HARRISON, C. J. The defendant in error commenced an action against the partnership of Wigton & Whitham to recover an amount alleged to be due him from the firm. On review by this court of a judgment rendered in the district court, the judgment was reversed and the case remanded. The decision at that time will be found reported in 35 Neb. 460, 53 N. W. 374. The suit was again tried in the district court, and a second time presented to this court in an error proceeding, and the judgment reversed and the cause remanded. For report of the opinion, see 46 Neb. 461, 64 N. W. 1080. When it again reached the district court there was filed for defendant in error an amended petition, in which the declaration was against "Frank P. Wigton and George L. Whitham, partners doing business in the state of Nebraska under the firm name and style of Wigton & Whitham." This was filed of date January 12, 1897, and after a demurrer and a motion had been filed, and a disposition made of each, on June 16, 1897, another amended petition was filed, in which the party against whom the pleadings ran was the firm of Wigton & Whitham. To this a general demurrer was interposed, and, on hearing, overruled. Then an answer was filed, in which the bar of the statute of limitations was asserted. A trial resulted in a judgment for the defendant in error, and the case has been for the third time submitted to this court for review.

The right of action accrued on or about March 30, 1888, and it is now argued for plaintiffs in error that the amended petition of January 12, 1897, was one by which the action was changed to one against the individual members of the partnership, and an abandonment or discontinuance of the action against the partnership, and that the petition filed on June 16, 1897, which was directed against the partnership, and not the individual members thereof, worked an abandonment of the pleading against the individuals of the firm; that when the petition of January 12, 1897, was filed, and the action against the partnership distinctively was abandoned, it became barred by the statute of limitations, and without life. The petition filed January 12, 1897, was against the individual members of that partnership, and not against the firm. It was, in effect, a statement of a separate and distinct action from the one originally commenced, which was against the firm, under the provisions of section 24 of the Code of Civil Procedure, which allows a suit to be instituted against a firm by the name which it has assumed or is known by. In the cause of Emerson, etc., against Hanna, the petition declared against "Robert Hanna & J. M. Shugar, a firm doing business under the firm name of Hanna & Shugar"; and it was held in an error proceeding to this court that it was an action against the individuals, and not the partnership; that statement of the partnership relation in the petition was merely descriptio persona. See Hanna v. Emer

son, 45 Neb. 708, 64 N. W. 229. When the amended petition of January 12, 1897, was filed in the case at bar, the original complaint against the partnership ceased and lost its effect as a pleading; a discontinuance of the action against the firm was worked; and, as more than four years had elapsed, such action was barred, and no relief could be granted against the partnership on the complaint of June 16, 1897. La Société v. Weidemann (Cal.) 32 Pac. 583; Bassett v. Fish, 75 N. Y. 303; New York State Monitor Milk-Pan Ass'n v. Remington Agricultural Works, 89 N. Y. 22. It follows that the judgment must be reversed, and the cause remanded. Reversed and remanded.

HAYDEN v. HALE et al.

(Supreme Court of Nebraska. Jan. 5, 1899.) APPEAL FROM JUDGMENT AT LAW-JURISDICTION. An appeal from an order or judgment of the district court in a law action does not invest this court with jurisdiction of the cause. (Syllabus by the Court.)

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by Kent K. Hayden, receiver of the Capital National Bank of Lincoln, against James B. Hale and Joshua Perrin. Judgment for plaintiff. From a denial of a motion of plaintiff for an order requiring Elias Baker, clerk of the court, to turn over certain moneys to plaintiff, he appeals. Dismissed.

Cobb & Harvey and G. M. Lambertson, for appellant. Samuel J. Tuttle, for appellees.

SULLIVAN, J. In an action on a promissory note, Kent K. Hayden, as receiver of the Capital National Bank, obtained a judgment against James B. Hale and Joshua Perrin, in the district court of Lancaster county, for the sum of $1,258.50. This judgment was paid by the defendants therein to Elias Baker, as clerk of the said court. Afterwards Hayden filed a motion to require Baker to pay over to him the whole of the money so received. Baker answered the motion, alleging that various parties had sued Hayden, in his trust character, in said court, and had recovered judgments against him for costs; that, such costs being unpaid, fee bills were issued for their collection, and levied by the sheriff upon a portion of the money paid to the clerk on the judgment in favor of the receiver and against Hale and Perrin; that the money so seized by the sheriff was returned to the clerk, and was by him applied to the payment of said costs. The court denied the motion, and to obtain a reversal of this ruling the record is brought here by appeal. At the threshold of the case is the question of jurisdiction. By section 675 of the Code of Civil Procedure it is provided: "That in all actions in equity either party may appeal from the judgment or decree rendered, or final order made by the district court, to the supreme court of the

