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ing of license to sell intoxicating liquors; and, tially the same, and each edition has a dif-
this court has neither the inclination nor the ferent heading or name, and is sent to dif-
power to interpolate into the statute a provi- ferent subscribers, it would be quite clear
sion neither in express terms nor impliedly that the combined circulation of all cannot
adopted by the lawmaking body. As we be counted, for the purpose of ascertaining
view the statute, any person, though inter- the newspaper in which notices like the one
ested, may protest against the granting of a in question should be published. *
liquor license, if sufficient cause or ground All that the law requires is that the notice
therefor exists. Whatever may have been shall be published in the newspaper having
the motive which induced or prompted Mr. the largest circulation in the county. If
Feil to take the step he did, there can be no several editions of a daily paper in fact con-
doubt that he was not disqualified from doing stitute but one paper, then the notice must

be published in each of said editions. If each
The proof of the publication attached to the edition is a separate and distinct publication,
copy of the notice of the application states a publication in one, if the same has the
substantially that such notice was published largest circulation in the county, will be
the requisite period of time in the Omaha sufficient." No reason has been suggested
Daily World-Herald. One of the grounds of for departing from the doctrine above stated,
protest is that no such newspaper is published and it will be adhered to at this time. It
in Douglas county. The proofs adduced on is conceded by counsel for applicant that the
the hearing before the board of fire and police Morning World-Herald and the Evening
commissioners disclose beyond the possibility World-Herald usually are not delivered to the
of a doubt that no newspaper is published in same subscribers, and for the purposes of this
Douglas county under the heading or name of case, that the circulation of the Omaha Even-
"Omaha Daily World-Herald," but that said ing Bee at the time of the trial exceeded that
term is employed to designate the “Morning of either the Morning or Evening World-Her-
World-Herald” and “Evening World-Herald," ald. It requires no argument to show that
published at Omaha by the same corporation. publications claimed to be the two editions
Both publications are entered in the mails, of the World-Herald are not published under
and postage is paid thereon as the “Daily the same heading or name, one being called
World-Herald.” In view of these facts, sup- the Morning World-Herald and the other the
pose an indictment should be returned char- Evening World-Herald. It may be, as sug.
ging the accused with the publication of a gested in argument, that the words "Morn-
certain libelous article in the "Omaha Daily ing" and "Evening” are merely descriptive of
World-Herald”; could a conviction be had by the time of day the publications are made,
proof of the insertion of such article in the but each word is none the less a portion of the
“Morning World-Herald" or "Evening World- name or heading of the publication.
Herald,” or both of them combined? Clearly A question quite analogous to the one we
not, since there would be a fatal variance be- are considering was determined in Russell v.
tween the averments and proofs. So, in the Gilson, 36 Minn. 366, 31 N. W. 692. The
case at bar, there is a failure of evidence to county board of Hennepin county designated
establish that any newspaper is published in the Minneapolis Tribune as the paper in which
Douglas county under the particular heading the delinquent tax list and notice should be
or name stated in the proof of publication inserted. The publication was made in the
filed with the license board. But this fact Minneapolis Weekly Tribune, which paper was
alone did not devest such board of jurisdic- published by the same company that issued
tion to grant a license to applicant herein, the Minneapolis Daily Tribune. It was held
for the evidence is clear and undisputed that there was no legal publication of the list and
the notice in question appeared, for the length notice, the court saying: “In short, there was
of time required by law, in the Morning no paper of the name designated by the board,
World-Herald, and in the Evening World-Her- and the one in which the list and notice was
ald as well. If these publications constituted published was not any paper designated by
a single newspaper, having the largest circu- the resolution. It is immaterial that both pa-
lation in Douglas county, the remonstrance pers were published by the same company.
was without merit, and must fail in its pur- It is the newspaper, and not the publisher,

