & Co. That a ground for relief that plaintiff's encouraged him to buy the incannot be urged for the first time in this terest of Gill, and one of plaintiffs, to enable court is well settled. It is also settled in the defendant to make a payment on such purthis state that partnership property may be chase, became his surety at the bank to the used, with the assent of all the partners, in amount of $1,500, of which amount, with the the payment of individual debts of the part- knowledge and acquiescence of said plaintiff, ners. Smith v. Smith, 87 Iowa, 93, 54 N. W. $1,000 was paid to Gill in consideration of 73; Sylvester v. Henrich, 93 Iowa, 489, 61 his conveyance of his interest to defendant; V. W. 912. See, also, City of Maquoketa v. that defendant, after his purchase, made valWilley, 35 Iowa, 323; Johnston v. Robuck, uable and lasting improvements on the prop104 Iowa, 523, 73 N. W. 1062. The evi- erty, with the knowledge and assent of plaindence fails to show that the plaintiff has any tiffs; and that he would not have purchased right to the property in question. The judg- or improved said property, if he had not, by ment of the district court effectuates justice, plaintiffs, been encouraged so to do. If the and it is affirmed.

evidence sustained the contention of defendant, his defense of an estoppel was established, under the rule laid down in Gillespie v. Sawyer, 15 Neb. 536, 19 N. W. 419. Plain

tiff's met the question of estoppel by a denial LYDICK et al. v. GILL et al.

of the facts alleged by defendant, and there (Supreme Court of Nebraska. Dec. 8, 1898.)

was evidence which would justify a jury APPEAL-REVIEW --CONFLICTING EVIDENCE.

in finding for either party. Under such cirQuestions of fact determined upon fairly

cumstances, the verdict of a jury will not be conflictin evidence by a jury will not be re

disturbed upon error proceedings in this examined in error proceedings in the supreme

court. court. (Syllabus by the Court.)

It is insisted, however, that there was error

in the admission of evidence with respect to Error to district court, Burt county; Powell,

certain matters,-for instance, some of the Judge.

Action by Hiram Lydick and Jonathan Ly. acquiescence upon which defendant relied in dick against John F. Gill and David Deaver.

his acquisition of title was the sole act or

utterance of Hiram C. Lydick, one of plainJudgment for defendants, and plaintiffs bring

tiffs; the other plaintiff, Jonathan Lydick, beerror. Affirmed.

ing absent. There was testimony, however, H. E. Carter, for plaintiffs in error. Davis

to the effect that Jonathan Lydick had pre& Howell.and S. H. Cochran, for defendants

viously said to defendant that Hiram was in error.

acting for him, and that whatever arrange

ment defendant would make with Hiram RYAN, C. This was an action of ejectment would be satisfactory to Jonathan. More. brought by plaintiffs in error in the district over, there was testimony to the effect that court of Burt county. Originally, John F. Gill Jonathan actually knew that defendant was was the defendant. During the pendency of engaged in making improvements upon the the action, however, David Deaver, who had property, and made no objection to his admeantime purchased the interest of Gill, was, verse rights thereby asserted. The estoppel by stipulation, substituted as defendant. There pleaded, in its nature, depended largely upon are combated in argument the rights of Dea- the existence of facts logically to be inferred ver as a purchaser in good faith, but it is from the conduct and language of plaintiffs; unnecessary to consider this question, for the and it was therefore unavoidable that much district court, in its instructions, followed the of the testimony should be indirect in its theory for which plaintiffs are now contend- nature,-for instance, there was testimony ing. The subject matter of the controversy that it was at different times stated by Jonawas a strip of land formed by accretion along than that Hiram was the sole manager of all the Missouri river, adjacent to lots 1, 2, 3, the property in which both were interested. and 5 in section 13, township 21 N., range 11 It would be unprofitable to describe these E. of the sixth P. M. In effect, the court in- matters of complaint in detail, and it must structed the jury that plaintiffs were the own- suffice to say that, while the circumstances ers of this accretion, and entitled to the pos- sought to be established did not directly bear session thereof, unless the acts of estoppel upon the superior right of either claimant pleaded by defendant had been established by to the land in controversy, there was none a preponderance of the evidence; and in this which did not indirectly tend to throw light connection the elements of an estoppel were upon the issues to be determined by the jury. fully stated. In general terms, the facts upon The questions to be determined were for the which defendant relied as sufficient to show an most part questions of fact, and these were estoppel were that the property was claimed submitted to the jury under instructions as Re


to which counsel have failed to point out by the certificate of the clerk of the distries any objection. The judgment of the district court. court is affirmed.

(Syllabus by the Court.)