state." That the order complained of was not made in an action in equity is a proposition too clear to admit of discussion. This court is therefore without power or authority to either affirm or reverse it. Any judgment rendered here would be a mere nullity. The proceeding is dismissed. See Lowe v. Riley, 55 Neb., 77 N. W. 758; Campbell v. Bank, 49 Neb. 143, 68 N. W. 344; Nebraska Loan & Trust Co. v. Lincoln & B. H. R. Co., 53 Neb. 246, 73 N. W. 546.

BAKER v. PETERSON. (Supreme Court of Nebraska. Jan. 5, 1899.) PLEADING-ADMISSIONS-CLERKS OF COURT.

1. The averments of a petition, not denied in the answer, must be accepted as true where there is involved no question of value, or the amount of damages.

2. Where, by his answer, the defendant concedes that he received and receipted for certain money as clerk of the district court, and has paid a portion of it to his successor in office, he is still presumed to retain the balance in custodia legis, notwithstanding the fact that he may actually have paid it out on an ineffectual garnishment.

(Syllabus by the Court.)

Error to district court, Lancaster county; Hall, Judge.

Action by John Peterson against Elias Baker. Judgment for plaintiff, and defendant brings error. Affirmed.

Sawyer, Snell & Frost, for plaintiff in error. B. F. Johnson, for defendant in error.

RYAN, C. The judgment in this case was rendered by the district court of Lancaster county upon its determination of the insufficiency of the answer on a general demurrer thereto. We shall therefore briefly summarize the facts pleaded in the petition and in the answer. For his cause of action, Peterson, the plaintiff, alleged that on February 23, 1895, the defendant was clerk of said district court; that on March 23, 1894, there was a decree of foreclosure therein whereby certain lands owned by plaintiff were ordered sold; that on May 1, 1894, pursuant to said decree there was a sale by the sheriff at which sale there was paid an excess of $399.80 above the amount necessary to satisfy the decree and costs, which sum, plaintiff alleged was his as the holder of the fee of the land sold. There were, with respect to this excess, the following averments in the petition: "That on the said 23d day of February, 1895, said sheriff paid to defendant, Baker, as clerk of district court, the said sum of $399.80, and the same was receipted for by defendant, Baker, as clerk of said district court." This part of the petition was followed by statements that of the excess referred to but $199.40 had been paid, and that, too, by Baker's successor in office; and for the balance, with interest, which, upon demand, Baker had refused to

pay, there was a prayer for judgment. There was in the answer no denial whatever. The affirmative matters pleaded were that on April 29, 1895, Baker had been summoned as garnishee as a supposed debtor of Peterson, against whom a judgment had been rendered by a justice of the peace of Lancaster county; that Baker answered as such garnishee, and was required by said justice of the peace to pay into his court the sum for which this suit against him was afterwards brought, and that in compliance with this order in garnishment Baker paid said money to said justice of the peace. By the language quoted it was clearly stated that Baker, upon a decree rendered by the court of which he was clerk, as such clerk received and receipted for the sum for the recovery of which this action was begun. This is consistent with, and somewhat emphasized by, the further averment that he paid to his successor in office a portion of the amount, for which he had receipted. By the failure to deny these averments in the answer, their truthfulness was admitted. Code Civ. Proc. § 134. It was in view of these conceded facts that the answer alleged the defendant's discharge because of compliance on his part with the order of garnishment. In Association v. Hier, 52 Neb. 424, 72 N. W. 588, it was held that an equitable action would not lie to reach money in the hands of a clerk of the district court, and it was said that this immunity was because of the same considerations which forbade interference with such money by garnishment; in each case the reason being that the policy of the law was to protect officers, and avoid collision of authority and conflict of title. In Scott v. Rohman, 43 Neb. 618, 62 N. W. 46, there was an attempt to reach by garnishment a judgment rendered in the district court wherein had been rendered the judgment of which satisfaction was sought, and it was held that, under these circumstances, the reasons for immunity from garnishment had no controlling force, and, accordingly, the garnishment was held valid. There is in this case no justification for the modification of the rule necessary to guard the jurisdiction of the district court, and to protect its officers in the discharge of duties required of them as such. If the possession of the clerk had been independently of his duties as such, his answer should have disclosed that fact in this case. Viewed in the light of the uncontradicted averments of the petition, however, the answer admitted that the defendant had received and receipted for the money as an officer of the court, and in that capacity had turned over part of it to his successor, and for the balance there was no averment of facts sufficient to show that the money was not still in custodia legis. We think the demurrer to the answer was, therefore, properly sustained, and accordingly the judgment of the district court is affirmed.

