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+"{\"id\": \"12555210\", \"name\": \"Mark Alan CARLSON, appellant, v. Karen Sue CARLSON, appellee.\", \"name_abbreviation\": \"Carlson v. Carlson\", \"decision_date\": \"2018-04-06\", \"docket_number\": \"No. S-17-064.\", \"first_page\": \"351\", \"last_page\": 363, \"citations\": \"909 N.W.2d 351\", \"volume\": \"909\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-27T21:03:12.209792+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.\", \"parties\": \"Mark Alan CARLSON, appellant,\\nv.\\nKaren Sue CARLSON, appellee.\", \"head_matter\": \"Mark Alan CARLSON, appellant,\\nv.\\nKaren Sue CARLSON, appellee.\\nNo. S-17-064.\\nSupreme Court of Nebraska.\\nFiled April 6, 2018.\\nAdam E. Astley and Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for appellant.\\nBenjamin M. Belmont and Wm. Oliver Jenkins, Omaha, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.\\nHeavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.\", \"word_count\": \"4956\", \"char_count\": \"30556\", \"text\": \"Stacy, J.\\nThis appeal arises from a dispute over the meaning of provisions in a divorce decree and incorporated property settlement agreement (PSA) regarding payment of post-majority child support. The district court construed the decree and incorporated PSA to require the father to pay post-majority child support if certain conditions were met, and it denied the father's request to modify such support. Finding no error, we affirm.\\nFACTS\\nMark Alan Carlson and Karen Sue Carlson married in 1994 and divorced in March 2008. Three children were born during the marriage. At the time of the divorce, the children were 6, 8, and 10. Mark and Karen are both physicians, but Karen did not actively practice medicine during most of their marriage.\\nThe parties represented themselves during their divorce. Through mediation, they reached an agreement on the division of their assets and debts, the custody and support of their children, and the payment of alimony. The mediator drafted the parties' PSA and the dissolution decree. The record on appeal does not include the hearing at which the parties proved up their PSA and asked the court to approve it, but it does contain the signed and notarized PSA, as well as the consent decree entered by the court.\\nAs relevant here, the parties agreed they would have joint legal custody of the children and Karen would have physical custody. Mark agreed to pay both child support and alimony. The decree addressed child support as follows:\\n[Mark] shall pay . child support . commenc[ing] on the first day of the first month following the entry of the decree and shall continue to [pay] each month thereafter, until the child reaches the age of majority under Nebraska law, becomes emancipated, becomes\\nself-supporting, marries or dies, or until further order of the court.\\nThe decree also recited that the parties had negotiated a PSA which the court had examined and \\\"found to be fair and reasonable and conscionable.\\\" According to the decree, a signed copy of the PSA had been filed with the clerk and the agreement was \\\"incorporated [in the decree] with the same force and effect as if set forth in this decree in its entirety.\\\" The decree further recited that the \\\"parties' [PSA] shall be enforced by all remedies available for the enforcement of a judgment, including contempt proceedings.\\\" No party appealed from the entry of the decree.\\nINCORPORATED PSA\\nSection 3 of the PSA is titled \\\"Child Support and Expenses, Educational Expenses, Health Insurance and Care Expenses and Life Insurance.\\\" It provides in relevant part:\\n3.01 Terms and Definitions.\\n.\\n(2) Age of Majority The age of majority for most legal purposes is 19 and generally defines when child support is terminated unless the parties agree otherwise, or circumstances set by law apply.\\n.\\n(4) Support Past Age 19: A child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:\\na. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first. (The child must be regularly attending college (enrolled in 12 or more credit hours of course work per semester) or a vocational school. (However, the parties intend to allow some flexibility in the child's college attendance, therefore a child may have up to two (2) semester[s] of nonattendance at school, not\\nincluding summer vacations, without being understood to be emancipated.[ ) ]\\n.\\n3.02 Child Support\\n(1) MARK shall pay to KAREN the amount of $2,400.00 per month for the support of three children, $2,089.00 per month when two children remain eligible for support and $1,468.00 per month when only one child is eligible for child support. Child support will be payable until each child reaches majority, becomes emancipated, marries or dies or until further order of the court as provided by law.\\nFor the sake of completeness, we note the PSA contains a definition of \\\"emancipation\\\" which does not expressly reference post-majority child support. Neither party suggests that provision is determinative of the issues presented, so we do not address it. We also note the PSA addressed payment of post-majority child support if a child becomes mentally or physically incapacitated, but the parties did not seek a declaratory judgment regarding the interpretation of such provisions so we express no opinion thereon.\\nCOMPLAINT TO MODIFY\\nIn March 2010, Mark filed a complaint to modify the decree as it regarded post-majority child support, alimony, health care expenses, and college expenses. He claimed, inter alia, that the court lacked jurisdiction to order child support after a child attained the age of majority, and he claimed he should not be required to pay both post-majority child support and college expenses for the same child.\\nIn January 2011, the parties stipulated to an order modifying the decree to, among other things, reduce Mark's alimony payment and increase his monthly child support obligation. The stipulated order reflected that Mark had withdrawn \\\"without prejudice\\\" his request for an order terminating his obligation to pay post-majority child support. And the stipulated order expressly provided that all provisions of the decree and PSA \\\"not specifically altered by this Order shall remain in full force and effect.\\\"\\nCONTEMPT PROCEEDINGS\\nIn January 2015, the parties' oldest child turned 19. She was a full-time college student at the time. Mark stopped paying child support for this child, and Karen filed an application to show cause why Mark should not be held in contempt of court for willfully failing to pay post-majority child support.\\nAt the show cause hearing, both Mark and Karen were represented by counsel. After a meeting in chambers between the court and counsel, Karen withdrew her contempt application and instead filed the complaint for declaratory judgment which is at issue in this appeal.\\nCOMPLAINT AND COUNTERCLAIM FOR DECLARATORY JUDGMENT\\nKaren's complaint sought a declaration of the rights, duties, and obligations of the parties under the dissolution decree as it regarded post-majority child support. Specifically, she sought a declaration that under the PSA incorporated into the decree, Mark had an obligation to continue paying child support past the age of majority for a child attending college.\\nIn a counterclaim, Mark also sought a declaratory judgment regarding post-majority child support. As relevant to the issues on appeal, Mark sought a declaration that the provisions regarding post-majority child support were unenforceable or, in the alternative, that any obligation to pay post-majority child support was \\\"completely discretionary on the part of the person paying it.\\\" Alternatively, Mark sought modification of the decree to relieve him of any post-majority child support obligation, alleging there had been a material change in circumstances.\\nBoth parties moved for summary judgment on their requests for declaratory judgment. The trial court denied both motions and set the matter for trial.\\nTRIAL\\nBy the time of trial, two of the parties' children had reached the age of majority, and each was a full-time college student. At trial, the parties were allowed to present extrinsic evidence as to the meaning of the PSA incorporated into the decree. Neither party had a clear recollection of how the language regarding post-majority child support came to be in the PSA. According to Karen, the mediator brought up the issue of supporting the children through college, and Mark had no disagreement, so the provisions regarding post-majority support were included in the PSA with \\\"no discussion.\\\" Mark testified he intended the agreement to be flexible and \\\"leave[ ] the door open\\\" to paying post-majority child support if Karen was unable to return to employment as a physician after the divorce. The attorney who mediated the property settlement agreement invoked the statutory privilege and refused to testify about mediation communications.\\nUltimately, the district court concluded that the decree and incorporated PSA obligated Mark to pay post-majority child support for any child regularly attending college, trade school, or graduate school, until the child attained the age of 27 or graduated, whichever first occurred. Regarding Mark's complaint to modify, the court noted the agreement to pay post-majority child support was contained in the parties' PSA which had been approved by the court and incorporated into the decree. It thus reasoned the approved PSA could not be vacated or modified in the absence of fraud or gross inequity. The court found Mark had neither alleged nor offered evidence of fraud or gross inequity, and it denied his complaint to modify.\\nThe court entered an order granting Karen's request for declaratory judgment, denying Mark's counterclaims, and awarding Karen attorney fees and costs in the amount of $3,500. Mark filed this timely appeal, which we removed to our docket pursuant to our authority to regulate the caseloads of the appellate courts of this state.\\nASSIGNMENTS OF ERROR\\nMark assigns that the district court erred in (1) finding the decree was ambiguous, (2) interpreting the decree and property settlement to require post-majority child support, (3) granting declaratory relief to Karen, (4) failing to consider his request for modification of the post-majority support obligation, and (5) awarding $3,500 in attorney fees to Karen.\\nSTANDARD OF REVIEW\\nAn action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. The meaning of a divorce decree presents a question of law, in connection with which an appellate court reaches a conclusion independent of the determination reached by the court below.\\nWhen a declaratory judgment action presents a question of law, an appellate court has an obligation to reach its conclusion independently of the conclusion reached by the trial court with regard to that question.\\nANALYSIS\\nBefore addressing the assignments of error we address two threshold issues.\\nUSE OF DECLARATORY JUDGMENT TO CONSTRUE DECREE\\nBoth parties sought a declaratory judgment interpreting their rights and obligations under the consent decree and incorporated PSA. Our case law has generally permitted the use of declaratory judgment actions to resolve genuine disputes over the meaning of language in a dissolution decree. But parties have also resolved similar issues via complaints to modify, contempt proceedings, motions to enforce the judgment, and motions to determine amounts due under the decree. Without endorsing any particular procedure, we observe the general rule that an action for declaratory judgment does not lie where another equally serviceable remedy is available. In this case, no party has challenged the availability of declaratory relief or alleged that a more serviceable remedy is available. We therefore assume, without deciding, that it was proper for the district court to entertain the parties' requests for declaratory judgment.\\nPARTIES' SUBJECTIVE INTENT IS IRRELEVANT\\nIn addressing the parties' dispute over the meaning of the decree and incorporated PSA, the district court and the parties relied, in part, on traditional contract principles. For example, the court found the PSA was ambiguous regarding the payment of post-majority child support, and it thus allowed the admission of extrinsic evidence of the parties' intent. As a general matter, if a contract is ambiguous, the meaning of the contract is a question of fact and a court may consider extrinsic evidence to determine the meaning of the contract. But in the present case, we are not dealing with a contract; we are dealing with a judgment.\\nThe intentions of the parties regarding the PSA may have been relevant when the dissolution court was examining the agreement to determine whether it was fair and reasonable, not unconscionable, and in the childrens' best interests. But once the PSA was approved by the court and incorporated into the decree, it became a judgment of the court. Thereafter, the parties' subjective interpretations and intentions were irrelevant to the court's declaration of the meaning of the decree.\\nIn both Ryder v. Ryder and Rice v. Webb , this court specifically disapproved of the application of contract principles to a PSA that had been incorporated into a dissolution decree. In Ryder, we held:\\nOnce a property settlement agreement has been incorporated into a dissolution decree, the contractual character of the agreement is subsumed into the court-ordered judgment. \\\" 'At that point the court and the parties are no longer dealing with a mere contract between the parties.' \\\"\\n. [W]hen a decree is ambiguous, \\\"the parties must bring some form of action which raises the issue and thereby requires the court before whom the matter is then pending to resolve the issue as a matter of law in light of the evidence and meaning of the decree as it appears.\\\"\\nThus, in the present case, we are considering the meaning of a judgment rather than a contract.\\nA decree is a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself. With this standard in mind, we address the assignments of error.\\nNO ERROR IN FINDING DECREE AMBIGUOUS\\nMark assigns error to the trial court's finding that the terms of the decree and incorporated PSA were ambiguous. He concedes the documents are poorly drafted but suggests that \\\"after reviewing the document five or six times, a single meaning becomes clear.\\\" Mark suggests that \\\"when read in a vacuum [the language of the decree] is susceptible to only one meaning, which is that child support ends when each child reaches the age of majority under Nebraska law, becomes emancipated, becomes self-supporting, marries or dies, or until further order of the court.\\\" We understand this argument to suggest that if the decree is construed without reference to the language of the incorporated PSA, there is no ambiguity. But we reject the invitation to construe the decree without considering the terms of the PSA that was expressly incorporated into the decree at the parties' request.\\nWhether a judgment is ambiguous is a question of law for which the appellate court has an obligation to reach a conclusion independent from the lower court's conclusion. Ambiguity in a judgment exists when a word, phrase, or provision therein has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.\\nWe agree with the district court that the decree and incorporated PSA are ambiguous regarding the parties' rights and obligations concerning payment of post-majority child support. The fact that the parties advance differing interpretations does not, by itself, compel the conclusion that the PSA is ambiguous. But we agree that the conflicting interpretations advanced by Mark and Karen illustrate an ambiguity in the PSA which necessitated construction.\\nAs it regards the payment of post-majority child support, the operative language in the PSA provides:\\nA child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:\\na. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first.\\nMark argues the phrase \\\"may continue\\\" indicates that payment of post-majority support is discretionary and allows him the flexibility to decide whether such support is necessary under the circumstances. Karen argues the language creates an affirmative obligation to pay post-majority child support so long as the conditions of college attendance are satisfied. Although we ultimately reject Mark's interpretation, we agree the operative language of the PSA is susceptible to at least two reasonable but conflicting interpretations, and we thus agree with the district court that it is ambiguous. Mark's first assignment has no merit.