that is required to be designated. Although Counsel for applicant insist that the Morn- a part of the name of each was common to ing World-Herald and the Evening World- both, yet the names of the two papers were Herald are the morning and evening editions just as different as if, for example, one had of the same paper, and constitute a single been called 'The Minneapolis Commercial Tribnewspaper. In Rosewater v. Pinzenscham, une,' and the other 'The Minneapolis North 38 Neb. 845, 57 N. W. 567, it was said: Star Tribune.'” “Whether or not the several editions of a In the present case we do not wish to be daily paper are separate and distinct publica- understood as holding that the difference in tions is a question of fact to be determined the names Morning World-Herald and Evening from the proof, in the first instance, by the World-Herald alone is sufficient to establish license board. If the matter published in that they constitute two newspapers, and not each edition of a daily paper is not substan- merely two editions of the same paper. Another element is to be taken into consideration in tending to unduly influence liquor dealers, determining the question in dispute, namely, druggists, and saloon keepers in the publicaare the contents of the Evening World-Herald tion of notices of their applications for liquor and the Morning World-Herald substantially licenses. The evidence introduced to estabthe same? The court below expressly found lish the good faith of the applicant herein is that the contents of these two publications, is- quite unsatisfactory, but we are all agreed that sued on the same day, or the editions of one bad faith is not so clearly made out by the evinewspaper, as claimed by counsel for appli- dence as to justify us in disturbing the finding cant, are not substantially alike, and that such of the court below on that question. The publications do not constitute a single news- judgment is accordingly affirmed. paper. As already indicated, the court below likewise found that the Omaha Evening Bee, at the date of the hearing before the license board, had the largest circulation in Douglas COLUMBIA NAT. BANK V. GERMAN county of any newspaper then published there

NAT. BANK. in. This court is unanimous in the opinion that

(Supreme Court of Nebraska. Dec. 8, 1898.) these findings are sustained by the proofs. It

EVIDENCE-TESTIMONS-APPEAL-BILL OF EXCEPcan serve no useful purpose to discuss the TIONS-CERTIFICATE-BANK CHECK-TRANSevidence, or to point out the particular por

FER OF DEPOSIT-ESTOPPEL. tions thereof upon which we base our con

1. “Testimony" and "evidence" are not synclusion. The facts are perfectly familiar to

onymous terms; the latter is the generic terin,

and the former applicable to a species or kind both parties to this controversy, and it would of evidence. unduly prolong this opinion, and that, too, 2. If a bill of exceptions, which purports to without profit, to set out a synopsis of the tes

contain all the evidence, is submitted to the

adverse party for examination and amendment, timony. We decline in this case, in obedience

and he returns it with an indorsement that he to the universal rule obtaining in this court, has no amendments to propose, it will be preto disturb a finding based upon sufficient com

sumed to contain all the evidence. Cattle r.

Haddox, 14 N. W. 803, 14 Neb. 59. petent evidence.

3. The use of the word "testimony" for "evi. There is another important inquiry which is dence,” in the certificate of the trial judge in presented by the record, and that is, did the the allowance of a bill of exceptions, if the Kitchen Bros. Hotel Company act in good

meaning is obvious, or it is clear that the latter

is intended, will not render the document infaith in the selection of the newspaper in which

operative. the notice of the application for a license was 4. A check upon a bank by a depositor operinserted ? If bad faith cannot be imputed

ates a transfer of its amount to the payee ir to it in that regard, then, under the rule an

on deposit at the time of presentation, and the

payee or holder may, on refusal of payment, nounced in Lambert v. Stevens, 29 Neb. 283, maintain a suit on the instrument for the re45 N. W. 457, and Rosewater v. Pinzenscham, covery of its stated sum. 38 Neb. 835, 57 N. W. 563, the license was

5. As against the holder of a check against

an account of a depositor, the bank of deposit properly granted. The record shows that,

may not apply the amount of the account to prior to the filing of the application for li- the payment of the indebtedness of the depositcense, the board of fire and police commis- or to the bank which is not yet due, although sioners of the city of Omaha adopted the fol

the depositor may be insolvent.

6. Two defenses irreconcilably inconsistent lowing resolutions, which were spread upon may not be enforced, and the position assumed the records of said board: "Resolved, that the by the party prior to the suit relative to the liquor dealers are hereby advised that, under

facts and circumstances involved in the transthe law, they should publish their notices in

actions drawn into question will prevail.