Error to district court, Douglas county; FerIRVINE, C., not sitting.

guson, Judge.

Action by John F. Coad against Ellen T. Barry. Edward B. Callahan intervened.

Judgment for defendant, and plaintiff and inGAMBLE et al. v. BUFFALO COUNTY. tervener bring error. Affirmed. (Supreme Court of Nebraska. Dec. 8, 1898.) Martin Langdon, for plaintiffs in error. MaJUDGMENT IN VACATION-Validity.

honey & Smyth and Chas. W. Haller, for deA district judge is without authority to fendant in error. render in vacation a money judgment. Consent of parties will not confer such authority. (Syllabus by the Court.)

IRVINE, C. The assignments of error in

this case—at least, so far as attention is called Error to district court, Buffalo county; Ne

thereto in the briefs-relate to the sufficiency ville, Judge.

of the evidence, rulings on the admission Action by the county of Buffalo against

thereof, and to the giving and refusal of inRoss Gamble and others. Judgment for

structions, with regard to which their applaintiff. Defendants bring error.

plicability to the evidence is a material facversed.

tor. All these questions demand for their E. C. & H. V. Calkins, for plaintiffs in er- consideration an examination of the evidence. ror. Norris Brown and Fred A. Nye, for de- The document following the transcript, and fendant in error.

purporting to be a bill of exceptions, is not

authenticated by the clerk's certificate, and IRVINE, C. This was an action on two must therefore be disregarded. Affirmed. official bonds of a former treasurer of Buffalo county. The principal did not answer. There was a trial of issues joined on the answer of the sureties, and a judgment in form

BAACKE et al. v. DREDLA. entered for the plaintiff

. The sureties bring (Supreme Court of Nebraska. Dec. 8, 1898.) the case here for review.

APPEAL FROM County Court – JURISDICTION OF It appears from the record, and is conceded

DISTRICT COURT. in the briefs, that the supposed judgment 1. An appeal from an allowance of a claim was entered at a time when the district against an estate in the county court later than court was not in session. In other words, it

the time fixed by statute after such allowance was the act of the judge in chambers, and

confers no jurisdiction on the district court to

reconsider such allowance. not of the court. The case being a simple 2. An error proceeding from a county court to action of a legal nature, and the judgment a district court vests the latter with no jurisbeing for the recovery of money, and not of

diction to inquire whether there was error in

the county court, in the absence of a petition such a nature as the law permits the judge in error. to perform in chambers, the attempted judg- (Syllabus by the Court.) ment was coram non judice and void. Hodg

Error to district court, Lancaster county; in v. Whitcomb, 51 Neb. 617, 71 N. W. 314.

Holmes, Judge. It is argued that the defendants consented

Action by Herman Baacke and Elizabeth to the entry of judgment in vacation. No

Klepper against Anton Dredla, administrasuch consent appears in the record. The en

tor. Judgment for defendant, and plaintiffs try which it is contended supports that as

bring error. Reversed. sertion is the entry recording the trial and submission, and contains this: “Decision of

Boehmer & Rummons, for plaintiffs in error. this cause to be rendered in vacation." This

F. I. Foss and W. R. Matson, for defendant in indicates an order of the court, rather than

error. a stipulation of the parties. Moreover, had there been consent, it would be immaterial.

RYAV, C. In the county court of LancasThe defect is of jurisdiction of the subject

ter county, Herman Baacke filed his claim matter, -want of authority in the judge to

against the estate of Carl Baacke on April 14, make the order. Such authority cannot be

1894, and it was allowed in full June 29, supplied by consent. Reversed and remanded.

1894. The claim of Elizabeth Klepper et al. against the said estate was filed and allowed contemporaneously with that just described.

On October 17, 1894, the administrator of said COAD et al. v. BARRY.

estate filed his motion in said court for the

vacation of the allowance of the aforesaid (Supreme Court of Nebraska. Dec. 8, 1898.)

claims, on the alleged grounds that said adAPPEAL-RECORD-BILL OF EXCEPTIONS.

ministrator had no notice or knowledge of the A document attached to a transcript, and

filing or allowance of said claims until within purporting to be a bill of exceptions, cannot be considered, unless it be authenticated as such a short time before filing said motion, and according to the requirement of the statute,- had supposed the hearing would be on September 29, 1894, as he had been informed by Action by Charles C. Andrews against the the county judge. This motion in reference Steele City Bank and others. Henry B to each claim was denied on December 10, Challis, receiver of the bank, intervened, and 1894. A transcript showing the above pro- from an order sustaining his motion to disceedings was filed January 5, 1895, in the charge an attachment of the bank's property district court of said county. On March 11, plaintiff brings error. Affirmed. 1895, the claimants filed a motion to dismiss the appeal of the administrator,-among other

