Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub 07/09/2019 03:30 PM CDT REPORTS OF CASES IN TUE SUPREME COURT OF NEBRASKA. JANUARY AND JULY TERMS, 1873 AND 1874. By LORENZO CROUNSE, COUNSELOR-AT-LAW. REPRINTED: STATE JOURNAL COMPANY, LINCOLN. 1901. Entered according to Act of Congress, in the Office of the Librarian of Congress, A. D. 1874. By LORENZO CROUNSE. NEW ASSIGNMENT. JUDGES OF THE SUPREME COURT OF NEBRASKA. CHIEF JUSTICE, GEORGE B. LAKE. ASSOCIATE JUSTICES, DANIEL GANTT. SAMUEL MAXWELL. ATTORNEY GENERAL, JOSEPH R. WEBSTER. REPORTER, LORENZO CROUNSE. CLERK, GUY A. BROWN. PREFACE. THE general plan adopted by my predecessor has been followed in this volume. The opinions, however, have been collected and arranged under the head of the terms. respectively, at which they were delivered. This arrange ment begins with the first term held by the present Jus tices. In cases where decisions were announce I before, but the opinions have been subsequently filed, the opin ions are collected in an appendix. Liberty has been taken to omit portions of the briefs of counsel, where they are quite lengthy-particularly such parts as relate to questions not considered by the court, and some attention has been given to verifying references, to see that the correct volume and page are given. My time having been mostly engaged in other direc tions, this volume has mainly been prepared by Guy A. BnowN, Esq., of Lincoln. His relation to the court for years, and his experience in coni iling the General Stat utes of Nebraska, have qualified him to bring into the work that perspicuity and accuracy so desirable in the reports of judicial decisions. My labor has been little more than revisory. L. CROUNSE. LiNCOLN, October, 1874. SUPREME COURT RULES. ADOPTED JULY TERM, 1869. RULE I. The transcript of all records filed in any case shall be either printed or written in a fair legible handwriting, with marginal reference to each paper or order compos ing the record. And any record may be stricken from the files for non-compliance. And in no case shall the fees of the clerk be taxed for a transcript of a record not prepared in compliance with this rule. RULE II. Before entering upon the argument of any cause, counsel for the respective parties shall furnish to each member of the court, and to the opposing counsel, one copy; and to the clerk of the court for the use of the reporter, three copies of his brief or argument, neatly printed on good quality of paper, with a margin of at least an inch and a half. RULE III. Either party to a cause in this court may have the record therein when deemed proper, printed; and the cost thereof, not exceeding ten copies, shall, if the court so order, be taxed in the costs. 'S SUPREME COURT RULES. RULE IV. Transcripts of records prepared for the supreme court should be made substantially in the manner following: Pleas before the District Court of Nebraska, at a term begun and holden in the county of.. on the. day of . ... A. D. 18. ., before the Ifon. J. H. G., Judge of the .udicial .JDistrict of the State of Nebraska. A. B. C. D........ Be it remembered, that heretofore, to-wit: on the.... day of. .. A. D. 18. .. , a petition was filed in the office of the clerk of the District Court, in and for the county of .... in the words and figures following, to-wit: [Here insert the petition in full.1 [Proceed in the same manner In relation to whatever paper is filed, such the as original notice, or a petition for attachment, etc.] If the cause has come from another county by a change of venue, Legin as above, "Be it remembered," and state in manner all that was done in the county front which the venue was changed. And afterwards there was filed in the office of the said clerk a notice in the words and figures following, to-wit: [Here insert the notice in full.] And afterwards, to-wit: on the ..... day of ..... A. D. 18. there was filed in the office of said clerk, an answer in the words and figures following, to-wit: [Here insert answer in full.] [Should the clerk doubt what the paper properly is, let him call it a "paper in the words and figures following," etc.] Where a paper is filed in term time, add the day of the term to the day of the mo.,t,, as in the next form. And afterwards, to-wit: on the . day of .... A. D. 18. .. , it being the.....day of the.....Term of the said SUPREME COURT RULES. 