BROWNELL & CO. v. FULLER et al. (Supreme Court of Nebraska. Jan. 5, 1899.) REPLEVIN JUDGMENT-PLAINTIFF IN POSSESSION.

In an action of replevin, where plaintiff was in possession of the personal property in dispute at the time of the trial, a judgment of the district court for a return of the property, or for its value of a certain fixed sum, must be reversed where there was no finding in the verdict with reference to such value.

(Syllabus by the Court.)

Error to district court, Douglas county; Powell, Judge.

Action by Brownell & Co. against John A. Fuller and Daniel W. Smith. Judgment for defendants, and plaintiff brings error. Reversed.

Lane & Murdock and Congdon & Parish, for plaintiff in error. B. N. Robertson, for defendants in error.

RYAN, C. This action of replevin was instituted in the district court of Douglas county by Brownell & Co., a corporation, against John A. Fuller and Daniel W. Smith, for the possession of a certain boiler and engine. It has once been in this court, and for a complete statement of the facts reference may be had to the opinion filed on that occasion. Fuller v. Brownell, 48 Neb. 145, 67 N. W. 6. After the cause was remanded, there was another trial, in which there was a judgment in favor of Fuller, of which plaintiff in its turn seeks a reversal by proceedings in error. Plaintiff in the district court gave bond as required by statute, and thus was in possession of the property in dispute at the time of the trial. The court instructed the jury to find for the defendant Fuller that at the commencement of the action he had the right of property and the right of possession of the property described in the petition. This instruction closed with this language: "You will further find the value of said property as shown by the evidence, together with interest thereon at seven per cent. per annum from the 13th day of January, 1891, to May 3, 1897." After receiving this instruction, the jury returned the following verdict: "We

do find

for said J. A. Fuller, and do find at the commencement of this action said defendant had the right of property and the right of possession of the boiler and engine in controversy herein, and do assess his damages at the sum of $500, together with interest thereon at the rate of seven per cent. per annum from January 13, 1891; total amount, $754 & 33 cents." There was a remittitur of $34.73, whereupon there was a judgment in favor of the defendant Fuller "that he recover from plaintiff his damages assessed at $219.60, or, in case return of said property cannot be had, that he recover of said plaintiff the value thereof, assessed at $500, and interest thereon, assessed at $219.60, and costs of suit."

It is required by section 191a, Code Civ. Proc., that in cases like this the judgment

shall be for a return of the property, or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property, and costs of suit. The instruction of the court therefore properly required the jury to find the value of the property as shown by the evidence, but the jury failed to do this, but found the damages to be $500. The court seems to have assumed that this was a finding equivalent to a finding of the value of the property, and accordingly its judgment was for a return of the property, or, in case a return could not be had, that defendant recover of plaintiff the value of said property, assessed at $500. There was in the verdict no attempt to fix the value of the property, and the judgment in that respect was for that reason without the support of a finding necessary to sustain it. It therefore cannot stand. Foss v. Marr, 40 Neb. 559, 59 N. W. 122; Gordon v. Little, 41 Neb. 250, 59 N. W. 783. The judgment of the district court, because of the error indicated, is reversed, and the cause is remanded for further proceedings. Reversed and remanded.

RYAN, C. This action was brought in the district court of Gage county upon the transcript of a judgment rendered by the district court of Poweshiek county, Iowa, and a recovery was had herein as prayed. In the petition filed in the district court of Gage county, it was alleged that the judgment in Iowa had been rendered by a court having general equity and common-law jurisdiction. There was no averment as to jurisdiction of the person of the defendant in the Poweshiek county district court. In the answer in this case in the district court of Gage county it was alleged that the action in Poweshiek county, Iowa, was upon an alleged negotiable promissory note claimed to have been executed by defendant and others; that at the time of the execution of said note, and at all times since, none of the purported makers