John C. Hartigan, for plaintiff in error. grounds, for the reason that the appeal had

E. H. Hinshaw, for defendants in error. not been taken in due time, and because no petition in error had been filed. This motion IRVINE, C. Charles C. Andrews brought was overruled, and the claimants duly ex- an action against the Steele City Bank, cepted. There were further proceedings, Charles B. Rice, and Vena Rice, alleging that which finally resulted in the reversal of the he was a depositor in the bank, which had order denying the motion of the administra- become insolvent, and was placed in the custor, and the reversal of the judgment of al- tody of the state banking board; that the lowance of said claims in the county court; Rices, who were husband and wife, were the and the correctness of this action of the dis- sole stockholders of the ink, and had given trict court is assailed by a petition in error of a bond to pay the debts of the bank, and had the claimants.

taken possession of its assets. Judgment It is provided by section 233, c. 23, and sec- was prayed for $1,000. Plaintiff also sued tion 43, c. 20, Comp. St., that an appeal from out a writ of attachment, alleging every statthe allowance or disallowance of a claim shall utory ground except that the debt was fraudbe taken within a fixed time from the date of ulently contracted. The attachment was ler. the order of allowance or disallowance. Clear- ied on certain property, both personal and ly, the administrator was too late to secure a real. Thereafter Henry W. Challis obtained review in the district court by appeal.

leave to intervene, alleging that he had beIt is provided by section 580, Code Civ. come the receiver of the bank. He filed an Proc., that a judgment rendered or inal order answer, and also moved to discharge the atmade by a probate court may be reversed, va- tachment. This motion was sustained, and cated, or modified by the district court. The from the order discharging the attachment proceedings to obtain such reversal, vacation, plaintiff prosecutes proceedings in error. or modification, it is provided by section 584, An attack is made on the validity of ChalId., shall be by petition in error. In this case lis' appointment as receiver, and upon his there was not filed in the district court a peti- right to intervene. It appears that the banktion in error; hence the district court was ing board, pursuant to the proviso of section without jurisdiction to treat the case as prop- 35 of the banking act (Comp. St. c. 8), auerly presenting for review the question thorized the stockholders to take possession whether or not the county court had improp

of the bank and its assets on giving a bond to erly denied the motion to set aside the allow- settle the liabilities; that a bond was tendered ance of the claim called in question by the ad- and approved; that thereafter the board unministrator. The judgment of the district dertook to rescind its action, and directed court was therefore erroneous, in any view the attorney general to apply for a receiver. which can be taken of the nature of the pro- Such application was made, and Challis apceedings by which a review was sought in pointed. It is argued that the board, after that court, and its judgment is reversed. Re- approving the bond, had no authority to reversed and remanded.

scind its action. But, if this be so, it would affect only the propriety of the appointment, and not is validity. The appointment was

made by a court of competent jurisdiction, ANDREWS v. STEELE CITY BANK et al.

and in an action where the power to appoint (Supreme Court of Nebraska. Dec. 8, 1898.) existed. That is sufficient to protect the reBANKS - RECEIVERS-APPOINTMENT-COLLATERAL ceiver's authority from collateral attack. We ATTACK-ATTACHMENT-INTERVENTION.

have no doubt of the receivtr's right to be1. When a court of competent jurisdiction has appointed a receiver in an action where

come a party. The bank was sued before such appointment is authorized, the authority his appointment. He became, by operation of such receiver is not open to collateral attack. of law, its transferee. By section 45 of the 2. A receiver of a corporation, appointed aft

Code of Civil Procedure, where a transfer of er the commencement of a suit against the corporation, may intervene in such action to

interest occurs otherwise than by death, mardefend the rights of the corporation.

riage, or disability, the action may either pro3. Under the present banking law (Comp. St. ceed in the name of the original party, or the C. 8), when an examiner, under authority of the banking board, has taken possession of the

successor in interest may be substituted. By assets of an insolvent bank, such assets are not section 50a, any person who claims an intersubject to attachment at the suit of a creditor est in the success of either party may beof the bank while possession is so retained.

come a party by intervention. The receiver (Syllabus by the Court.)

had an interest in the success of the bank, Error to district court, Jefferson county; and he had a right to come in to defend that Stull, Judge.