(Syllabus by the Court.) the newspaper of largest circulation in Doug. las county for two weeks, and that these

Error to district court, Lancaster county; publications should be completed before

Tibbets, Judge. the expiration of their present licenses." "Re

Action by the Columbia National Bank solved, that this board will abide by, and rec

against the German National Bank. Judg. ognize, the decision of the board made upon the

ment for defendant, and plaintiff brings error. third day of January, 1896, wherein, after an

Reversed. investigation, it was found that the Daily J. H. Broady and E. E. Brown, for plain. World-Herald was the paper of the largest tiff in error. N. C. Abbott and Abbott, Selcirculation in Douglas county, until the further leck & Lane, for defendant in error. order of this board." The adoption of the foregoing had some influence with the ap- HARRISON,C.J. On June 2, 1893, the State plicant herein in determining the newspaper Bank of Courtland was engaged in the busi. in which the notice of its publication should ness suggested by its name, and at the place be inserted. In Rosewater v. Pinzenscham, thereby indicated, and in the course of such supra, we condemned, as being unauthorized, business drew and forwarded an order or a the practice of license boards designating the check on the German National Bank of Lidnewspaper in which the publications of no coln in favor of "J. H. McClay, Cashier," he tices like the one before us should be made. being such officer of the Columbia National We adhere to everything we then said upon Bank of Lincoln, for the sum of $898, and in the subject, and emphasize our disapproval of closed the same in an envelope addressed, the adoption of the foregoing resolutions, as "Columbia National Bank, Lincoln, Nebras


ka," and mailed the package. On June 3d, indorsed, “I herewith return the within bill it did likewise in relation to an order or check of exceptions, and suggest no amendments," similar in form and substance in the material over the signature of counsel. From such an portions except amount, which was $3.88. indorsement the presumption arises that the The instruments, or checks we may call them, bill of exceptions on which it appears contains -for, whatever may be the proper technical all the evidence, though the certificate of the designation, they were, in effect, checks, and trial judge may not so state. Cattle v. Hadto be considered as such (Bull v. Bank, 123 dox, 14 Neb. 59, 14 N. W. 803. There being U.S. 109, 8 Sup. Ct. 62),—were received through nothing in this record to indicate to the conthe mail by the Columbia National Bank on trary, such presumption must be indulged and June 7, 1893, and were, in the morning of the govern. Furthermore, if the certificate be day of reception, presented to the drawee for read in connection with other matters of the payment, which was refused. The Bank of bill of exceptions to which it is attached, it is Courtland had an account with the German clearly disclosed that "testimony” therein is National Bank, and on the morning of June used as the equivalent of "evidence"; and, 7, 1893, there was to the credit of the former when this is true, it is sufficient. Harris v. the sum of $983, which was subject to check. Tomlinson, 130 Ind. 426, 30 N. E. 214. At the close of business on June 6, 1893, the It is the contention for the plaintiff that the Bank of Courtland suspended, and passed into judgment of the trial court was violative of the hands of a receiver, who afterwards contin- the rules that a check drawn on funds in a ued in possession for the sole purpose of adjust- bank is an appropriation of its amount in fament of its affairs. The Bank of Courtland vor of the holder, and on refusal of its paywas a debtor of the German National Bank, ment, where the funds have not been drawn the indebtedness being evidenced by promis-out prior thereto, the holder may sue for the sory notes which were payable on dates sub- recovery of the amount (Fonner v. Smith, 31 sequent to June 7, 1893, or they were not Neb. 107, 47 N. W. 632); and, further, that then due, but on that date the amount which the bank could not, as against the rights of was shown by the open account in favor of the holder of the checks, apply the deposit or the Bank of Courtland was by the German money on open account subject to check to National Bank credited as a payment on one the payment of a debt of the depositor to the of the notes to which we have just referred, bank which had not matured or was not due. and the account balanced or closed. In this, We believe these propositions advanced for an action by the Columbia National Bank the plaintiff are sound, and will adopt them. against the German National Bank to recover They are thoroughly supported by precedent, the amount of the two checks sent it by the and we think the logic and reason applicable bank at Courtland, the defendant was accord to the events and circumstances of the matter ed a judgment, to reverse which the plaintiff in hand. Counsel for plaintiff have cited the bas prosecuted error proceedings to this court. following cases, which fully sustain their posi