\\nWe also reject as incorrect the suggestion in Mark's briefing that the presence or absence of ambiguity in a decree affects our standard of review. This court has long held that the meaning of a dissolution decree presents a question of law, and we recently clarified that even if ambiguity exists in a dissolution decree, its meaning nevertheless presents a question of law that we review de novo.\\nNO ERROR IN CONSTRUING DECREE\\nMark's main contention on appeal is that the district court erred in construing the decree and incorporated PSA to require him to pay post-majority child support under certain circumstances. Mark contends the court should have interpreted the decree to provide that his obligation to pay child support ends when the children reach the age of 19 and that any continued payment of support post-majority is entirely discretionary. The district court rejected this construction. After our independent review of the four corners of the decree and incorporated PSA, we do too.\\nThe parties' primary disagreement relates to the proper interpretation of the phrase \\\"may continue\\\" as used in the operative provision of the PSA:\\n(4) Support Past Age 19: A child will not be determined to be emancipated and child support may continue past age 19 in the following circumstances:\\na. If a child attends college or vocational training, child support may continue until age 27 or graduation from college, trade school, or graduate school, whichever occurs first. (The child must be regularly attending\\ncollege (enrolled in 12 or more credit hours of course work per semester) or a vocational school. (However, the parties intend to allow some flexibility in the child's college attendance, therefore a child may have up to two (2) semester[s] of nonattendance at school, not including summer vacations, without being understood to be emancipated.[ ) ]\\nMark suggests the term \\\"may\\\" is permissive and affords him the discretion to pay post-majority child support if he thinks it is needed. We reject this construction not only because it invites construing the judgment to be conditional upon Mark's decision to pay, but because there is no support for such a construction within the four corners of the judgment.\\nInstead, considering the entirety of the decree and incorporated PSA, we find the parties agreed to an affirmative obligation to pay post-majority child support so long as the agreed-upon conditions precedent are satisfied. Those conditions include that the child be regularly attending college, trade school, or graduate school and not have attained the age of 27. This construction is compelled by several provisions within the judgment.\\nSection 3.01(2) of the PSA recognizes that child support generally terminates when the child turns 19 \\\"unless the parties agree otherwise.\\\" Section 3.01(4) then reflects the parties' agreement that the children \\\"will not be determined to be emancipated and child support may continue past the age of 19\\\" under specific enumerated circumstances. Within this framework, the phrase \\\"child support may continue past age 19\\\" in \\u00a7 3.01(4) is not permissive or discretionary; rather, it reflects the prior acknowledgment that ordinarily child support terminates at age 19.\\nThat the payment of post-majority support is not discretionary is further supported by language in the PSA acknowledging the possibility that payment of post-majority child support will overlap with the separate obligation to contribute to college expenses under the agreement. In that regard, the PSA provides:\\n3.03 Educational Expenses: Trade School or College Education Costs and Expenses\\n(1) The parties agree that should any of the children desire to attend college (trade or vocational school after high school) and be accepted to a school, the parties shall be responsible to provide for the costs and expenses of that education in an amount no more than the cost of an education at the primary state college or university (University of Nebraska-Lincoln) in the state where the children may reside at the time the child has been accepted, regardless of where he/she may attend school or college.\\n(2) This Agreement contemplates a four-year undergraduate college education that may extend beyond the age of majority as long as the child is in good standing as a student, but in no event beyond the child's 23rd birthday.\\n.\\n(5) The parties understand that amounts paid for the college educations of the children still may not fully cover other child care expenses including car insurance, clothing, recreation, or time spent at home during vacations. Alternatively, the amounts being paid in child support by one party to the other party may duplicate amounts being paid for college room and board. The parties agree to negotiate, or if necessary, mediate the balance between payment of child support and college costs and expenses if and when a child attends college.\\n(6) These provisions are intended to set out the minimum amounts obliged to be paid by a parent to assure that the children obtain further training or an undergraduate college education, should the children be capable and desire to so do. These provisions are not intended to\\nlimit the additional contribution either parent may voluntarily make toward a child's undergraduate or graduate school education.\\nThese provisions not only acknowledge the potential for duplication between payment of post-majority child support and payment of college expenses, but also express the intent of the parties to \\\"set out the minimum amounts obliged to be paid\\\" to continue supporting a child beyond the age of majority who wishes to pursue further education.\\nWe hold that the decree and incorporated PSA affirmatively obligate Mark to pay post-majority child support so long as the conditions set forth in \\u00a7 3.01(4) of the PSA are met. We find this construction is supported by the language of the judgment, can be harmonized with the standard child support language set out in the decree, and results in a sensible construction that is consistent with the best interests of the children.\\nNO ERROR IN DENYING COMPLAINT TO MODIFY\\nIn a counterclaim, Mark sought to modify the decree based on a material change in circumstances in the event the court determined he was obligated to pay post-majority child support. The district court denied his request to modify. It reasoned that the post-majority child support was agreed to in a PSA that had been approved by the court and incorporated into the decree and as such it could be vacated or modified only upon a showing of fraud or gross inequity. The court concluded Mark had failed to allege or prove fraud or gross inequity, and it denied the modification.\\nOn appeal, Mark argues the court applied the wrong legal standard. He claims that rather than being required to show fraud or gross inequity, he should have been permitted to modify the terms of his post-majority child support upon showing a material change in circumstances. In making this argument,\\nMark relies on the statutory provisions and case law governing modification of statutory child support for minors.\\nBut the present case does not involve modification of statutory child support for a minor and requires us to answer a different question: Under what circumstances can a party seek to vacate or modify an approved PSA that requires payment of post-majority child support? To answer this question, we look to our jurisprudence on post-majority child support.\\nAs a general rule, absent agreement of the parties, a Nebraska district court cannot order a party to pay child support beyond the age of majority. In Zetterman v. Zetterman , however, we held that a court can enforce an approved PSA voluntarily entered into by the parties which provides for post-majority child support. We held that a district court, \\\"in the exercise of its broad jurisdiction over marriage dissolutions, retains jurisdiction to enforce all the terms of approved property settlement agreements, including agreements made to support children of the marriage past the age of majority.\\\" Thus, pursuant to Zetterman, if the parties voluntarily include a provision for post-majority child support in an approved PSA, a district court has the authority to enforce that provision.\\nWe have not yet addressed whether a district court has the authority to modify such a provision and, if it does, what standard applies to the modification. The general consensus of other jurisdictions that, like Nebraska, hold that a court lacks authority to impose an obligation to pay post-majority child support but can enforce an agreement to pay such support made via an approved PSA is that post-majority child support can be modified using either the standard adopted by the parties in their agreement or the standard applied in that jurisdiction to modify an approved PSA. The rationale for such a rule is that the court could not have imposed the post-majority child support obligation in the first instance, so it lacks the authority to modify it as a child support obligation.\\nWe agree with this rationale and find it is consistent with our holding in Zetterman . We thus hold that a provision for post-majority child support in an approved PSA can be modified either as agreed to by the parties in the agreement or according to the general standard for modifying an approved PSA under Nebraska law.\\nIn this case, neither the decree nor the incorporated PSA contained provisions for modifying post-majority child support. Thus, Mark's request for modification of post-majority support will be governed by the general standard for modifying an approved PSA under Nebraska law.\\nThis court has consistently held that where parties to a divorce action voluntarily execute a PSA which is approved by the dissolution court and incorporated into a divorce decree from which no appeal is taken, its provisions as to real and personal property and maintenance will not thereafter be vacated or modified in the absence of fraud or gross inequity.\\nThe district court correctly applied this standard to Mark's complaint to modify the post-majority child support provision and properly found he had not met his burden of proof in that regard. Mark's arguments to the contrary are without merit.\\nNO ERROR IN AWARD OF ATTORNEY FEES\\nThe district court awarded Karen $3,500 in attorney fees and costs. Mark assigns this as error. In an action for the dissolution of marriage, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Having reviewed the parties' arguments and the record, we find no abuse of discretion in the award of attorney fees.\\nCONCLUSION\\nFor the foregoing reasons, we affirm the judgment of the district court.\\nAFFIRMED .\\nKelch, J., not participating in the decision.\\nWright, J., not participating.\\nSee Neb. Rev. Stat. \\u00a7 25-2933 (Reissue 2016).\\nNeb. Rev. Stat. \\u00a7 24-1106(3) (Supp. 2017).\\nVlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013) ; American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 492 (2011).\\nRice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).\\nBoard of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186 (2015) ; Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780 N.W.2d 416 (2010).\\nBuhrmann v. Buhrmann, 231 Neb. 831, 835, 438 N.W.2d 481, 484 (1989) (\\\"[w]here there is a genuine controversy between the parties as to the meaning of language in a decree of dissolution, and the appeal period has passed, a proper method to resolve the controversy is by a separate action for declaratory relief\\\"). See, Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008) ; Hohertz v. Estate of Hohertz, 19 Neb. App. 110, 802 N.W.2d 141 (2011).\\nBoyle v. Boyle, 12 Neb. App. 681, 684 N.W.2d 49 (2004).\\nBlaine v. Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008).\\nRice v. Webb , supra note 4.\\nStrunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).\\nMansuetta v. Mansuetta, 295 Neb. 667, 890 N.W.2d 485 (2017) ; Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).\\nDavid Fiala, Ltd. v. Harrison, 290 Neb. 418, 860 N.W.2d 391 (2015).\\nSee, Ryder v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015) ; Rice v. Webb , supra note 4.\\nSee Neujahr v. Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986) (once decree becomes final, what parties thought it meant is irrelevant; meaning of decree is question of law determined from four corners of decree).\\nRyder v. Ryder , supra note 13.\\nRice v. Webb , supra note 4.\\nRyder v. Ryder , supra note 13, 290 Neb. at 656-57, 861 N.W.2d at 456.\\nSee Rice v. Webb , supra note 4.\\nId.\\nBrief for appellant at 17.\\nId. at 16.\\nFriedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).\\nSee Rice v. Webb , supra note 4.\\nSee Strunk v. Chromy-Strunk , supra note 10.\\nSee Rice v. Webb , supra note 4.\\nSee Strunk v. Chromy-Strunk , supra note 10.\\nRyder v. Ryder , supra note 13.\\nSee id.\\nSee Strunk v. Chromy-Strunk , supra note 10.\\nSee Ryder v. Ryder , supra note 13.\\nSee Neb. Rev. Stat. \\u00a7 42-364 (Reissue 2016).\\nSee, State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014) ; Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).\\nSee Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 (2003).\\nZetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).\\nId. at 261, 512 N.W.2d at 625.\\nSee, Van Camp v. Van Camp, 333 Ark. 320, 969 S.W.2d 184 (1998) ; Miner v. Miner, 48 Conn. App. 409, 709 A.2d 605 (1998) ; Katz v. Katz, 258 Ga. 184, 366 S.E.2d 766 (1988) ; Helms v. Schultze, 161 N.C. App. 404, 588 S.E.2d 524 (2003).\\nId.\\nZetterman v. Zetterman , supra note 34.\\nSee, also, Neb. Rev. Stat. \\u00a7 42-366(7) (\\\"[e]xcept for terms concerning the custody or support of minor children, the decree may expressly preclude or limit modification of terms set forth in the decree\\\").\\nRyder v. Ryder , supra note 13; Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).\\nVlach v. Vlach , supra note 3.\"}"
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+"{\"id\": \"12562497\", \"name\": \"STATE of Nebraska, appellee, v. Michael E. GOYNES, Jr., appellant.\", \"name_abbreviation\": \"State v. Goynes\", \"decision_date\": \"2019-05-17\", \"docket_number\": \"No. S-18-135.\", \"first_page\": \"346\", \"last_page\": 357, \"citations\": \"927 N.W.2d 346\", \"volume\": \"927\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-27T21:03:36.873018+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Nebraska, appellee,\\nv.\\nMichael E. GOYNES, Jr., appellant.\", \"head_matter\": \"STATE of Nebraska, appellee,\\nv.\\nMichael E. GOYNES, Jr., appellant.\\nNo. S-18-135.\\nSupreme Court of Nebraska.\\nFiled May 17, 2019.\\nThomas C. Riley, Douglas County Public Defender, Omaha, and Matthew J. Miller for appellant.\\nDouglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.\\nHeavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.\", \"word_count\": \"4589\", \"char_count\": \"28491\", \"text\": \"Funke, J.\\nMichael E. Goynes, Jr., appeals his convictions of murder in the first degree, use of a deadly weapon (firearm) to commit a felony, and possession of a deadly weapon by a prohibited person. On appeal, Goynes challenges the district court's failure to suppress cell phone data content acquired through the execution of a search warrant. Goynes claims the warrant was unsupported by probable cause and insufficiently particular. The State, in turn, argues that the warrant was supported by probable cause and sufficiently particular and that the officers who executed the warrant acted in good faith. For the reasons set forth herein, we affirm.\\nI. BACKGROUND\\nAt 4:25 p.m. on April 25, 2016, Omaha Police Department officers responded to a report of shots fired at an apartment complex in Omaha, Nebraska. In front of the complex, the officers found Barbara Williams on the ground in a pool of blood. Williams had been shot in the chest, and paramedics pronounced her dead at the scene.\\nAs a result of a subsequent investigation, officers identified Goynes as a suspect and took him into custody on April 30, 2016. Goynes had an \\\"LG Tribute 5\\\" cell phone in his possession when he was arrested. Det. Larry Cahill submitted an application for a search warrant authorizing examination of the cell phone and the extraction of electronically stored information. In the supporting affidavit, Cahill stated his belief that data from the cell phone would assist him in determining the course of events regarding the homicide investigation of Williams.