interest. Arnold v. Weimer, 40 Neb. 216,

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58 N. W. 709. From the briefs it would appointed, as provided in section 35 of this seem that the plaintiff considers that disso- act.” By this provision, when an examiner, lution of the attachment was sought simply duly authorized, takes possession, the assets on the ground that the attached property be- pass into the custody of the state, and are no longed to the bank, and was attached as the longer subject to attachment. Whether the property of Rice. The record does not sup- bond became obligatory upon approval, port that theory. The ownership of the prop- whether the bank's assets thereby passed to erty was only incidentally involved, and the the obligors, whether such result could be ruling on the motion does not necessarily ad- defeated by the obligors' refusing to take judicate that question. The attachment was possession or by a subsequent rescission by asked and issued against all defendants. the board of its approval of the bond, are There is nothing in the affidavit, writ, or re- questions which may, perhaps, arise on the turn to indicate that the property was seized trial of the main case, but do not affect the as that of onė defendant, rather than the present motion. The property was in fact other. While the evidence shows that Rice in the possession of the examiner, and under had formerly held the legal title to at least the protection of the statute. Although, pera portion of the property, it also shows that haps, that possession ought to have termihe held it as trustee for the bank. Certain- nated, it had not in fact done so. It could ly, the receiver had a right to resist the at- not be disregarded. Affirmed. tachment in so far as the bank's title was attacked.

The plaintiff insists that when the banking board approved the bond the bank became

ATKINSON et al. v. MAY'S ESTATE. the property of the obligors, as did all its assets, and so subject to attachment; that Rice (Supreme Court of Nebraska. Dec. 8, 1898.) had absconded; that before leaving he had Contest OF WILL-ATTORNEY'S Fees. conveyed the attached property to persons

The estate of a decedent is not liable to an named as trustees for creditors; that this

attorney for services rendered by him for and

at the request of a legatee under decedent's was a prohibited general assignment, and will in a contest thereof. was, consequently, fraudulent. It is appar- (Syllabus by the Court.) ent that the decision of the district court did

Error to district court, Lancaster county; not involve a decision of these issues, but

Tibbets, Judge. went upon the ground that the property was not subject to attachment. The evidence,

In the matter of the estate of Nancy Jennie while on some points conflicting, tends to

May. From a rejection of the claim of Atshow that the Rices' bond was approved No

kinson & Doty, they bring error. Affirmed. vember 11, 1895, but that they straightway

John L. Doty, for plaintiffs in error. Reese refused to take possession of the assets. The & Gilkeson, for defendant in error. attachment was levied November 16th. November 18th the board undertook to rescind RAGAN, C. Nancy Jennie May died in its action, and applied for a receiver. Prior Lancaster county, leaving a paper purporting to November 11th, an examiner, by direction to be her last will and testament, in and by of the board, had taken possession of the which she bequeathed $1,000 to the “African bank and all its assets. He did not surren- mission under Bishop Taylor's jurisdiction.” der possession to Rice, but retained posses. This paper was presented to the county court sion for the board until the receiver quali- of said county for probate, and its probate fied, when he delivered possession to him. resisted. Bishop Taylor, or some one acting Under the former banking act it was held for him, employed Messrs. Atkinson & Doty, that the assets of an insolvent bank were attorneys and counselors at law, of the Lansubject to attachment while in the hands of caster county bar, to assist in the litigation the banking board, and before a receiver was which ensued over the contest of this will. appointed, or the sheriff placed in custody. The county court admitted the will to proArnold v. Weimer, 40 Neb. 216, 58 N. W. 709. bate, and the contestants appealed to the After the decision of that case, and before district court, where a judgment was renthe present arose, a new law went into effect dered denying the will probate. Subsequent(Comp. St. c. 8), section 24 of which gives ly the county court appointed an adminisauthority to an examiner, when ordered by trator for the estate of Nancy Jennie May, the board, to take possession of a bank, and and Atkinson & Doty filed in the county "to hold and retain possession of all the mon- court a claim against the May estate for ey, rights, credits, assets, and property of the services which they had rendered in the any description belonging to such bank, as will contest proceedings. The county court against any mesne or final process issued by disallowed its claim, and Atkinson & Doty any court against such bank, corporation, appealed to the district court, which also renpartnership, firm, or individual whose prop- dered a judgment disallowing their claim; erty has been taken possession of by such and they have filed a petition in error here examiner, until the state banking board can to review this judgment of the district court. receive and act on the report made by the The judgment of the district court was right. examiner of said bank, and have a receiver The estate of a decedent is not liable to an

attorney for services rendered by him for grounds: (1) Notice of the application pras
and at the request of a legatee named in the not published in the newspaper published in
decedent's will in a contest thereof. The Douglas county having the largest bona fide
judgment of the district court is affirmed. circulation therein. (2) There is no legal

newspaper printed or publisbed in said coun-
ty known as the Omaha Daily World-Herald,

as set forth in the affidavit of publication atFEIL V. KITCHEN BROS. HOTEL CO. tached to the notice. (3) Neither the Morn(Supreme Court of Nebraska. Dec. 8, 1898.)

ing World-Herald nor the Evening WorldINTOXICATING LIQUORS-LicExsE-NOTICE OF AP

Herald has as large a bona fide circulation in PLICATION-PUBLICATION-NEWSPAPERS Douglas county as the Omaba Evening Bee. APPEAL-REVIEW.