What may not be inaptly termed a prelimi- tion: Bank v. Robinson, 97 Ky. 552, 31 S. W. nary question, which has its origin in the con- 136; Fourth Nat. Bank v. City Nat. Bank, 68 dition of the record as presented, is raised Ill. 398; Fuller v. Steiglitz, 27 Ohio St. 355; and urged for the defendant. The certificate Jones v. Bank, 10 Wkly. Notes Cas. 102; Bank of the trial judge of the allowance of the bill v. Jones, 2 Penny. 377; Oatman v. Bank, 77 of exceptions recites that the document con- Wis. 501, 46 N. W. 881; Bank v. Ritzinger, tains "all the testimony adduced or offered on 20 Ill. App. 27; Skunk v. Bank, 16 Wkly. Law the hearing of the” cause, and in other por- Bul. 353; Spaulding v. Backus, 122 Mass. 553. tions of its statements the reference in each is It was of the evidence that on the morning to “testimony.” It is of this it is objected of the 7th of June, 1893, the cashier of the that it is insufficient, inasmuch as testimony defendant bank had a telephonic conversation means but a part of the evidence, and the with the president of the Bank of Courtland, certificate should show that all the evidence in which the propriety of the action of the forwas included in the bill of exceptions. It is mer in applying the amount of the open acincontestably true that "testimony” and “evi- count of the latter as a payment on its debt dence" are not synonymous terms; that testi- to the former which was not yet due was dismony is but a kind or species of evidence; cussed, and, soon after this conversation was that the former is, in a trial, the portion of the closed, the president of the Bank of Courtland latter which may be given orally by witnesses; sent a telegram to the said cashier, in which that the latter is inclusive of the testimony of he attempted, for the bank, to authorize such witnesses, documents, etc.; that "evidence” is action as we have indicated. The telegram the generic term (Printing Co. v. Morss, 60 was of date the 7th of June, and stated: “ApInd. 153); and if we were confined to the cer- ply our balance on our indebtedness. State tificate, and could look no further, it might be Bank Courtland.” But all this was futile, for fatal to the bill of exceptions (Printing Co. v. the Courtland Bank had, on the evening of the Morss, supra; Lindley v. Dakin, 13 Ind. 388). 6th of June, passed from the control of its But an examination of other parts of the docu- officers into the hands of the officers of the ment reveals that it was presented, as the law state, and it was no longer a going concern. required, to the adverse party for examination It appeared in evidence that of the amount and proposal of amendments, and returned of the open account of the Courtland Bank with the defendant at or about the times of tion of the court. Mrs. McConniff becanie the transactions involved herein there was the the purchaser. Before the commencement of sum of $590.05, the amount of a draft received the trial the appellants, Pratt, Simmons & from the bank at Courtland, and with which Krausnick, became parties to the action by it was credited, and of which payment was intervention, They allege in their petition, refused on presentation to the bank in Chicago with much elaboration, that they are the on which it was drawn. It was subsequently owners of a portion of the property in conpaid, but this fact cuts no figure in the pres- troversy; that the mortgagors purchased and ent controversy. It is now urged for defend- obtained possession of the same by false ant that it had the right, when the payment representations touching their financial reof this draft was refused, to charge its amount sponsibility; that the sale was seasonably reback against the account of the Courtland scinded; that the plaintiff is not a bona fide Bank, and, this being true, there was not mon- purchaser, nor possessed, by virtue of her ey to pay the checks of plaintiff in the hands mortgage or otherwise, of any valid or enof defendant, and its refusal of payment was forceable claim, lien, right, or title. In due warranted, and must be upheld. As we view time issues were joined and a trial had, this matter as developed in the evidence, the which resulted in a decree dismissing the defendant has furnished by its action a solu- interveners' petition. They appeal, and bring tion of this question. On the morning of the before us for review the pleadings, motions, 7th of June it had no hesitancy, when it de- interlocutory orders, and final judgment. A sired to apply the amount of the balance of bill of exceptions attached to the record was, the account of the Bank of Courtland to the for sufficient reason, quashed at a former payment of its debt to the defendant, in con- term. The portion of the decree disposing sidering the whole of such amount as be- of the claim of Pratt, Simmons & Krauslonging unqualifiedly to the Bank of Court- nick is as follows: "This cause, having been land, and will not be heard to assert now, if heretofore submitted to the court upon the such money cannot be applied as it was then evidence adduced, now comes on for final placed, it was but conditionally the property determination; and after due consideration, of the Bank of Courtland, and we will now and the court being fully advised in the take another and different position in regard premises, finds that the claim of the intervento it. It follows from what has been said ers, Pratt, Simmons & Krausnick, set forth that the judgment of the trial court was in their answer and cross petition herein, bas wrong, and it must be reversed. Reversed not been reduced to judgment, and that there and remanded.