was a resident of Iowa; that said note was not payable at any particular place in Iowa in which a maker of said note was a resident; and there was a denial that said action in Iowa was brought where any defendant, being a maker of said note, resided. In this connection it was alleged in the answer that the provisions of section 2586, c. 4, 2 McClain's Ann. Code Iowa, governed as to the place where suit must be brought in that state, and that the provisions of said section applicable are in this language: "But in all actions upon negotiable paper, except when made payable at a particular place, in which any maker of such paper, being a resident of the state, is made defendant, the place of trial shall be limited to the county wherein some of the makers of such paper reside." It was, therefore, in the answer, denied that the district court of Poweshiek county, Iowa, had jurisdiction of the subject-matter of the action, or of the person of the defendant. There was no reply to the averments of the answer herein, and these averments of facts disclosing the want of jurisdiction of the district court in Iowa were, therefore, admitted to be true. Lumber Co. v. Ashby, 41 Neb. 292, 59 N. W. 913. There was in this case, under the facts and statute pleaded in the answer, a tacitly confessed want of jurisdiction in the district court of Poweshiek county, Iowa, to render a judgment against the defendant; and such a judgment (rendered, as we must assume, without jurisdiction) furnished no sufficient evidence to sustain a judgment in any of the courts of this state. The judgment of the district court is, therefore, reversed, and the cause is remanded for further proceedings. Reversed and remanded.

1. Where a deed is delivered to the grantee by the grantor, it at once becomes operative as a conveyance, if such was the intention of the parties, even though the instrument was not to be recorded during the lifetime of the grantor.

2. The destruction of a deed after its deliv ery does not devest the title of the grantee.

3. The surrender of an unrecorded deed by the grantee to the grantor will not reinvest the title in the latter.

4. The findings and judgment are not supported by the evidence.

(Syllabus by the Court.)

Error to district court, Otoe county; Chapman, Judge.

Action by Hattie W. Brown against Ephriam P. Hartman. Judgment for defendant, and plaintiff brings error. Reversed.

M. L. Hayward and Paul Jessen, for plaintiff in error. John C. Watson, for defendant in error.

NORVAL, J. This was an action in ejectment to recover about 90 acres of land in Otoe county. The petition contained the usual averments, and the answer was a general denial. A trial resulted in a judgment for plaintiff below, Hattie W. Brown. A second trial was awarded under the statute, which terminated in a judgment for the defendant, to reverse which is the purpose of this proceeding.

The sole question presented is whether the findings and judgment are sustained by the evidence. The trial was to the court, without the aid of a jury, and much immaterial and incompetent evidence was adduced, which, upon review, must be wholly disregarded. Plaintiff and defendant are sister and brother, and their mother, Sarah Hartman, owned the land in controversy. Both parties claim title through her; the plaintiff by warranty deed executed by Mrs. Hartman on December 11, 1891, and the defendant under a deed executed by Mrs. Hartman and her husband on January 12, 1894. It is asserted by the defendant, and the trial court evidently so found, that the deed to plaintiff was never delivered to her by the grantor for the purpose of vesting title to the real estate in the grantee. There is no conflict in the evidence bearing upon the question. The plaintiff and her husband were the only witnesses examined upon that point. It is disclosed from their testimony that Mrs. Hartman, while at the home of her daughter, Mrs. Brown, in December, requested the husband of the latter to prepare the deed for the land to the daughter, to carry out the desire the grantor had more than once expressed to convey the premises to her said daughter. The deed was drawn as requested, reserving therein an estate for life in Mrs. Hartman, which instrument she signed in the presence of, and acknowledged the execution thereof before, F. E. Brown, the grantee's husband, as a notary public. The evidence is positive that the deed was thereupon, by Mrs. Hartman, delivered to her daughter with the request that she keep the same, but not record it until after the grantor's death; the reason she assigned therefor at the time being "that certain members of the family would kick up a family quarrel if they found it out," and for this reason alone it was withheld from the record. The deed was delivered by plaintiff to her husband for safe-keeping, who placed the same in his safe, where it remained from December, 1891, until January 10, 1894, when, at the request of Mrs. Hartman, who at the time was very ill, and confined to her bed, Mrs. Brown obtained the deed, and, after having a copy made, handed the original to her mother, without any intention on the part of plaintiff to reinvest the title to the premises in Mrs. Hartman, but solely for the purpose of pacifying the latter. To the question propounded to plaintiff on cross-examination by defendant's counsel, "How did you happen to deliver that deed to your mother?" the witness answered, "She was sick at