\\nThe factual basis Cahill provided in his affidavit explained that on Monday, April 25, 2016, officers responded to the shooting at the apartment complex. Upon their arrival, the officers observed Williams deceased in front of the complex with an apparent gunshot wound to her torso. The officers then undertook an investigation wherein several potential witnesses to the shooting were interviewed.\\nThe affidavit stated that around 4:20 p.m. on April 25, 2016, a witness heard approximately four or five gunshots and observed a white, four-door sedan parked just east of the north entrance facing the apartments. The witness then observed a black male wearing a white T-shirt, gray pants, and a dark-colored hat holding a handgun in his right hand and walking toward the sedan. The black male got into the driver's side of the sedan, which left the area quickly, traveling east on Boyd Street toward North 48th Street.\\nThis account was supported by video described in the affidavit. In the video, which showed various views of the front of the apartment complex, investigators observed a white, four-door sedan drive past the front of the complex's entrance, where officers later located Williams, and park in a spot east of that entrance. The officers observed an unidentified party travel from where the sedan was parked, approach the elevated stoop of the entrance, and return back to the sedan's location. The video then showed the sedan leaving, traveling east on Boyd Street.\\nCahill's affidavit described interviews occurring on April 29, 2016, with two other potential witnesses, George Taylor and Saville Hawthorne, who claimed to know the identity of the suspect.\\nTaylor's interview provided that Taylor and Hawthorne drove to a parking space across the street from the apartment complex at 4 p.m. on April 25, 2016. Taylor described that Hawthorne and Williams were friends and that after Taylor parked his vehicle facing the entrance of the complex, Hawthorne briefly went to talk to Williams before returning to the vehicle. Once Hawthorne returned to the vehicle, Taylor observed a white, four-door sedan pull into a parking spot just east of the apartment entrance where Williams was located. Taylor stated he observed a black male wearing a white T-shirt, dark pants, and a black hat exit the sedan, possibly from the back seat. Taylor indicated that he saw additional parties inside the white sedan, but that those individuals did not exit the sedan. Upon exiting the sedan, the black male began walking toward the elevated stoop where Williams was sitting. Taylor identified the man as Goynes, also known as \\\" 'Gang Bang,' \\\" explaining that Goynes is Hawthorne's cousin and a known gang member. Taylor described that Goynes then began firing a black handgun toward the stoop in front of the entrance. Taylor stated that two men, whom he knew as \\\" 'Action' \\\" and \\\" 'Stay Ready,' \\\" were sitting on the elevated stoop near Williams and that he believed Goynes was shooting at these men. Taylor stated he watched Goynes fire approximately 10 times, firing all the way up to the entryway stairs and toward where he saw \\\" 'Action' \\\" and \\\" 'Stay Ready' \\\" running. Taylor then sought cover and did not see Goynes or the sedan leave.\\nIn Hawthorne's interview, she stated that she rode to the apartment complex with Taylor and that they parked facing the entrance of the complex. After noticing several friends, including Williams, sitting on the stoop in front of the entrance, she went over and \\\"sat with them for a couple minutes.\\\" Hawthorne was then called away and left the stoop to return to the vehicle, where she sat in the front passenger seat. While in the vehicle, Hawthorne observed a white, four-door sedan approach and park on the east side of the entrance and saw a black male exit the sedan from the rear driver's side seat. The man that exited the sedan, whom Hawthorne identified as her cousin Goynes, walked toward the stoop and pulled out a black handgun from his waist which he used to shoot toward the stoop at least 10 times. Hawthorne believed Goynes was shooting at two men on the stoop she identified as \\\" 'Action' \\\" and \\\" 'Stay Ready,' \\\" whom she observed fled into the courtyard of the apartment complex. Hawthorne explained that Goynes ran up the stairs of the stoop and continued to shoot toward the courtyard before heading back and getting into the sedan. Hawthorne described that the sedan left the scene east-bound toward 48th Street. Hawthorne clarified she was \\\"100% sure\\\" Goynes was the shooter and was able to positively identify him from a photographic lineup, as well as \\\" 'Action' \\\" and \\\" 'Stay Ready.' \\\"\\nCahill asserted in his affidavit that there was data on the cell phone related to the offense and listed the areas in which that data could be found. Cahill supported his assertion by explaining:\\nFrom training, experience and research Affiant Officer is aware that the data on cell phones can provide invaluable insight for criminal investigations. Cell phones are used for communication, access to information, socialization, research, entertainment, shopping and other functionality. In addition to personal use, cell phones are often used as tools in criminal activity. Affiant Officer is aware of numerous instances where cell phones were used by participants in crimes to communicate via voice and text messaging, occasions when they took photographs of themselves with weapons and/or illegal narcotics, times when they created videos of their criminal activity and instances when the Internet was used to research crimes they participated in, just to name a few. As such a cell phone can serve both as an instrument for committing a crime, as well as a storage medium for evidence of the crime.\\nCell phone data can assist investigators in determining the culpability of participants in criminal investigations. This is because the data can potentially provide a wealth of information that can assist in determining the motivation, method and participants involved in an incident. Information on the devices can provide invaluable insight to the who, what, when, where and why an incident occurred.\\nCahill continued by explaining the kind of information the listed types of cell phone data could provide to investigators.\\nThe county court found probable cause to support the warrant and granted Cahill's application. In the warrant, the court identified the warrant was in relation to the Williams'\\nhomicide and authorized the search of the cell phone data described in the affidavit, including: cell phone information and configurations; user account information; call logs; contact lists; short and multimedia messaging service messages; chat and instant messages; email messages; installed applications and their corresponding data; media files such as images, videos, audio, and document files; internet browsing history; cell tower connections; global positioning system fixes, waypoints, routes, and tracks; Wi-Fi, Bluetooth, and synchronization connection history; memorandums and notes; user dictionary; and calendar information.\\nA subsequent application seeking the cell phone records from Goynes' cell phone provider was also granted but is not at issue in the instant appeal.\\nGoynes was charged with murder in the first degree, use of a deadly weapon (firearm) to commit a felony, and possession of a deadly weapon by a prohibited person.\\nPrior to trial, Goynes filed a motion to suppress all evidence obtained from the search of his cell phone records for the reason that such search was conducted in violation of the 4th, 5th, and 14th Amendments to the U.S. Constitution and article I, \\u00a7 3, 7, 11, and 12 of the Nebraska Constitution. A hearing was held on the motion, and the district court clarified with Goynes that his motion was for both the cell phone records and the contents of his cell phone. The search warrant applications, affidavits, warrants, and other evidence were received as exhibits for the motion to suppress.\\nCahill testified during the hearing and explained the process of applying for the warrants and that he relied on the warrants when he performed the search of the cell phone, its data, and its records. On cross-examination, he agreed that the witnesses described in the affidavits did not provide any information or evidence that the shooter was using a cell phone in the minutes immediately preceding or after the shooting, that the shooter communicated about the shooting over his cell phone, that the shooter took photographs or video of the shooting, or that the shooter communicated about the shooting on social media.\\nThe court overruled Goynes' motion and found the warrant for the content of Goynes' cell phone was supported by probable cause provided in the affidavit. The court also found the warrant was sufficiently particular concerning the data to be searched, the warrant was not overly broad, and the officers exercised good faith in performing the search.\\nThe case continued to a jury trial. Cahill testified for the State, and during that testimony, the State offered Goynes' cell phone and a compact disc containing data extracted from the cell phone. Goynes renewed his objection to these exhibits based upon his motion to suppress, and the court overruled it.\\nThe State also called an investigator with the Omaha Police Department's digital forensics squad as a witness. During his testimony, the State offered printed copies of the cell phone data detailing activity and internet searches that Goynes performed on his cell phone between April 25 and 30, 2016. The data contained in these printouts were select datasets of the information contained on the compact disc and Goynes' cell phone which were previously offered into evidence during Cahill's testimony. Goynes did not specifically object when these exhibits were presented.\\nAccording to the data contained in these exhibits, Goynes used the internet throughout the morning and early afternoon on April 25, 2016. Notably, Goynes repeatedly accessed Facebook between 3:38 and 4:19 p.m. and then stopped. There were no cell phone calls, text messages, or internet browsing history between 4:19 and 5:08 p.m. that day. At 5:08 p.m., Goynes again began accessing Facebook and, at 5:10 p.m., visited the website of a local television news station and viewed an article about the shooting before returning to Facebook. Later that day, Goynes again accessed Facebook and, at 9:15 p.m., visited the website of another local television news station and viewed another article about the shooting before returning to Facebook. On April 30, the date Goynes turned himself in to police, the cell phone was again used to access an article related to the shooting. On that same day between the hours of 12:42 and 7:40 a.m., the cell phone was used to search various websites using the name \\\"Michael Goynes,\\\" or variations of that name, as the search term.\\nAt the conclusion of the trial, the jury returned a verdict finding Goynes guilty of all counts. Goynes was sentenced to life imprisonment for murder in the first degree, 45 to 50 years' imprisonment for use of a deadly weapon (firearm) to commit a felony, and 20 to 25 years' imprisonment for possession of a deadly weapon by a prohibited person.\\nII. ASSIGNMENT OF ERROR\\nGoynes assigns, restated, that the district court erred in failing to suppress cell phone data content acquired through the execution of a warrant that was unsupported by probable cause and insufficiently particular.\\nIII. STANDARD OF REVIEW\\nIn reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.\\nIV. ANALYSIS\\nWe initially note Goynes failed to object to the printouts of the cell phone data offered during the digital forensics investigator's trial testimony. Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is offered at trial in order to preserve any error for appellate review. The failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. Therefore, Goynes' assignments as they relate to the printouts were waived and not adequately preserved for appellate review.\\nHowever, Goynes did object to the introduction of the cell phone and the compact disc containing the cell phone data. As such, and because we find the warrant met the probable cause and particularity requirements of the Fourth Amendment and article I, \\u00a7 7, we address the substance of Goynes' claims on the validity of the warrant, even though he failed to object to the exhibits containing the printed data from the cell phone and failed to preserve a challenge to those exhibits for review.\\n1. VALIDITY OF SEARCH WARRANT\\nThe Fourth Amendment provides that warrants may not be granted \\\"but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\\\" The Nebraska Constitution, under article I, \\u00a7 7, similarly provides that \\\"no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.\\\"\\n(a) Probable Cause\\nIn reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. In evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued.\\nIn the affidavit executed in support of the search warrant application, Cahill provided observations from officers investigating the scene of the shooting, summaries of interviews conducted of witnesses to the shooting, and a description of video showing events surrounding the shooting. Specifically, Taylor and Hawthorne gave eyewitness accounts of the shooting and identified Goynes as the shooter. Both Taylor and Hawthorne were acquainted with Goynes prior to the act, as Hawthorne and Goynes were cousins. Hawthorne picked Goynes out of a photographic lineup as well as the two men Taylor and Hawthorne believed were the targets of the shooting. Additionally, their accounts were supported by an eyewitness account, the video of the white sedan arriving and leaving the scene, and the observations of the officers upon arriving at the scene.\\nGoynes had the cell phone in his possession when he was arrested, and Cahill, through his training and experience, described why the cell phone likely had information relevant to the shooting investigation. Cahill explained that cell phone data provides insight for criminal investigations in that cell phones are used for communication, access to information, socialization, research, entertainment, shopping, and other functionality and that these uses are often found to be tools in criminal activity. Cahill further explained that the data from cell phones can provide information on the motivation, method, and participants involved in a crime. Cahill stated that he was aware of numerous instances where cell phones were used by participants in crimes to communicate through voice and text messaging, take photographs of themselves with weapons or illegal narcotics, create videos of their criminal activity, and research crimes in which they participated. Cahill opined that these uses demonstrate a cell phone can serve as both an instrument for committing a crime and as a storage medium for evidence of the crime.\\nThe factual basis provided in Cahill's affidavit is similar to the one described in State v. Henderson . In that case, two men were shot and two men were seen running from the scene. The affidavits provided to the county court established that there was a fair probability that the defendant, Tillman Henderson, was involved in the shootings and that he had a cell phone in his possession when he was taken into custody shortly after the shootings. The officer seeking the warrant also provided language that, in his experience as a detective, he knew suspects used cell phones to communicate about shootings they have been involved in before, during, and after the shootings and that such communications could be through, inter alia, voice or text messages or social media. In determining that the affidavits provided the county court a substantial basis to find probable cause existed to search the cell phone, we found that it is reasonable to infer that Henderson's cell phone was used to communicate with others regarding the shootings before, during, or after they occurred, because Henderson was working with at least one other person to commit the shootings.\\nIn the instant case, Goynes had the cell phone in his possession at the time he was taken into custody and the affidavit established it was a fair probability that Goynes had committed the shooting. There were additionally witness accounts summarized in the affidavit that described Goynes' committing the shooting with the aid of one or more other people, and Cahill described how, in his experience as an investigator, individuals who committed similar crimes commonly communicate, research, record, and perform other operations on their cell phones that would amount to evidence of the crime. Although the content of the affidavit pertaining to how suspects use cell phones standing alone may not always be sufficient probable cause, when considered with all of the facts recited above, as we determined in Henderson , the affidavit provided a substantial basis to find probable cause existed to search the cell phone data.