is no equity in said interveners' answer and cross petition. The court, therefore, finds the issues joined in favor of the plaintiff,

and that the action of the said defendants McCOXNIFF v. VAN DUSEN et al.

Pratt, Simmons & Krausnick herein shall (Supreme Court of Nebraska. Dec. 8, 1898.) be, and the same hereby is, dismissed at PARTIES—INTERVENTION-APPEAL.

their costs, taxed at $31.68, and for which 1. A person claiming ownership of property execution is hereby awarded; to which the in litigation may, at any time before trial, be

said defendants Pratt, Simmons & Krausnick come a party to the action by intervention, and have his claim adjudicated.

duly excepted." 2. A judgment based on an immaterial fact or The writer was at first inclined to think an erroneous construction of a pleading will be that the court intended to base its finding of reversed, unless the correctness of such judgment is otherwise affirmatively shown.

the issues on the evidence adduced at the (Syllabus by the Court.)

trial; but, as the result of a closer examina

tion and more careful analysis of the lanAppeal from district court, Lancaster coun

guage contained in the journal entry, we are ty; Holmes, Judge.

all agreed (hat the interveners were cast in Action by Elizabeth J. McConniff against

their action because the trial court found Alice E. Van Dusen and another. Pratt,

their claim had not been reduced to judg. Simmons & Krausnick intervened, and from

ment, and that their petition was deficient a judgment dismissing their petition they ap

in equity. These reasons are insufficient. peal. Reversed.

They do not justify the conclusion or judg. Harwood, Ames & Pettis, for appellants. A. ment. The property in question, or its proG. Greenlee, for appellee.

ceeds, was in the custody of the court. The

interveners claimed a portion of it adverseSULLIVAN, J. Elizabeth J. McConniff ly to the original parties to the action. They brought this action in the district court of averred facts in their petition showing the Lancaster county to foreclose a chattel mort- superiority of their title over the claims of gage made and delivered to her by Alice E. other litigants. They were entitled to interVan Dusen and R. J. Brydon. At the in- vene, and to a judgment in their favor, if stance of the plaintiff, a receiver was ap- they succeeded in establishing the material pointed, and the mortgaged property, which allegations of their pleading. Code Civ. Proc. consisted of a stock of millinery goods, was $ 50a; Holland v. Bank, 22 Neb. 585, 36 N. taken from the possession of the mortgagors, W. 112; Welborn v. Eskey, 25 Neb. 195, 40 and sold at public auction, under the direc- N. W. 960. We know of no reason why it


was necessary that their claim should be in of $60 each for not less than 15 hydrants. judgment in order to give them a standing The plant was constructed, and the period in court. They were asserting title to the during which water was to be furnished free property, not prosecuting a creditors' bill. expired April 1, 1894. During the following The judgment of the district court is re- year the village used the 15 hydrants, but versed, and the cause remanded for further has refused to pay therefor the rental fixed proceedings. Reversed and remanded. by the ordinance. On behalf of the defend

ant it is insisted that the provision of the ordinance in relation to the rental of bydrants

is void, for the reason that there was no LINCOLN LAND CO. V. VILLAGE OF

antecedent appropriation to cover the exGRANT.

penditure, as required by section 86, art. 1, (Supreme Court of Nebraska. Dec. 8, 1898.)