the time, and told me that she wanted it; and I would do anything to please her, so I gave it to her." Shortly after Mrs. Hartman received the deed, it was destroyed by the defendant, but whether at the request of the plaintiff or her mother the witnesses do not agree in their statement of the occurrence. It is, however, testified to positively by plaintiff, and there is no conflict in the evidence on the point, that Mrs. Hartman, before obtaining the deed, did not inform her daughter that she was going to have it destroyed, but, on the contrary, stated to Mrs. Brown that "she wanted to put it in her box with the rest of her papers." Mrs. Hartman died on February 2, 1894. The deed to plaintiff was executed and delivered for some purpose, and all the testimony tends to show that the object of its execution-and the only one-was to invest the title to the property in Mrs. Brown. That it was not testamentary in its character, to take effect alone on the death of the grantor, is evidenced by the fact that the deed contained a clause reserving a life estate in Mrs. Hartman. If the intention of the parties was that the title was not to pass during the lifetime of the grantor, then there was no occasion for inserting the provision just mentioned. The evidence satisfies us, and no other legitimate conclusion can be drawn from the proofs in this record, than that the deed was delivered and received with the intention that it should become effective at once as a conveyance of the property. Only the recording of the instrument was to be delayed until after the death of the grantor. This case, in some of its principal features, is like the case of Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439. There a mother signed and acknowledged a deed conveying to her daughter, subject to a life estate, lots in the city of Lincoln. The deed was delivered to the officer taking the acknowledgment for the use of grantee, with the understanding that he was to retain possession of the instrument until the death of the mother, when it was to be filed for record. Subsequently the deed was left in the possession of the mother, and was destroyed, or had been lost. It was held that the title passed to the daughter upon the delivery of the deed to the officer, and the subsequent loss or destruction of the instrument did not operate to devest her title. Neither the surrender of the deed in the case at bar by the daughter to her mother nor the subsequent destruction operated as a reconveyance of the title. Brown v. Westerfield, supra; Bunz v. Cornelius, 19 Neb. 107, 26 N. W. 621; Connell v. Galligher, 39 Neb. 793, 58 N. W. 438; Devl. Deeds, § 300, and cases there cited; Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2; and authorities cited in brief of plaintiff. We are cognizant of the rule, and have often applied it, that a decree based on conflicting evidence will not be molested on appeal. the present case does not fall within that principle. There is absolutely no competent evidence to support the finding of the trial

But

Judge that the deed was delivered to plaintiff's husband by the grantor, to be retained by him until called for by the grantor. The evidence is clear and convincing that there was an actual delivery of the deed to the plaintiff by the mother with the intention of conveying the title. The deed upon such delivery be came operative as a conveyance. The defendant was aware of plaintiff's deed when the deed to him was executed. The judgment is reversed, and the cause remanded. Re versed and remanded.

TERRY v. MORAN et al.

(Supreme Court of Minnesota. Jan. 11, 1899.) MORTGAGES-PRIORITIES.

Two mortgages on the same land, but each to a different mortgagee, were dated the same day, executed and recorded at the same time, and both mortgagees were represented by the same agent. Held, on the evidence, the court did not err in finding that the mortgages were co-ordinate, and in refusing to find that one mortgagee, through such agent, promised the other that the latter's mortgage should be prior. (Syllabus by the Court.)

Appeal from district court, Ramsey county; Olin B. Lewis, Judge.

Action by Caroline S. Terry against John D. Moran and others. From an order denying & new trial, plaintiff appeals. Affirmed. William G. White, for appellant. H. Mead and Michael & Johnston, for respondents.

Warren

CANTY, J. Plaintiff brought this action to foreclose a mortgage held by her on a certain parcel of land in St. Paul. On the trial the court found that plaintiff's mortgage and another mortgage held by defendant Frances A. Mead are co-ordinate and of equal priority. Plaintiff appeals from an order denying a new trial.

The only error complained of by appellant is the failure of the court to find that her mortgage is superior to the Mead mortgage. In 1883, Frances A. Mead was the owner of the land, and conveyed it to one Collins for the consideration of $3,000. He paid her $500 in cash, and executed to her a mortgage for $2,500 to secure the balance of the purchase price. Nearly five years afterwards plaintiff loaned Collins $600, receiving as security for the loan a second mortgage on the land. Three months later plaintiff loaned him $2,500, and he executed to her another mortgage on this land to secure the repayment of the same. The defendant Warren H. Mead acted for her in making these loans, and made them out of her money, which he had in his hands to loan for her according to his best judgment. When he made the latter loan, he applied $1,200 of the money so loaned as a part payment on the mortgage of his wife, Frances A., who at the same time executed to Collins a release of her mortgage, and received from him a new mort