\\n(b) Particularity\\nIn addition to the requirement of probable cause, the Fourth Amendment and article I, \\u00a7 7, contain a particularity requirement describing the place to be searched and the persons or things to be seized. The particularity requirement for search warrants is distinct from, but closely related to, the requirement that a warrant be supported by probable cause. A purpose of the particularity requirement for a search warrant is to prevent the issuance of warrants on loose, vague, or doubtful bases of fact.\\nTo satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized. The degree of specificity required depends on the circumstances of the case and on the type of items involved.\\nA search warrant may be sufficiently particular even though it describes the items to be seized in broad or generic terms if the description is as particular as the supporting evidence will allow, but the broader the scope of a warrant, the stronger the evidentiary showing must be to establish probable cause. As relevant to the instant case, a warrant for the search of the contents of a cell phone must be sufficiently limited in scope to allow a search of only that content that is related to the probable cause that justifies the search.\\nHere, as detailed in the previous section, Cahill's affidavit provided probable cause that Goynes committed the shooting and that he was aided by others. When Goynes was taken into custody, he had the cell phone in his possession. Cahill explained cell phone data provides insight for criminal investigations on the motivation, method, and participants in that cell phones are used for communication, access to information, socialization, research, entertainment, shopping, and other functionality. Accordingly, Cahill listed several types of data he was seeking to search through the warrant and how the data was relevant to the investigation. These types of data included the following: cell phone information, configurations, calendar events, notes, and user account information which could identify who owns or was using a cell phone; call logs which could establish familiarity between people involved and timelines of an incident; short and multimedia messaging service messages, chat and instant messages, and emails which could provide insight to establish an individual's level of culpability and knowledge of the incident; installed application data which could aid in determining a user's historical geographic location and demonstrate the user's association with investigated people, location, and events; media files such as images, videos, audio, and documents which could provide times and locations, as well as firsthand documentation of the incident; internet browsing history which could demonstrate the planning, desire, and participation in a crime; cell tower connections, global positioning system data, Wi-Fi, Bluetooth, and synchronization logs which could provide information on location in relation to the incident; and user dictionary information which could demonstrate familiarity with the crime being investigated.\\nThe county court used the list sought by Cahill and restated these types of data in the warrant as the areas permitted to be searched. From the facts surrounding the shooting and Cahill's explanation of the areas in the cell phone he was seeking to search, the court had a substantial basis to find probable cause that evidence relevant to the shooting was accessible data in the areas listed.\\nGoynes argues the scope of the search authorized in the warrant was too broad and was similar to warrants we determined did not meet the particularity requirement in Henderson . Goynes contends that the areas which the warrant permitted to be searched encompassed the entirety of the data contained within the cell phone and that Henderson condemns the allowance of such a search of \\\" 'any and all' \\\" information stored on a cell phone.\\nHowever, Henderson does not stand for the rule that a search of a cell phone cannot be expansive; instead, we held that the unlimited search of the cell phone in that case did not align with the justifying probable cause. The Henderson warrants failed to refer to a specific crime being investigated. In addition, while the warrants in Henderson listed types of cell phone data to search, such as calls and text messages, they also authorized a search of \\\" 'any other information that can be gained from the internal components and/or memory Cards.' \\\" In finding the warrants were insufficiently particular, we noted the privacy interests arising from a cell phone's immense storage capacity, ability to store many different types of information, functionality as a digital record of nearly every aspect of the owner's life, and ability to access data located elsewhere. We concluded that a warrant for the search of the contents of a cell phone must be sufficiently limited in scope to allow a search of only that content that is related to the probable cause that justifies the search. We further held that by including such a catchall phrase as \\\" 'any other information,' \\\" a warrant fails to set parameters for the search of this substantial device and limit the search to only that content that is related to the probable cause justifying the search.\\nUnlike Henderson , the warrant in the instant case did identify it was for the investigation for the homicide of Williams. The warrant also did not contain such unqualified language that would permit the search of the cell phone for \\\" 'any other information.' \\\" Instead, the warrant listed specific areas to be searched within the cell phone. These areas were described in the affidavit, along with a description of the information they held which would be relevant to the investigation.\\nThe affidavit authored by Cahill set forth sufficient probable cause to justify the search of the cell phone and sufficient particularity to identify the locations on the cell phone to be searched and the content to be seized. As a result, the court had a substantial basis for finding that probable cause existed to issue a warrant for these areas, and the warrant limited the scope in listing specific areas to be searched for evidence relevant to the homicide of Williams.\\n2. GOOD FAITH EXCEPTION\\nBecause we conclude the affidavit contained sufficient facts to establish probable cause for the issuance of a search warrant, we need not address whether the good faith exception to the exclusionary rule applies. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.\\nV. CONCLUSION\\nFor the reasons stated above, we conclude the search warrant at issue was supported by probable cause and met the particularity requirement of the Fourth Amendment and article I, \\u00a7 7. Accordingly, the district court did not err in declining to suppress evidence obtained through the execution of the warrant.\\nAFFIRMED .\\nState v. Tyler , 291 Neb. 920, 870 N.W.2d 119 (2015).\\nId.\\nState v. Oldson , 293 Neb. 718, 884 N.W.2d 10 (2016).\\nId.\\nState v. Wiedeman , 286 Neb. 193, 835 N.W.2d 698 (2013).\\nId.\\nState v. Sprunger , 283 Neb. 531, 811 N.W.2d 235 (2012).\\nState v. Hidalgo , 296 Neb. 912, 896 N.W.2d 148 (2017).\\nState v. Henderson , 289 Neb. 271, 854 N.W.2d 616 (2014).\\nId.\\nState v. Baker , 298 Neb. 216, 903 N.W.2d 469 (2017).\\nSprunger , supra note 7.\\nBaker , supra note 11. See, also, U.S. v. Sigillito , 759 F.3d 913 (8th Cir. 2014).\\nSee, Sigillito , supra note 13; Baker , supra note 11.\\nBaker , supra note 11.\\nSee Henderson , supra note 9.\\nBrief for appellant at 25.\\nHenderson , supra note 9.\\nId . at 277, 854 N.W.2d at 625.\\nHenderson , supra note 9.\\nId.\\nId . at 290, 854 N.W.2d at 633.\\nSee id .\\nState v. Jedlicka , 297 Neb. 276, 900 N.W.2d 454 (2017).\"}"
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+"{\"id\": \"1594628\", \"name\": \"Resolution Trust Corporation, receiver for City Savings, F.S.B., appellee, v. Dial Companies, Inc., a Nebraska corporation, appellant\", \"name_abbreviation\": \"Resolution Trust Corp. v. Dial Companies, Inc.\", \"decision_date\": \"1997-05-13\", \"docket_number\": \"No. A-96-002\", \"first_page\": \"695\", \"last_page\": 704, \"citations\": \"5 Neb. App. 695\", \"volume\": \"5\", \"reporter\": \"Nebraska Court of Appeals Reports\", \"court\": \"Nebraska Court of Appeals\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:19:57.659760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Miller-Lerman, Chief Judge, and Hannon and Inbody, Judges.\", \"parties\": \"Resolution Trust Corporation, receiver for City Savings, F.S.B., appellee, v. Dial Companies, Inc., a Nebraska corporation, appellant.\", \"head_matter\": \"Resolution Trust Corporation, receiver for City Savings, F.S.B., appellee, v. Dial Companies, Inc., a Nebraska corporation, appellant.\\n564 N.W.2d 260\\nFiled May 13, 1997.\\nNo. A-96-002.\\nCharles O. Forrest and Tami R. Weissert, of Schmid, Mooney & Frederick, P.C., for appellant.\\nLawrence K. Sheehan, of Ellick. Jones, Buelt, Blazek & Longo, for appellee.\\nMiller-Lerman, Chief Judge, and Hannon and Inbody, Judges.\", \"word_count\": \"3047\", \"char_count\": \"18057\", \"text\": \"Hannon, Judge.\\nThe Resolution Trust Corporation (RTC), receiver for City Savings, F.S.B., sued Dial Companies, Inc. (Dial), to recover an $87,890 credit that Dial received against the purchase price of a large promissory note Dial purchased from RTC. RTC alleges that Dial was given too large a credit by mistake and was unjustly enriched, and seeks this recovery on a theory of reformation of the agreement by which the promissory note was sold. The trial court found in favor of RTC on the basis of unilateral mistake and entered judgment against Dial in the amount of $87,890, plus costs. We conclude that RTC was entitled to reformation and restitution under either the unilateral or mutual mistaken analysis, and, therefore, we affirm the order of the trial court.\\nRTC is an institution founded by the federal government to act as a receiver for the assets of failed financial institutions. It takes possession of the assets, oversees them, and attempts to liquidate them in an orderly fashion and thereby realize the greatest sum possible. RTC was appointed the receiver of City Savings, F.S.B., and as such became the owner of a certain promissory note and the related rights securing that note by a trust deed in the Applewood Pointe Apartments located in Omaha, Nebraska (the apartment). The promissory note was in the face amount of $8 million, and when RTC sold it to Dial, its unpaid balance was in excess of that amount. The apartment was worth considerably less than the lien against it.\\nThe trust deed used to secure the loan document contains a provision that if the beneficiary (owner of promissory note) so requests, the trustor (borrower) agrees to add to each periodic payment required by the note an amount estimated by the beneficiary to be sufficient to enable the beneficiary to pay all taxes, assessments, and other charges at least 30 days before they become delinquent. Before the 1991 real estate taxes were paid by RTC on March 5, 1992, the escrow account for taxes and insurance had a balance of $91,326.57. RTC also held a \\\"capital improvements\\\" escrow account of $97,943.67.\\nRTC conducts a great deal of its business through managers it contracts with to perform certain functions. RPC-Mitchell Title, Inc. (RPC), is a corporation with which RTC had contracted to manage and liquidate some of its assets, including the apartment loan in question. Scott Budinsky was the RPC representative who actually did the work for RPC in liquidating the apartment loan on RTC's behalf. Under the system used by RTC, RPC manages and disposes of certain assets, including the apartment loan, but the loans are serviced through a service center which is operated either by RTC or by some other independent contractor. The apartment loan was serviced out of Atlanta, Georgia. Money paid by borrowers on loans is paid to the service center. The service center keeps track of the loan balances and the escrow funds, and pays the real estate taxes from an escrow account. On a monthly basis, Budinsky would receive a servicing report from the service center, which showed such information as the balance of the escrow accounts.\\nTechnically, an asset which RPC receives from RTC to manage is available for sale immediately. However, a great deal of work is required before a given asset can be sold. Information about a given asset is made available to those interested in purchasing the loan, and interested parties make offers to RPC to purchase a given asset. RPC then negotiates with the prospective buyer on the price and terms that it is willing to recommend to RTC to sell the asset.\\nOn September 10, 1991, Philip Gibson, representing Dial, sent Budinsky a \\\"protocol\\\" by which Dial offered to purchase the apartment loan for $4,300,000. This protocol was a written document describing the property Dial was interested in purchasing and its security (the apartment), accompanied by financial and other information intended to convince RPC and RTC officials that RTC should sell the asset for the price Dial was offering. After the September 10 offer, RPC, through Budinsky, and Dial, through Gibson, negotiated by letter and telephone for the sale of the promissory note secured by the apartment, and on December 31, Budinsky wrote to Gibson that RTC had agreed to sell the note and mortgage for $5,040,000. The evidence does not show that the escrow account balances or the status of the real estate taxes were mentioned during these negotiations. A formal agreement was clearly expected.\\nThe loan sale agreement dated March 27, 1992, was ultimately executed by the appropriate representatives of RTC and Dial. That agreement provides for the sale of the promissory note, all documents and liens covering that note, and all amounts contained in the escrow account for capital improvements and for real estate taxes and insurance for $5,040,000. The document states that Dial was to receive the balances of the escrow accounts, and it shows the balance of the taxes and insurance account to be $91,326.57. Immediately following this statement, the document states, \\\"Funding Date. April 2. 1992.\\\" It contains numerous provisions by which RTC disclaimed every imaginable guarantee of the property it was selling. The agreement provides the seller sells \\\"all payments of principal and interest on, and all proceeds with respect to, such Loan after the Funding Date . all amounts contained in the Escrow Accounts.\\\"\\nBudinsky testified that it was his responsibility to find out the balances of the escrow accounts. He testified that he was receiving monthly printouts from the service center. He believed that he called the service center on the date of the closing, March 27, 1992, or earlier, and that he probably confirmed it again on April 2, \\\"the funding date.\\\"\\nGibson also testified about his handling of the closing for Dial. He testified that prior to closing, he was told the escrow balances for the taxes and insurance. He had gone to Pennsylvania to review the loan files in the fall of 1992, and there was nothing in the loan file with regard to escrow account balances. At the time of the closing, Gibson knew that the first half of the taxes on the apartment was paid through a title insurance commitment update he had received in connection with the purchase. Gibson testified that he believed that sometime in February or early March he was aware that the escrow balance for taxes was in the neighborhood of $90,000. He testified he had no way of knowing what the correct balance was on the date the contract for sale was signed by the buyer. He testified he relied upon the representations made by RTC officials as to the balance of the escrow account.\\nWhen the sale was closed, Dial paid $5,040,000, less the escrow account balances shown in the contract and less the $50,000 that Dial had paid during negotiations to show good faith. Insofar as the taxes and insurance escrow account is concerned, the credit allowed to Dial was $91,326.57.