(4) That the applicant did not publish the no1. One is a competent remonstrator against tice in good faith believing that the same was the granting of a liquor license on the ground

inserted in the newspaper having the largest that notice of the application for such license was not published in the newspaper having

circulation in the county. At the hearing bethe largest circulation in the county, notwith- fore the board, the remonstrance was overstanding he is personally interested in the de- ruled, and a license was ordered issued as termination of the question. 2. Notice of an application for liquor license

prayed. The remonstrator prosecuted an apis required to be given, for two weeks prior to

peal from the decision to the district court, the hearing, in a newspaper published in the where the matter was heard before Judges county, having the largest circulation therein,

Baker, Dickenson, and Fawcett, who made unless no newspaper is published in such county. Where a notice is inserted in a daily paper,

special findings of fact; among others, the it must be published daily for the period stated. following: (1) The contents of the Morning

3. Whether several editions of a daily paper World-Herald and Evening World-Herald of are separate and distinct publications is a ques

the same date are not substantially the same, tion of fact, to be determined, in the first instance, by the license hoard.

and they do not constitute one newspaper. 4. Where the matter published in each of two (2) That the Omaha Evening Bee was a news editions of a daily paper is not substantially

paper published in Douglas county of the the same, and each edition has a different heading or name, and is sent to a different list of

greatest circulation therein, and that the nosubscribers, notice of an application for liquor

tice for the license was not inserted in the license is required to be inserted in but one edi- newspaper having the largest circulation in tion thereof daily for the requisite length of time; and its circulation alone is to be consid

the county. (3) That applicant acted in good ered in determining whether the proper news

faith in making its choice of a newspaper in paper was selected. Rosewater v. Pinzen- which to publish its said notice. Upon the scham, 57 N. W. 563, 38 Neb. 833, followed.

strength of this last finding, the court affirm5. Though the notice should be inserted in the newspaper having the largest circulation,

ed the order and decision of the license board, the publication will not be declared invalid if Judge Dickenson dissenting from the first bad faith cannot be properly imputed to the finding, all the judges concurring in the secapplicant in making choice of the paper. 6. License board has no authority, by reso

ond, and Judge Fawcett dissenting from the lution or otherwise, to designate the newspaper

last finding, as well as the judgment of afin which the publication of notices of applica- firmance based thereon. tions for license shall be made.

It is argued in the brief of counsel for ap7. Findings of the trial court, when sustained by sufficient evidence, will not be disturbed on

plicant that the remonstrator has no standing review.

in court to object to the issuance of the liquor (Syllabus by the Court.)

license, and the judgment should be affirmed, Error to district court, Douglas county;

because the remonstrance is by N. C. Feil, Fawcett, Dickenson, and Baker, Judges.

manager of the Bee Publishing Company, and An application for a liquor license was pre

was not filed for the public good, but as a sented by the Kitchen Bros. Hotel Company,

mere business proposition. The protest or reand a remonstrance was filed by N. C. Feil.

monstrance on its face shows that it was

made by Mr. Feil as an individual, and not in The remonstrance was overruled, and on appeal the district court affirmed the decision of

any representative capacity whatever. It is the license board, and remonstrant brings er

fact that was developed on the trial that reror. Affirmed.

monstrator was the business manager of the

corporation which publishes the Omaha EvenE. W. Simeral, for plaintiff in error. Hall

ing Bee and other newspapers, and that a fa& McCulloch, for defendant in error.

vorable decision might inure to the benefit of

the corporation of which he was the repreNORVAL, J. The Kitchen Bros. Hotel sentative. But these considerations did not Company presented an application to the make Mr. Feil an incompetent remonstrator, board of fire and police commissioners of or preclude him from demanding that applithe city of Omaha for license to sell in- cant should comply with the plain require toxicating liquors in said city. Notice of ments of law by publishing the notice of its the filing of the application was published application for a license in the newspaper in the Omaha Daily World-Herald; and, be- published and having the largest circulation fore the hearing, N. C. Feil filed with said in Douglas county. The statute does not board a protest or remonstrance against the specify that disinterested persons alone shall issuance of the license upon the following be competent remonstrators against the grant

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