9 Court. the said A. B. (or plaintiff) filed the following demurrer to the answer of said C. D. (or of the said defendant), to-wit: [Here insert demurrer in full.] [If a party files more than one pleading at the same time, they should be numbered in their legal order, as for instance, a demurrer, and answer, and the transcript may say . (stating the date) . the said C. D. (or de fendant) filed his demurrer, and answer, which are filed de bene ese, or sub ject to the rule.] And now, on this.. .day of ..... A. D. 18.. ., it being the. day of the said. term thereof, this cause com ing on for hearing on the plaintiff's demurrer to the de fendant's answer, [copy the entry of the proceedings of the court, sustaining or overruling the demurrer.] And afterwards,. on the. ... day of the said.. .it being the. day of the said term, the said plaintiff filed his replication in the words and figures following, to-wit: [Here set out replication In full.] And afterwards, on the same day, the said defendant filed motion and affidavit for a continuance, as follows, to-wit: [Here set out copy of motion and affidavit.J And the same being now heard and considered by the court, the said motion is sustained, and it is ordered that this cause be continued until the next term of the court, (at the cost of the defendant.) In District Court,. .. County. A. B... agt. Term, A. D. 18 C. D... .... And now, on this.... day of....., it being the .... day of said term, this cause coming on for trial, came a jury, to-w it:......... ........ ,........,........ ........ .. ., twe ve good and lawful men, who were sworn well and truly to try the issue between the said parties, and a true verdict to render, according to the law and 10 SUPREME COURT RULES. evidence given them in court. The jury retired to con sider on their verdict, and afterwards, on the same day, the jury returned into court and rendered their verdict, as follows: [Here insert in full the verdict as rendered.] (Or If the jury does not return until next day) A. B... agt. C. D........ And now, on-this.....day of ...... , A. D. 18..., the jury in the foregoing cause returned into court and ren dered their verdict as follows: [Here insert in full the verdict as rendered.] And afterwards, on the.....day of......A. D. 18..., being the ..... day of said term, the plaintiff (or defend ant) filed his bill of exceptions in the words and figures following, to-wit: [Here insert in full the bill of exceptions.] Now, on this.. .day of . .A. D. 18. ., the plaintiff filed his motion for a new trial, to-wit: [Here insert in full the motion for a new trial.] And now, on this......day of ...... A. D. 18..., this cause coming up for hearing on the motion of the plain tiff for a new trial, it is considered by the court that the same be overruled (or, as the case may be.) Then add final entries of record, comprising final judg ment, etc., and certificate of clerk. NOTE.-The foregoing form is only an example, and is to be varied accord ing to the circumstances. The actual facts of the case will dictate what is to be done, but in all cases it Is to be done substantially in like manner with the above, giving the proper order and date of the filing of papera,and incorporat ing them at the proper dates into the proceedings of the court. It will be understood that it is not necessary in all instances to send up the whole of the record, but the clerk may be guided by the directions of the ap pellant or plaintiff in error. See also as to transcripts for Supreme Court. Morgan r. Larph, 1 Neb., 381. McDonald t. Peniston, 1 Neb., 324. Smith v. F(fe, 2 Yeb., 10. TABLE OF CASES REPORTED B. PAC E. Bergen, et ux., Morgan, et ux., v....... .. 209 Bessinger, Schade and Scbade v.......... 140 Bouvier, Conrvoisier v......... ... Boyer v. ( ,k and McCandless...... 1ti SET-OFF: Attorney s Lie, -Unlifidated damages. Brown v. Hurs ................ 353 PRACTICE: New Trial-Verdic -Exceptions to Charge. Brown, McCallum v .............. 872 Butterfield, Philo v............... .. 256 C. Calhoun and Croxtono, Irwin v.......... 453 Case, Tecumseh Town Site........... 267 Case, Tennaut's............... .. 409 Case, Till's. .............. 261 Caw v. The People............ .. 357 CRI:NAL LAW: Evidence-Res gestae-Statutes Construed. PRACTICE IN CRIMINAL CASES: Instructions to Jury-Separa tion of Jury. Clark, Boyer v. ......... ...................... 161 Courvoiser v. Bouvier . 65 PLEADING: Averment of petition which seeks to have a trust declared. Crook, Wanisley v............. 344 Cropsey v. Wiggenhorn . ............... 108 P'ACTICE: Verification of pleadings-Appearance-Motion for a New Trial. Crowell and Crowell v. Galloway......... .. 215 PRACTICE: Return day of Summons-Endorsement of Sum mons-Appeararsce.