\\nFrom a computer printout introduced into evidence, Budinsky testified that real estate taxes of $87,890 were paid to Douglas County on February 28. A check dated February 28, 1992, payable to Douglas County in that amount is in evidence. After deducting that check, the escrow account for taxes and insurance had a balance of $3,436.57. Other documents in evidence show that these taxes were paid on the records of Douglas County on March 5. Budinsky testified that prior to the execution of the loan sale agreement, he did not have any knowledge that the taxes were paid prior to the execution of the loan sale agreement. Budinsky testified that he discovered the error when he received the monthly service report a few days after April 2.\\nASSIGNMENTS OF ERROR\\nDial alleges the trial court erred (1) in finding a voluntary payment and unjust enrichment and (2) in refusing to grant Dial's motion for a new trial.\\nSTANDARD OF REVIEW\\nIn an appeal from an equitable action, an appellate court reviews the action de novo on the record and reaches a conclusion independent of the factual findings of the lower court, but if credible evidence is in conflict on a material issue of fact, then the appellate court considers and may give weight to the circumstances that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996).\\nDISCUSSION\\nAt the time the contract was drawn, there was $3,436.57 in the escrow account. Due to an error, the escrow account mistakenly showed a balance of $91,326.57. Therefore, Dial was given credit for the taxes and insurance escrow account that was $87,890 more than was actually in that account.\\nThe parties' arguments are based upon the premise that the mistake upon which RTC seeks relief is a unilateral mistake. To understand the nature of the mistake in this case, it would be well to analyze the parties' transaction in light of the situation they were in when the sale was closed and Dial was given a credit for the taxes and insurance escrow account that was $87,890 more than was actually in that account. The contract specifically provided that Dial was to receive an escrow account with a balance that was $87,890 more than was in that account at the time the contract was drawn, apparently notwithstanding the date the contract was signed at the time of closing, that is, April 2, 1992.\\nIn their briefs, the parties cite and argue the cases and principles which are listed below. The rules expressed in those cases are mainly concerning payment, and they tend to fit this case only if one treats the credit Dial was given as a payment to RTC and overlooks the fact that the parties entered into a contract containing the same mistake. The following authorities, if slightly modified to fit the situation of this case, do contain helpful principles.\\n\\\"When a unilateral mistake is made and a party receives the benefit of that mistake, before the mistaken payor can recover the mistaken payment, it must also show that the person receiving the payment has been unjustly enriched.\\\" Wendell's, Inc. v. Malmkar, 225 Neb. 341, 350-51, 405 N.W.2d 562, 569 (1987).\\nIn accordance with the rules relating to the burden of proof in civil actions generally, the burden is on one seeking to recover payments made to prove the facts entitling him to recovery. [Citation omitted.] Ordinarily a party suing to recover an alleged overpayment on a contract has not only the burden of proving the overpayment but also the burden of proving that the overpayment was involuntary.\\nHersch Buildings, Inc. v. Steinbrecher, 198 Neb. 486, 489-90, 253 N.W.2d 310, 312 (1977).\\n\\\" 'All payments are presumed to be voluntary until the contrary is made to appear, and the burden rests on the party seeking to recover a payment to prove that it was involuntary.' \\\" Wendell's, Inc., 225 Neb. at 349-50, 405 N.W.2d at 568. We define \\\"involuntary\\\" as \\\" '[n]ot proceeding from choice.' \\\" Globe Indemnity Co. v. Thayer County Bank, 135 Neb. 484, 488, 282 N.W. 400, 402 (1938). Webster's Third New International Dictionary, Unabridged 1191 (1993) defines it as \\\"springing from accident or impulse rather than conscious exercise of the will.\\\" The Wendell's, Inc., court stated, \\\"Plaintiff's actions were involuntary in the sense they were the result of a mistake of fact, if the jury so found.\\\" 225 Neb. at 350, 405 N.W.2d 569. The above cases establish that a payment may be involuntary if the. payor makes the payment under a legal obligation or by accident or by mistake.\\nBudinsky, or perhaps some other agent of RTC, clearly made a mistake. Under Wendell's, Inc., the credit was given involuntarily because RTC did so as a result of a mistake. Furthermore, when it paid the 1991 real estate taxes less than a month before they were delinquent, it was fulfilling a legal duty. - The trust deed provides that the borrower is to pay into the escrow account an amount sufficient to pay the real estate taxes at least 30 days before they become delinquent. Like most lender-drafted instruments, the trust deed does not specifically provide that the lender was to pay that money toward the taxes before they became delinquent, but such a duty would clearly be implied. The first half of the' real estate taxes for 1991 in Omaha, where the apartment is located, would have been delinquent on April 1, 1992. See Neb. Rev. Stat. \\u00a7 77-204 (Reissue 1996). RTC therefore paid the taxes when the money was in the account and just shortly before it was clearly obligated to do so. In that sense, the payment of taxes was involuntary.\\nHowever, there were two parties to the contract of sale and to the computation of the wrong credit when the sale was closed. Both parties were wrong in their belief of the balance of the escrow account. The case is more correctly analyzed under mutual mistake. Apparently, this approach was overlooked, because the mistake clearly originated with RTC.\\nThe mistake in this case is analytically close to the mistake made by the seller in York Equip., Inc. v. Ashwill, 2 Neb. App. 374, 510 N.W.2d 79 (1993). In that case, York Equipment sold Ashwill $1,138,377 of new farm equipment and took used equipment valued by the parties for $570,141 as a downpayment. The used equipment was subject to a lien which was subtracted from the value of the used equipment to determine the net downpayment Ashwill was making on the new equipment. The balance of the cost of the new equipment was carried by York Equipment on an installment contract. The parties made an initial contract on December 15 but changed it because Ashwill decided to purchase more equipment. York Equipment contacted the party holding the liens on the equipment both in December and in April. York Equipment paid some liens shortly after the December contract but overlooked that fact when the final contract was drawn in April. Just before the second contract was drawn, York Equipment contacted the lienholder again and found that some liens had been paid but overlooked the fact that York Equipment was the party that paid them. As a result, the final contract showed a balance due after the downpayment that was too low by the amount of the liens that York Equipment had paid. York Equipment sued to reform the contract, and we granted reformation on the basis of mutual mistake.\\nIn York Equip., Inc., we concluded that York Equipment had made a unilateral mistake, but that mistake was not the mistake upon which York Equipment relied as grounds for reformation. We concluded that the mistake that justified rescission was a mutual mistake, that is, when the final contract was signed, neither party realized that York Equipment had paid the liens down. The applicable principles are as follows:\\nA mutual mistake is a belief shared by the parties which is not in accord with the facts. A mutual mistake is one common to both parties in reference to the instrument to be reformed, each party laboring under the same misconception about their instrument. Newton v. Brown, 222 Neb. 605, 386 N.W.2d 424 (1986). As stated by this court in Newton, \\\" 'A mutual mistake exists where there has been a meeting of the minds of the parties and an agreement actually entered into, but the agreement in its written form does not express what was really intended by the parties.' \\\" [Citation omitted.]\\n\\\"If incorrect language or wording is inserted by mistake, including a scrivener's mistake, into an instrument intended to .reflect the agreement of the parties, such mistake is mutual and contrary to the real intention and agreement of the parties.\\\"\\nOmaha Door Co. v. Mexican Food Manuf. of Omaha, 232 Neb. 153, 157, 439 N.W.2d 776, 780 (1989). See, also, Restatement (Second) of Contracts \\u00a7 151 (1981).\\nIn the introductory note to the Restatement, supra, ch. 6 at 379, that authority states: \\\"The type of mistake dealt with in this Chapter [on mistake] is one that relates to existing facts that the parties regard as a basis for making an agreement. An important sub-category of such mistake is mistake as to expression, in which the mistake relates to the contents or effect of a writing that expresses an agreement.\\\"\\n\\\"A mistake is a belief that is not in accord with the facts.\\\" Id., \\u00a7 151 at 383. \\\"In this Restatement, the word 'mistake' is used to refer to an erroneous belief. A party's erroneous belief is therefore said to be a 'mistake' of that party.\\\" Id., comment a. at 383.\\nYork Equip., Inc., 2 Neb. App. at 386-87, 510 N.W.2d at 86.\\nIn the case at hand, before March 27, 1992, there was a nonbinding agreement for the sale of the loan for $5,040,000. The evidence does not disclose any agreement with regard to RTC's obligation to pay the real estate taxes on the apartment to a certain date, and the evidence clearly shows both parties thought the escrow account was larger than it was. Budinsky testified that he learned what the balance was, and Gibson testified that before the contract, he knew, undoubtedly from Budinsky or some other representative of RTC, that the account balance was in the neighborhood of $90,000. It is clear from the evidence that before and when the contract was drawn and when the wrong credit was given, both parties believed that the escrow account balance was $87,890 higher than it was. Because of that erroneous mutual belief, the wrong figure was placed in the contract, and Dial was given credit against the purchase price of $87,890 too much and was unjustly enriched by that amount. RTC was entitled to have the contract reformed and to recover $87,890. The trial court was correct, and its order is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"1594663\", \"name\": \"Michael J. McKibbin, appellant, v. State of Nebraska, Department of Social Services, appellee\", \"name_abbreviation\": \"McKibbin v. State\", \"decision_date\": \"1997-03-18\", \"docket_number\": \"No. A-96-075\", \"first_page\": \"570\", \"last_page\": 577, \"citations\": \"5 Neb. App. 570\", \"volume\": \"5\", \"reporter\": \"Nebraska Court of Appeals Reports\", \"court\": \"Nebraska Court of Appeals\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:19:57.659760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hannon, Mu\\u00e9s, and Inbody, Judges.\", \"parties\": \"Michael J. McKibbin, appellant, v. State of Nebraska, Department of Social Services, appellee.\", \"head_matter\": \"Michael J. McKibbin, appellant, v. State of Nebraska, Department of Social Services, appellee.\\n560 N.W.2d 507\\nFiled March 18, 1997.\\nNo. A-96-075.\\nGregory N. Lohr for appellant.\\nDon Stenberg, Attorney General, and Royce N. Harper for appellee.\\nHannon, Mu\\u00e9s, and Inbody, Judges.\", \"word_count\": \"2403\", \"char_count\": \"14503\", \"text\": \"Mues, Judge.\\nMichael J. McKibbin appeals an order of the district court, affirming a decision of the Department of Social Services (DSS) which affirmed the initiation of an income withholding action by the authorized attorney for Dakota County, Nebraska. For the reasons set forth below, we reverse the order of the district court.\\nSTATEMENT OF FACTS\\nLinda C. and Michael J. McKibbin were divorced on January 3, 1990, in Dakota County, Nebraska. The decree provided that Michael pay child support for their two children as specified below:\\na. $250.00 per month beginning as of January 1, 1990 and continuing through December 1, 1991;\\nb. $325.00 per month beginning January 1, 1992 and continuing through December 1, 1993;\\nc. $375.00 per month beginning January 1, 1994 until the oldest child reaches the age of majority or becomes sooner emancipated or until further order of this court at which time said child support shall be reduced to $187.50 per month for the remaining child until that child reaches the age of majority or becomes sooner emancipated or until further order of this court.\\nOn January 19, 1995, Eugene Kelly, the authorized attorney for Dakota County, initiated an action to withhold income and sent Michael a \\\"Notice of Intent to Withhold Income\\\" pursuant to Neb. Rev. Stat. \\u00a7 43-1701 through 43-1743 (Reissue 1993 & Cum. Supp. 1994). The notice indicated that Michael owed back child support in the amount of $762.30. Michael returned the notice and indicated that he wanted to exercise his right to an administrative hearing. On March 17, a telephonic hearing was held with Robert Huston sitting as the hearing officer. Both Kelly and Michael participated by telephone. Kelly, when asked by Huston to provide background information, explained that he did not have the full file before him but advised that he would give a sketch of what was going on. He stated that he sent Michael a notice of intent to withhold income on January 19, 1995, after the clerk's office \\\"indicated\\\" that Michael was $762.30 in arrears in child support. He also testified that he telephoned the clerk's office the day before the hearing. The clerk's office told him that Michael had paid some of the back child support he owed and that as of March 15, 1995, Michael owed approximately $137.30 in back child support.\\nThe following items were received into evidence at the hearing: (1) a copy of the divorce decree entered by the Dakota County District Court; (2) an affidavit of child support arrearages by the Dakota County Clerk of the District Court, showing that Michael owed $237.30 in back child support for the period from January 3, 1990, to February 28, 1995; (3) child support payment receipts provided by Michael; (4) a copy of the notice of intent to withhold income; (5) a copy of a letter Michael wrote on March 11, 1995, which included documents to substantiate his case; (6) a copy of Michael's 1989 state and federal income tax forms; and (7) a copy of the letter scheduling the March 17, 1995, hearing.\\nOn March 30,1995, the director of DSS issued a finding and order. The director found that Michael owed $375 per month in child support under the decree and that the records of the clerk of the district court for Dakota County reflect that a child sup port arrearage equal to or greater than the amount due for a 1-month period of time had accumulated. It further specifically found that the clerk's office had certified to the authorized attorney a child support arrearage in the amount of $762.30 as of January 19, 1995, and that there was currently delinquent an amount equal to or greater than the support due for a 1-month period of time. The director affirmed the action of the authorized attorney for Dakota County.\\nOn April 20, 1995, Michael filed an appeal with the district court for Dakota County, stating that he should not be subject to income withholding, because the evidence did not show that he was delinquent in child support payments in an amount equal to or greater than the support due and payable for a 1-month period of time. Michael contended that the agency's March 30, 1995, decision was unsupported by the evidence in view of the entire record and was in excess of the statutory authority and jurisdiction of the agency.\\nOn November 17, 1995, the district court held a hearing on the amended petition, and Michael offered into evidence his amended petition and the bill of exceptions from the March 17, 1995, administrative hearing. On January 4, 1996, the district court filed a journal entry, affirming the agency's March 30, 1995, order and finding that the director of DSS properly affirmed the initiation of an income withholding action by the authorized attorney for Dakota County. Michael timely appeals to this court.\\nASSIGNMENTS OF ERROR\\nMichael contends that the district court erred in affirming DSS' March 30, 1995, order, since there was no evidence that the statutory grounds for implementing an income withholding action existed, specifically, that there was no competent evidence to support the finding that Michael was delinquent regarding his child support in an amount equal to or greater than the support due and payable for a 1-month period of time.