c. 14, Comp. St. Our attention is especially

directed to section 89 of the village charter, VILLAGES - ORDINANCES — SUBJECT AND Title CONTRACTS-RATIFICATION-QUANTUM

which is as follows: "No contract shall be MERUIT.

hereafter made by the city .council or board 1. An ordinance adopted by a board of vil- of trustees, or any committee or member lage trustees is valid only as to subjects clear- thereof; and no expense shall be incurred ly expressed in the title. 2. A contract providing for the rental of five

by any of the officers or departments of the hydrants is not a subject of legislation express

corporation, whether the object of the exed in the following title: “An ordinance au- penditure shall have been ordered by the city thorizing the Lincoln Land Company to con

council or board of trustees or not, unless an struct and maintain a system of water works, and use the streets, alleys, avenues, and pub- appropriation shall have been previously lic grounds for laying their mains and pipes made concerning such expense, except as in the town of Grant, in Perkins county, Ne- herein otherwise expressly provided.” The braska.” 3. A contract for the rental of five hydrants,

section quoted, in connection with other contained in an ordinance entitled as aforesaid, kindred provisions of the act, evinces a clear is void.

legislative purpose to confine the current ex4. Where a municipal corporation receives and retains substantial benefits under a contract

penditures of municipalities of the class here which it was authorized to make, but which

in question to their current revenues, and to was void because irregularly executed, it is prevent the creation of long-time obligations, liable in an action brought to recover the rea- which may prove burdensome in the future, sonable value of the benefits received. 5. In such an action it is unnecessary to es

although prudent and provident enough when tablish a ratification of the contract. Gutta- viewed in the light of the present conditions. Percha & Rubber Mfg. Co. v. Village of Ogal. It would be difficult indeed to choose more alla, 59 N. W. 513, 40 Neb. 775, and Tullock explicit and imperative language to express V. Webster Co., 64 N. W. 705, 46 Neb. 211, distinguished.

the idea that municipal authorities have no (Syllabus by the Court.)

power, unless expressly granted, to create

liabilities extending beyond the current year. Error to district court, Perkins county;

The legislative policy to leave future municiGrimes, Judge.

pal revenues unincumbered being frequently W. S. Morlan and J. W. Deweese, for plain- declared and strongly accentuated, as will tiff in error. C. C. Flansburg and C. P. appear from an examination of sections 86Logan, for defendant in error.

89 of the charter (Comp. St. c. 14, art. 1), the

power to make a valid contract imposing on SULLIVAN, J. The Lincoln Land Com- the village a serious financial burden during pany sued the village of Grant in the district a quarter of a century ought not to be decourt of Perkins county to recover the sum rived as a mere probable inference from an of $900, alleged to be due as rental for 15 ambiguous statute. But in the case of City hydrants. On demurrer to the petition, judg- of North Platte v. North Platte Waterworks ment was rendered in favor of the defend- Co. (Neb.) 76 N. W. 906, the existence of such ant, and the plaintiff prosecutes error to this power was assumed without discussion. court.

What was said on the subject is here subFrom the averments of the petition it ap- joined: “By subdivision 15 of section 69 of pears that on April 13, 1889, the board of the chapter just referred to [Comp. St. art. trustees of the defendant village adopted an. 1, c. 14), it is provided that cities of the class ordinance authorizing the plaintiff to con- in which North Platte is embraced may enact struct and maintain a system of waterworks ordinances, among other things, 'to make in said village, and to use the streets and contracts with and authorize any person, alleys thereof for the term of 25 years for company, or corporation to erect and mainthe purpose of laying down the necessary tain a system of waterworks and water supmains and pipes. The ordinance further pro- ply, and to give such contractors the exvided that the company should furnish the clusive privilege for a term not exceeding village the use of 15 hydrants free of cost twenty-five years, to lay down in the streets for a period of 412 years immediately follow- and alleys of said city, water mains and suping the completion of the system, and that ply pipes, and to furnish water to such city for the 2012 years next ensuing the village or village and the residents thereof, and should pay to the company an annual rental under such regulations as to price, supply,

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