\\nSTANDARD OF REVIEW\\nWhen a petition instituting proceedings for review under the Administrative Procedure Act is filed in a district court on or after July 1, 1989, the review shall be conducted by the district court without a jury de novo on the record of the agency. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996); Neb. Rev. Stat. \\u00a7 84-917(5)(a) (Reissue 1994). On appeal from a district court under the Administrative Procedure Act, an appellate court reviews the judgment for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Rainbolt, supra. See Neb. Rev. Stat. \\u00a7 84-918(3) (Reissue 1994). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Rainbolt, supra.\\nANALYSIS\\nSection 43-1718 applies to this case, since the parties were divorced in 1990 and there is no evidence in the record that services were provided under title IV-D of the Social Security Act or that the support order at issue was issued or modified on or after September 6, 1991. Section 43-1718 provides in pertinent part:\\nA support order shall constitute and shall operate as an assignment, to the clerk of the district court designated to receive the payment, of that portion of an obligor's income as will be sufficient to pay the amount ordered for child, spousal, or medical support and shall be binding on any existing or future employer or other payor of the obligor. The assignment shall take effect as provided in section 43-1718.01 or 43-1718.02 or on the date on which the payments are delinquent in an amount equal to the support due and payable for a one-month period of time, whichever is earlier.\\nMichael argues, inter alia, that there is no \\\"competent evidence,\\\" brief for appellant at 1, to support income withholding, because the only evidence offered at the administrative hearing that he was delinquent in child support in an amount equal to or greater than the support due and payable for a 1-month period of time is Kelly's statement that the clerk's office \\\"indicated\\\" to him that Michael owed $762.30 in back child support. We agree and find that the district court's decision is not supported by competent evidence.\\nNeb. Rev. Stat. \\u00a7 42-358.02(2) (Reissue 1993) provides in part, \\\"All child support payments shall become delinquent the day after they are due and owing.\\\" Neb. Rev. Stat. \\u00a7 42-358(3) (Cum. Supp. 1994) requires the clerk of the district court to\\nmaintain child support orders and delinquency records by the sums due to the court-ordered payee, except as provided in section 43-512.07, in each case docketed in which child support is fixed by order of the court. For support orders in all cases issued before September 6, 1991, and for support orders issued or modified on or after September 6, 1991, in cases in which no party has applied for services under Title IV-D of the Social Security Act, as amended, each month the clerk shall certify all cases in which the court-ordered child support or spousal support is delinquent in an amount equal to the support due and payable for a one-month period of time to the judge presiding over domestic relations cases and to the county attorney or authorized attorney... .\\nIn each case certified, income withholding shall be implemented pursuant to the Income Withholding for Child Support Act.\\nPursuant to \\u00a7 43-1720, unless a prior notice has been sent and except where the court has ordered income withholding (neither being present in this case), the notice of income withholding is triggered by receipt of the certification from the clerk of the district court made pursuant to \\u00a7 42-358. Thus, in an income withholding action, such as the one before us, a threshold requirement is that the clerk of the district court must certify that the court-ordered child support is delinquent in an amount equal to the support due and payable for a 1-month period of time and report this amount to the county attorney or authorized attorney. Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994), illustrates the certification process. In Zetterman, the clerk's office executed a certificate of arrears on October 9, 1991, showing that the father owed $3,150 in back child support. After receiving such certification, the county attorney initiated an income withholding action and filed a notice of intent to withhold income on October 18, 1991.\\nPursuant to \\u00a7 43-1720, Michael's request for a hearing was specifically designed to challenge a \\\"mistake of fact\\\" which is statutorily defined to encompass, inter alia, an error in the amount of current or overdue support as stated in the notice. Michael contends that Kelly's statement that the clerk had indicated Michael owed $762.30 in child support is hearsay and thus does not qualify as competent evidence of that fact. Surely, the statement is hearsay of the first order. However, the rules of evidence applicable in district court did not apply at the administrative hearing, since the record does not contain a request that the agency be bound by the rules of evidence. See Neb. Rev. Stat. \\u00a7 84-914(1) (Reissue 1994). However, that does not end our discussion. Section 84-914(1) generally provides: \\\"An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.\\\"\\nAs Michael argues, the only \\\"evidence\\\" that Michael ever owed $762.30 in back child support comes from Kelly's statement to the hearing officer that the clerk's office had so \\\"indicated\\\" that fact to Kelly. How or when this \\\"indication\\\" occurred is unclear. The record contains no documentary evidence that the clerk of the district court ever certified, in any form, Michael's required delinquency before Kelly initiated the income withholding action by sending Michael the notice of intent to withhold income. No child support records were offered to substantiate that Michael was ever $762.30 delinquent in child support or in any other amount equal to or greater than the support due and payable for a 1-month period of time, that is, $375. Indeed, the only documentation closely resembling a \\\"certificate\\\" is an affidavit of arrears from the clerk's office showing that Michael owed $237.30 in back child support from the period of January 3, 1990, through February 28, 1995, an amount clearly less than $762.30 and not equal to or greater than Michael's 1-month's child support obligation of $375. Even if documentary proof of a certification from the clerk was deemed unnecessary, certainly a mere statement of the authorized attorney of an \\\"indication\\\" from the clerk of the necessary arrearage does not rise to a level of evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. \\u00a7 84-914(1).\\nIn conclusion, we find that the record does not contain evidence possessing sufficient probative value to establish that Michael was in arrears in an amount equal to or greater than 1 month's support at any time. Proof possessing more reliability than an \\\"indication\\\" from a third person is necessary to establish these facts, even under the relaxed evidentiary rule of \\u00a7 84-914(1). We believe that when Michael challenged the withholding process by claiming a mistake in the amount shown as owing, the authorized attorney was compelled to present a prima facie showing through competent evidence of the right to income withholding. This he failed to do. This is not an onerous burden and is one necessary to assure that the basic factual predicate to initiating such a procedure exists.\\nTo clarify, our decision does not turn on when Michael may have been delinquent in an amount necessary to trigger the provisions of \\u00a7 43-1718. Rather, it turns on the lack of any competent evidence to show that his child support was ever delinquent to the extent necessary to engage that statutory procedure.\\nThe director's findings that (1) the records of the clerk of the district court reflect that a child support arrearage equal to or greater than 1 month's support had accumulated; (2) the clerk's office had certified to the authorized attorney an arrearage in the amount of $762.30 as of January 19, 1995; and (3) there was currently delinquent an amount equal to or greater than support due for 1 month are not supported by competent evidence in the record. The order of the district court affirming the director's order based on those findings therefore cannot stand. Thus, we must reverse, and remand to the district court with directions to order the director's income withholding action dismissed.\\nReversed and remanded with\\nDIRECTIONS TO DISMISS.\"}"
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+"{\"id\": \"1673488\", \"name\": \"Kristy Lee Farnsworth, appellee, v. Jeffrey D. Farnsworth, appellant\", \"name_abbreviation\": \"Farnsworth v. Farnsworth\", \"decision_date\": \"1998-03-03\", \"docket_number\": \"No. A-97-159\", \"first_page\": \"597\", \"last_page\": 608, \"citations\": \"6 Neb. App. 597\", \"volume\": \"6\", \"reporter\": \"Nebraska Court of Appeals Reports\", \"court\": \"Nebraska Court of Appeals\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:00:02.962756+00:00\", \"provenance\": \"CAP\", \"judges\": \"Miller-Lerman, Chief Judge, and Hannon and Irwin, Judges.\", \"parties\": \"Kristy Lee Farnsworth, appellee, v. Jeffrey D. Farnsworth, appellant.\", \"head_matter\": \"Kristy Lee Farnsworth, appellee, v. Jeffrey D. Farnsworth, appellant.\\n576 N.W.2d 476\\nFiled March 3, 1998.\\nNo. A-97-159.\\nMatthew Stuart Higgins, of Cohen, Vacanti & Higgins, for appellant.\\nCharles O. Forrest, of Schmid, Mooney & Frederick, P.C., for appellee.\\nMiller-Lerman, Chief Judge, and Hannon and Irwin, Judges.\", \"word_count\": \"3534\", \"char_count\": \"21346\", \"text\": \"Irwin, Judge.\\nI. INTRODUCTION\\nJeffrey D. Farnsworth (Jeff) appeals a January 13, 1997, order of the district court for Douglas County modifying a decree that dissolved his marriage to Kristy Lee Farnsworth. In the January 13 order, the district court allowed Kristy to relocate to Denver, Colorado, with the parties' only child, Casey Jay, bom August 21, 1991. The district court also increased Jeff's child support obligation to $525 per month in accordance with the current Nebraska Child Support Guidelines and ordered increased visitation rights for Jeff. Regarding travel expenses, the parties were ordered to split them for the extended summer, Christmas, and Easter break or spring vacation visits and Jeff was ordered to pay the expenses for all other visitations.\\nThe overriding issue in this appeal is whether a divorced mother who has custody of her son, now 6 years of age, has shown that she has a legitimate reason that is in the son's best interests to move him more than 500 miles from his father, who, by everyone's account, spends approximately one-half of the year exercising visitation with his son. On the record presented in this case, we conclude that the mother has not proved a legitimate reason for leaving the state and that the trial court abused its discretion in allowing her to do so.\\nII. FACTUAL BACKGROUND\\nPursuant to the original divorce decree entered May 31, 1995, Kristy was awarded custody of Casey subject to Jeff's visitation rights, which included visitation of 1 week commencing on Monday of the second full week of each month, visitation every other weekend from Friday at 6 p.m. through Sunday at 6 p.m., and 6 weeks' extended summer visitation. At the time of the decree, both Kristy and Jeff resided in Nebraska. Jeff was ordered to pay child support of $250 per month. Jeff's support was cut in half for the extended summer vacation.\\nOn July 11, 1996, Kristy filed an application to modify the decree to increase the amount of Jeff's child support in conformity with the current Nebraska Child Support Guidelines. Jeff filed an answer opposing Kristy's application. Jeff also filed a cross-application for modification, seeking an order awarding him and Kristy joint custody of Casey or, in the alternative, specific, increased, and extended visitation with Casey. He also requested that the court prohibit Kristy from leaving the local area with Casey. Thereafter, on October 16, Kristy filed a motion to remove Casey from Nebraska to Denver. Pursuant to the parties' stipulation, Jeff had \\\"extended visitation\\\" with Casey during the pendency of Kristy's removal motion, from November 1 through 25.\\nA hearing was held on the pending matters on December 13, 1996. The parties stipulated that Kristy is a fit and proper person to have custody of Casey. Jeff withdrew the portion of his cross-application requesting joint custody of Casey. Both Kristy and Jeff testified at the hearing.\\nDuring presentation of her case, Kristy testified that she made $24,500 per year at Cari Rental in Omaha. Her job dealt with corporate furniture leasing. She stated that because her career advancement possibilities with Cari Rental were limited due to the size of the company, she began to look for another job. She restricted her search to other corporate furniture- leasing jobs, refusing to consider office furniture-leasing jobs because she enjoyed corporate leasing. (The precise distinction between these two types of job is unclear from the record.) Kristy testified about her search for a job in Omaha and said, \\\"I think I looked in the want ads every Sunday; kept my ears open, kept my eyes open. Just looked. I didn't submit a resume or anything like that but I was always aware.\\\" On cross-examination, she testified that she never contacted any employment agencies and never sent out any letters of inquiry to prospective employers in Omaha.\\nKristy testified that she \\\"put some feelers out\\\" in the Denver area and obtained employment with Cort Furniture Rental, a corporate furniture-rental company. The trial testimony reveals that she accepted a position with Cort prior to the modification hearing. Her starting salary was $24,000 a year \\\"plus commission.\\\" She testified that Cort offers better career opportunities. She had also rented a two-bedroom condominium in a Denver suburb prior to the modification hearing. In a candid response during cross-examination, she responded yes to a question eliciting that she was \\\"basically banking on being allowed [by the court] to move to Denver.\\\"\\nKristy testified that she had begun looking for a job in Denver because she has both family and friends in Denver, including her best friend, her boyfriend of 9 months, and three first cousins. Kristy testified that in comparison, she has few friends in Omaha, and that her family does not live in Omaha, although her parents live approximately 2lk hours away from Omaha. Kristy acknowledged that Casey does have family in Omaha, including his grandparents, one uncle, one aunt, and two cousins. Kristy further testified that she \\\"always wanted to live [in Denver].\\\" This was contradicted by Jeff's testimony. He testified that he had job offers, prior to the parties' estrangement, from businesses in Denver and Dallas; however, Kristy desired to stay in Omaha to \\\"be close to her parents.\\\" The parties did not move.\\nKristy also testified that there are several parks in the area near the condominium as well as lots of outdoor activities, which Casey enjoys, including skiing, hiking, canoeing, and kayaking, and an amusement park.\\nJeff testified that he was opposed to Kristy's application to remove Casey to Colorado because his visitation with his son would be inhibited. He testified that he had never missed any scheduled visitation and corroborated that he spent time with his son throughout the year equal to approximately one-half of all the days in the year. Jeff does not want his son to leave. He stated at the modification hearing, \\\"I want to be a part of my son's life. I want him to be a part of my family's life. I hate to miss out on him starting little league, him starting school, being at the parent-teacher conferences; basically, seeing my son grow up.\\\" Jeff's past visitation history bears witness to this statement.\\nJeff also testified that Kristy had told him that he had \\\"no rights\\\" and \\\"no say\\\" and that she \\\"gave [him] all the rights [he] had regarding [his son].\\\" Kristy had been asked about this earlier in cross-examination. She had responded, \\\"I don't recall. I \\u2014 in what \\u2014 I don't believe I did. I don't think I did.\\\" A follow-up question was asked: \\\"Could that be something that you would have said, you have no rights, you have what you're going to get, something to that effect?\\\" Her answer was \\\"No, I don't \\u2014 please \\u2014.\\\" A recess was then taken. A tape recording was produced that showed that in fact this disturbing remark was made by Kristy in a phone conversation with Jeff.\\nJeff also offered the testimony of Gerry Phaneuf, the director of career services at Creighton University. Phaneuf testified that his experience in the career services field included employment at Creighton University, the University of Nebraska-Lincoln, and Texas Tech University in Lubbock, Texas. His responsibilities have included organizing workshops specifically for women searching for employment. His contacts are not limited to employers searching for persons with college educations. Counsel for Kristy stipulated that Phaneuf is an expert in the area of employment opportunities in Nebraska.\\nPhaneuf was apparently allowed to be present in the courtroom when Kristy testified regarding her employment and educational history, as well as when she testified that there were no other places in Omaha that could offer her career opportunities similar to those present in Denver. Phaneuf testified as follows concerning his opinion about Kristy's assertions that similar opportunities are not available in Omaha:\\nA. In regards to the very specific job title that she has, probably not. I am not \\u2014 I can't say as of today what sort of specific opportunities are available in the very precise area she was mentioning. But in terms of the type of industry that she is in, there certainly are, in my opinion, far more opportunities that would be very closely related to what she is currently doing.\\nQ. And, for example, how would the employment opportunities that you have in mind differ from the specific one that she told the Court about in Denver?\\nA. It could be perhaps the type of product or the \\u2014 maybe a list of a retail type organization, perhaps a business-to-business organization. It could be a Sheppards Business Interiors or any number of organizations that deal with leasing products and business equipment in Omaha as many, many companies who do that.\\nQ. Given your experience and education, given the talent and the education that [Kristy] has told the Court about and the things that she does at her new job, are there places in Omaha where she could get a similar employment at a similar pay scale?\\nA. In my opinion, there would be plenty of opportunities for her, yes.\\nQ. To your knowledge are there any other places in Omaha that have corporate furniture leasing?\\nA. Almost any business \\u2014 professional business environment such as Sheppards or Raders or All Makes, those kinds of organizations have leasing programs, yes, sales and leasing.\\nQ. . . . Did you hear [Kristy] say her base salary would be exactly $25,000 with the hopes of commission of approximately five to six thousand dollars? Regarding the base salary, does that sort of job, do you believe, exist in the Omaha area?\\nA. Yes, I do.\\nQ. Okay. How about that commission range, five to six thousand dollars in the first year of work? Would that exist?\\n[A.] The answer is yes.\\nPhaneuf also testified that the cost of living is higher in Denver than in Omaha.\\nAfter hearing the evidence, the district court entered an order granting Kristy leave to remove Casey from Nebraska to Denver, increasing Jeff's support obligation to $525 per month, expanding Jeff's visitation, and ordering that certain travel expenses be equally shared by the parties. Jeff moved that the court reconsider its order. After his motion was denied, Jeff timely appealed to this court.\\nIII. ASSIGNMENTS OF ERROR\\nOn appeal, Jeff contends that the district court abused its discretion and erred in (1) granting Kristy's application to remove Casey from Nebraska to Denver and (2) failing to find that Jeff's support obligation should be decreased by the reasonable visitation expenses Jeff will incur by driving to Denver to visit Casey.\\nIV. ANALYSIS\\n1. Governing Principles\\nThe governing propositions of law for this type of case are as follows: The custodial parent has the burden of proving to the court that there is a legitimate reason for leaving the state and that it is in the minor child's best interests to continue to live with that parent, before a court will permit the removal of a child from the jurisdiction. Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994). The paramount question is whether the move is in the best interests of the child. See id. See, also, Evenson v. Evenson, 248 Neb. 719, 538 N.W.2d 746 (1995).\\n2. Kristy's Reasons for Move\\nKristy's justifications for changing her and Casey's home from Omaha to Denver may be summarized as follows: (1) to obtain employment which pays approximately the same salary as her job in Omaha; (2) because her boyfriend of 9 months lives in Denver; (3) to give her son the benefit of more outdoor activities, an amusement park, and professional sporting events; and (4) because of a nationally ranked school district in the Denver area.\\n(a) Career Opportunities\\nAs indicated above, a custodial parent must first prove to the court there is a legitimate reason for leaving the state. Harder, supra. The record does not establish that Kristy's career opportunities in Denver serve as a legitimate reason for this move. The new job Kristy has secured in Denver has no guarantees of paying her more than the amount she received at Cari Rental in Omaha. While she may indeed have been correct in concluding that the career opportunities at Cari Rental were limited, the expert testimony offered by Phaneuf established that opportunities exist in the Omaha area for a person with her skills. Her insistence on wanting to remain in the corporate furniture-leasing business borders on capricious. It is obvious from her own testimony that her search for other employment in Omaha was limited at best. We conclude that Kristy did not sufficiently prove that her employment opportunity in Denver was a legitimate reason for her to leave the state.\\n(b) Other Reasons for Move\\nWe also conclude that the fact that Kristy's boyfriend of 9 months lives in the Denver area is not a legitimate reason to move the child. This is not a situation, for example, where the custodial parent has remarried and the custodial spouse has had to move because of the new spouse's employment, as in Harder, supra. See, Vanderzee v. Vanderzee, 221 Neb. 738, 380 N.W.2d 310 (1986); Gottschall v. Gottschall, 210 Neb. 679, 316 N.W.2d 610 (1982); Friedenbach v. Friedenbach, 204 Neb. 586, 284 N.W.2d 285 (1979) (affirming removal order where custodial parent has remarried and new spouse is employed in another state).\\nKristy's assertion that outdoor activities, an amusement park, and professional sporting events in the Denver area serve as a legitimate reason to move fails as well. Given the record before us, were we to conclude otherwise, it would seem that any custodial parent who desires to leave the state merely has to con tend that Nebraska really does not offer \\\"the good life.\\\" While proximity to the mountains and a large metropolitan city may well be a setting desired by many, it is not sufficient reason to move this son 500 miles away from his father.\\nFinally, while Kristy testified regarding the schools in the Denver area, no evidence was offered that showed Omaha area public schools are inadequate or that Denver schools are so superior that a move is necessitated by such. The mother failed to carry her burden of establishing a legitimate reason necessitating the removal of this child from his father.\\n3. Best Interests\\nWe also conclude that a move to Denver with his mother is not in this child's best interests. As indicated above, the best interests of the child are the paramount question in cases such as the one before us. See Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994). While the Nebraska Supreme Court has not explicitly set forth factors to be considered in removal cases, the following are consistent with Nebraska case law. Factors to be considered in determining whether removal is in a child's best interests should be (1) the likelihood of enhancing the general quality of life for both the custodial parent and the child, (2) the motives of the custodial parent in seeking the move, (3) the motives of the noncustodial parent in resisting the move, (4) the visitation rights of the noncustodial parent, and (5) whether realistic and reasonable visitation schedules can be reached if the move is allowed. See, generally, Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996); Jones v. Jones, 110 Nev. 1253, 885 P.2d 563 (1994); In re Marriage of Herkert, 245 Ill. App. 3d 1068, 615 N.E.2d 833, 186 Ill. Dec. 29 (1993); Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), modified, Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988).\\nAs discussed above, Kristy has failed to demonstrate that moving to Denver provides an opportunity for an enhanced quality of life because of her alleged employment opportunity. With regard to Kristy's motives for this move, she testified that she \\\"always wanted to live [in Denver].\\\"\\nJeff testified in great detail regarding his relationship with Casey and the effect the proposed move would have on this rela-. tionship. Clearly, Jeff does not want his son to leave. His past visitation history demonstrates that he treasures his relationship with his son. Jeff spent time with his son throughout the year equal to approximately one-half of all the days in the year. He testified to his reasons for desiring that his son stay in Omaha, as recounted above.\\nKristy's remarks that Jeff has \\\"no rights\\\" and \\\"no say\\\" and that she \\\"gave [him] all the rights [he] had regarding [his son]\\\" are disturbing. Such remarks are certainly not indicative of the kind of attitude necessary to foster a long-distance relationship between Casey and Jeff.\\nIt is axiomatic that consideration of the visitation rights of the noncustodial father and whether a realistic and reasonable visitation schedule can be reached if the move is allowed is vital in these cases. The \\\"problem\\\" in this case is that we have a noncustodial parent who spends one-half of the year with his child. Obviously this is going to be impacted when the child moves over 500 miles away. The court's order permitting Kristy to move Casey to Denver deprives Jeff of frequent and continuing contact with his child. The consequence of the trial court's ruling is that Jeff's parenting participation is significantly altered. For him to see Casey during the week is for all practical purposes unrealistic and impossible. The number of weekends that he will be able to see Casey is reduced considerably. Sometimes these consequences are the unalterable effects of divorce. They are not the most desirable effects or the effects that would be achieved in a perfect world. Rather, such disruptive consequences in the lives of parents and the lives of children are just not avoidable. This is not one of those cases.\\nA reasonable visitation schedule is one that will nurture a child's relationship with the noncustodial parent. When a parent has diligently exercised his visitation rights, a court should not interfere with them by permitting removal of the child for capricious, unconvincing, or deficient reasons. The Nebraska Legislature has indicated its agreement with these principles by the passage in 1993 of Neb. Rev. Stat. \\u00a7 43-2901 et seq. (Reissue 1993 & Cum. Supp. 1994), the Parenting Act.\\nIn the case before us, we have a father who has exercised his visitation rights without fail and clearly cherishes his attachment to his child. We are not confronted here with the more difficult issue trial judges are called upon to weigh \\u2014 where a move is demonstrated as necessary due to legitimate reasons and the trial court must resolve whether the benefit to the child in going with the moving parent outweighs the loss or diminution of contact with the nonmoving parent. In this case, we are confronted with a move which has not been demonstrated as necessary or as due to any legitimate reason, and the benefit to the child in going with his mother is outweighed by the loss of contact with his father.\\nV. CONCLUSION\\nTherefore, we reverse that portion of the district court's modification order that allowed Casey's removal to Colorado and that portion of the order that changed the visitation schedule. The order is modified to the extent that we order the prior visitation schedule to be reinstated. We affirm that part of the order as regards child support. We remand the cause for further proceedings consistent with this opinion.\\nAffirmed in part, affirmed in part as modified, and in part reversed and REMANDED FOR FURTHER PROCEEDINGS.\"}"
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+"{\"id\": \"2353241\", \"name\": \"Jerry Ackerman v. J. F. Bryan et al.\", \"name_abbreviation\": \"Ackerman v. Bryan\", \"decision_date\": \"1891-11-25\", \"docket_number\": \"\", \"first_page\": \"515\", \"last_page\": 518, \"citations\": \"33 Neb. 515\", \"volume\": \"33\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:37:26.979898+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Jerry Ackerman v. J. F. Bryan et al.\", \"head_matter\": \"Jerry Ackerman v. J. F. Bryan et al.\\n[Filed November 25, 1891.]\\n1. Th.0 Petition examined, and held to state a cause of action.\\n2. Verdict. A verdict will not be set aside for errors committed without prejudice to the plaintiff in error.\\n3. -. Where a verdict is returned for the plaintiff in an action - upon contract, the defendant cannot complain that the verdict is not justified by the evidence because, under the contract, plaintiff should have recovered a larger sum, or nothing. (Fiseher v. Holmes, 24 N. E. Rep. [Ind.], 377.)\\nError to the district court for Gage county. Tried below before Broady, J.\\nA. Hardy, for plaintiff in error,\\ncited: Wasson v. Palmer, 13 Neb., 378; Ballard v. State, 19 Id., 619; Fitzgerald v. Meyer, 25 Id., 82; Greer v. Blanchar, 40 Cal., 194; Schuyler Nail. Bank v. Bollong, 24 Neb., 828; Peck v. Lake, 3 Lans. [N. Y.], 136; Tibbetts v. Sternberg, 66 Barb. [N. Y.], 201; Van Livery v. Fitzgerald, 21 Neb., 36-41; Thompson, Trials, 1970, and cases; St. Louis Brewing Co. v. Bodeman, 12 Mo. App., 573.\\nR. S. Bibb, contra.\", \"word_count\": \"1037\", \"char_count\": \"5869\", \"text\": \"Norval, J.\\nThis action was brought in the court below by the defendants in error to recover the sum of $75 as commissions for the purchase of real estate for the plaintiff in error.\\nThe petition alleges, in substance, that the plaintiffs are engaged in the business of buying and selling real estate upon commissions; that on or \\u00e1bout the 10th day of May, 1889, the defendant requested the plaintiffs to purchase for him a certain farm owned by one Matt Williams, at the price of $2,000; that the defendant then and there agreed to pay the plaintiffs the sum of $75 if they purchased for him said farm at the said sum of $2,000 as payment for the services of the plaintiffs in making the purchase; that plaintiffs, in pursuance of said employment and agreement, purchased for said defendant said farm at the agreed price of $2,000, and were ready, willing, and able to deed or cause to be deeded to the defendant, said farm; that the defendant, after the plaintiffs had procured for him said land at the price, and upon the terms agreed upon, refused to take said land, and has ever since refused, and still refuses, to take the same, and has ever since refused, and still refuses to pay the plaintiffs the said sum of $75 so agreed upon, as payment for their services, although often requested so to do, to the plaintiffs' damage in the sum of $75, with interest thereon at seven per cent from June 1, 1889.\\nThe answer is a general denial. The cause was tried to a jury, with a verdict for the plaintiffs in the sum of $19.\\nUpon the trial, the defendant objected to the introduction of any testimony for the reason that the petition fails to state facts sufficient to constitute a cause of action, which objection the court overruled. This ruling is the first error complained of. The petition, liberally construed, states a cause of action. It avers the employment of the plaintiffs by the defendant, to purchase for him the farm at a stipulated price; that the defendant agreed to pay for said services the sum of $75, in the event the plaintiffs made the purchase; that the plaintiffs procured the land at the price and upon the terms agreed upon, but that the defendant refused to take the same, or to pay the plaintiffs for their services. This was sufficient averment of.performance of the contract on the plaintiffs' part and breach thereof by the defendant. It was not necessary to allege that they procured a deed to be made and tendered it to Ackerman, as the action was not brought to recover any portion of the purchase price of the land, but for commissions claimed to have been earned in negotiating the purchase. When the plaintiffs obtained the consent of Mr. Williams, the owner of the land, to convey it for the $2,000, and the defendant refused to pay the money and complete the deal, nothing further was required of the agents to entitle them to compensation for their services from Ackerman, in case there existed a contract of employment. What has been here said disposes of the criticisms made upon the instructions. The charge of the court, taken as a whole, fairly submitted the case to the jury.\\nA. M. McMasters, one of the plaintiffs, testified that Ackerman made the contract of employment with the witness, and to the terms of the agreement. He further testified that he made a memorandum of the contract in the presence of the defendant, which paper was received in-evidence over the defendant's objection. If there be any error in this ruling, it was not prejudicial to the party here complaining. There is nothing in the memorandum which in the least degree tends to show that the defendant employed the plaintiffs to purchase the farm or that he ever promised to pay them therefor. If anything the paper contradicts the plaintiffs.\\nIt is finally urged that the verdict is not justified by the evidence. There was testimony given by the plaintiffs to the effect that they were employed by the defendant to purchase the farm for him at a stipulated sum, for which services he agreed to pay as commissions the sum of $75; no more and nothing less. The defendant testified that h\\u00ab did not employ them and never promised to pay them anything. In no view of the evidence were the jury justified in returning of a verdict for $19. The plaintiffs were entitled to recover $75 and interest thereon, or nothing. The jury, having found that the parties made the contract sued on, the defendant cannot complain because the verdict was not for a larger sum. (Fischer v. Holmes, 24 N. E. Rep. [Ind.], 377.) The authorities cited in the brief of plaintiff in error would be applicable if the defendants in error were seeking a reversal of the case on the ground that the verdict was too small. There being no prejudicial error in the record, the judgment is\\nAffirmed.\\nThe other judges concur.\"}"
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+"{\"id\": \"2368455\", \"name\": \"Ross P. Curtice Company, appellant, v. Estate of Owen L. Jones, appellee\", \"name_abbreviation\": \"Ross P. Curtice Co. v. Estate of Jones\", \"decision_date\": \"1923-11-16\", \"docket_number\": \"No. 22554\", \"first_page\": \"166\", \"last_page\": 171, \"citations\": \"111 Neb. 166\", \"volume\": \"111\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:44:36.145039+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Day, Rose and Letton, JJ., Shepherd, District Judge.\", \"parties\": \"Ross P. Curtice Company, appellant, v. Estate of Owen L. Jones, appellee.\", \"head_matter\": \"Ross P. Curtice Company, appellant, v. Estate of Owen L. Jones, appellee.\\nFiled November 16, 1923.\\nNo. 22554.\\n1. Trial: Motion for Directed Verdict. Upon motion by defendant for directed verdict at the conclusion of the plaintiff\\u2019s evidence, the motion must be treated as an admission of the truth of all materia) and relevant evidence admitted and all proper inferences to be drawn therefrom, and if the evidence tends to sustain the allegations of the petition, and the petition states a cause of action, the case should be submitted to the jury. Wheeler v\\u25a0 Abbott, 89 Neb. 455.\\n2. Attorney and Client: Authority op Attorney: Presumption. Ordinarily the power of an attorney to act for his client in an action is to be considered valid and sufficient till disproved, not void or insufficient until proved. And this applies to the power of an attorney in dealing with claims or prospective claims against an estate which he is actually engaged in settling.\\nAppeal from the district court for Gage county: Leonard W. Colby, Judge.\\nReversed.\\nSteioart, Perry & Stewart and Hazlett, Jack & Laughlin, for appellant.\\nMcCandless & McGuire, contra.\\nHeard before Morrissey, C. J., Day, Rose and Letton, JJ., Shepherd, District Judge.\", \"word_count\": \"1698\", \"char_count\": \"9771\", \"text\": \"Shepherd, District Judge.\\nOwen L. Jones purchased an Ampico Franklin piano from the Ross P. Curtice Company, appellant, on a conditional sale contract note, a note of the kind long upheld by the courts and now generally used throughout the state. Shortly afterward the company shipped the instrument with bench, cabinet and records to Jones at Wymore, Nebraska, where the latter was then staying. It was received there and delivered, as appellant contends, to Owen L. Jones, through his brother, R. J. Jones. It is established that this brother receipted to the Chicago, Burlington & Quincy Railroad Company's agent for it, \\\"O. L. Jones, by R. J. Jones,\\\" and thereupon proceeded to load the piano on a wagon for the purpose of hauling it to the house where Owen L. Jones then was. In the loading, however, the instrument fell to the ground and was considerably damaged. R. J. Jones immediately telephoned the Curtice company (the telephone conversation was excluded by the court) and arranged for the return of the piano to it for repairs. This was promptly done. Owen L. Jones died shortly thereafter. Upon completion of the repairs the company wrote the attorneys for his estate informing them of the fact and requesting advice as to the piano's disposition. The attorneys wrote back advising the company to file its claim for repairs, saying that the piano had been damaged in shipment and that the estate could not be compelled to take it, and suggesting that it be sold. In an earlier letter they stated that they were the attorneys in charge of the settlement of the estate, requested appellant to take proper care of the piano, and advised it that the bench, etc., were subject to the company's order. The court ruled out both of these letters.\\nIn due course, no settlement having been made, appellant filed claim against the estate of the deceased, both for the price of the piano and for its repair bill. The claim was disallowed in the county court. The district court directed a verdict for the defendant on appeal; and the case is now here for review.\\nOther pertinent facts are that the said Owen L. Jones signed the contract note, \\\"O. L. and R. J. Jones, by Owen L. Jones,\\\" and paid $200 on it, $100 in cash and $100 in services; also, that the bench, cabinet and records had never been returned to the appellant.\\nIn the amended petition the appellant declared on the contract note and on the bill of repairs in separate counts, setting out the note in hsec verba and duly making all necessary allegations as to the facts above recited. Granting that the contract is valid and enforceable, the petition fully stated a cause of action on each of the two counts referred to. The appellee, Estate of Owen L. Jones, deceased, answered by its administrator, admitting the execution of the contract note and that Owen L. Jones had paid $200 thereon, and averring that appellant had been fully paid all sums due on said contract, and that the piano was never delivered to said Jones, but retained in the possession of the appellant. The answer further states that Jones was ill and physically and mentally incompetent to transact business when the contract was entered into, and that the piano \\\"came to Wymore and was shipped back to the plaintiff\\\" without his knowledge. The answer also generally denies the second cause of action. The appellant filed reply denying all of the allegations of the answer except those admitting the allegations of its petition.\\nComplaint is made because the court refused to permit William A. Howland, treasurer of the plaintiff company, to testify concerning a telephone call which he received from R. J. Jones, of Wymore, Nebraska, requesting that certain repairs be made on the piano; also in refusing to receive in evidence that portion of the deposition of Marshall E. Johnson concerning a telephone call which he received from R. J. Jones, in which said Jones stated that the piano had been damaged and was being returned to the plaintiff for repairs; also because the court directed a verdict for the appellee, defendant.\\nWe think the letters in question should have been received. They were in the ordinary course of business, and tend to show, in connection with the other evidence, that the company took back the piano to repair it, and not to recover it upon condition broken, or to disavow the sale, or to assert title or right of possession. Even if we concede that the attorneys were not agents of the estate, the appellant would seem entitled to the evidence offered for the purpose of showing the character of its possession. One of these letters states that said attorneys were in charge of the settlement of the estate. It is usually so in practice. Attorneys of an estate are peculiarly its guardians against claims, particularly advised of the facts in relation thereto, particularly careful not to concede or admit. This was a claim which was denied and which would obviously be contested. The letters are important. In one of them it is suggested that the company take proper care of the piano, inferentially showing, or tending to show, that the estate had an interest in it. In the other it is advised that a claim for repairs be filed against the estate. Ordinarily the power of an attorney to act for his client in an action is to be considered sufficient till disproved, not void or insufficient until proved. This applies to the power of an attorney in deal ing with claims or prospective claims against an estate which he is actually engaged in settling.\\nBut, without regard to this, we are of opinion that there was enough in the evidence received to entitle the plaintiff to go to the jury. The contract note was a good conditional sale contract. Osborne Co. v. Plano Mfg. Co., 51 Neb. 502; Racine-Sattley Co. v. Meinen, 79 Neb. 33. When plaintiff filed its claim against the estate it elected to, and did, make said sale absolute, at least if delivery had been made to Jones in his lifetime and the piano had not been repossessed on claim of right of possession. Mathews Piano Co. v. Markle, 86 Neb. 123. It appears that Owen L. Jones not only made payment on the contract, but directed its delivery at Wymore. The witness Johnson testified: \\\"He wanted to know at the time if we would lay the piano down f. o. b. Wymore, which I agreed to.\\\" This evidence, though of an oral conversation before the execution of the contract, was not inconsistent with any of the contract terms, and proper as indicating the place of-delivery which was not fully fixed therein. The written contract shows that the piano was to be kept at Wymore. The testimony shows that Owen L. Jones was there when it arrived. The brother who received it had been with him in Lincoln during a part of'the negotiations for its purchase. He was the Jones whose name Owen L. \\u00e1ffixed with his own to the contract note. He receipted for the instrument in the name of Owen L. He said when it was turned over to him by the station agent that he was taking it to Owen L. at the house where he then was. All this is enough, and more than enough, to tend to prove that delivery was made to Owen L. Jones. There was further direct evidence that the appellant company had the instrument back for repairs only, and has held it ever since subject to the order of the estate. It is undisputed that there remains due on the note $725, and that the expense of repairs and freight was $34.\\nIt is entirely possible that the estate could maintain its defense of nondelivery by the testimony of R. J. Jones and others. It is possible that its further defense on the ground that Owen L. Jones was incompetent to contract could be made good. We decide only that the appellant made a case for the jury. This conclusion is amply sustained by authority. Upon motion by defendant for directed verdict at the conclusion of plaintiff's evidence, such motion must be treated as an admission of the truth of all material and relevant evidence admitted and all proper inferences to be drawn therefrom, and if the evidence tends to sustain the allegations of the petition, and the petition states a cause of action, the case should be submitted to the jury. Wheeler v. Abbott, 89 Neb. 455; Oleson v. Oleson, 90 Neb. 738. Citations to this effect might be multiplied, but the rule is so well recognized as to render this unnecessary.\\nFor the reasons above stated, the court holds that the court below was in error in directing a verdict, and that the judgment must be reversed and the cause remanded for a new trial.\\nReversed and remanded.\"}"
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+"{\"id\": \"2372327\", \"name\": \"Otto Brooks, appellant, v. Omer C. Flora, appellee\", \"name_abbreviation\": \"Brooks v. Flora\", \"decision_date\": \"1923-10-20\", \"docket_number\": \"No. 22449\", \"first_page\": \"9\", \"last_page\": 12, \"citations\": \"111 Neb. 9\", \"volume\": \"111\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:44:36.145039+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Aldrich, Day and Dean, JJ., Colby and Redick, District Judges.\", \"parties\": \"Otto Brooks, appellant, v. Omer C. Flora, appellee.\", \"head_matter\": \"Otto Brooks, appellant, v. Omer C. Flora, appellee.\\nFiled October 20, 1923.\\nNo. 22449.\\nAppearance. Where a defect in the service of process upon a defendant in an action in personam appears on the face of the record and he appears specially to object to the jurisdiction of the court over his person, and the objections are overruled, if such defendant answers over to the merits he thereby enters a general appearance in the action.\\nAppeal from the district court for Deuel county: J. Leonard Tewell, Judge.\\nReversed.\\nMcKillip & Barth, for appellant.\\nHalligan, Beatty & Halligan, contra.\\nHeard before Morrissey, C. J., Aldrich, Day and Dean, JJ., Colby and Redick, District Judges.\", \"word_count\": \"1166\", \"char_count\": \"6815\", \"text\": \"Dean, J.\\nThis action originated in the county court of Deuel county, where plaintiff sued to recover $509 for the alleged conversion by defendant of a quantity of wheat. Defendant, at all times material to this inquiry, was a resident of Sedgwick county, Colorado, and was served in that county with a summons issued out of the county court of Deuel county, Nebraska, by the sheriff of Sedgwick county, Colorado, who was regularly appointed by the sheriff of Deuel county for that purpose. Defendant appeared specially in county court and objected to the jurisdiction of the court. His objections were overruled. Thereupon he filed his answer in the county court repeating therein his objections to jurisdiction which he had formerly filed. In his answer he pleaded additional defenses in respect of the merits. Upon the hearing the county court found in plaintiff's favor and rendered judgment against defendant for $509 and costs. Defendant appealed to the district court from the judgment of the county court.\\nThe district court held, inter alia, that the facts, as pleaded, presented \\\"an action in personam,\\\" and that when the action was begun \\\"defendant was absent from and not a resident of Deuel county,\\\" but was a resident of Jules-burg, Colorado, and dismissed the action. Alleging error, plaintiff executed an appeal bond and brought the case to this court for review.\\nIn the case before us the alleged defect in respect of the summons and its service upon defendant appears oh the face of the record. In the answer, in respect of the merits, this statement, inter alia, appears:\\n\\\"The defendant hereby offers to do equity in the premises and tenders the amount due upon said execution into the court together with interest and costs to date. Wherefore this defendant prays that the plaintiff's action be dismissed and that he recover his costs herein expended.\\\"\\nIt does not appear that defendant actually tendered any money into court, but from the pleadings, and particularly from defendant's answer, it is obvious that the power of th\\u00e9 court must necessarily be invoked to determine the sum that was due. This appears from the fact that in his petition plaintiff sued to recover $509. In his answer defendant pleaded that less than half of that sum was due. But that defendant did not have it in mind to tender $509 into court for plaintiff is apparent. It follows that an undetermined question of fact was thereby tendered by defendant which, in view of the record, must necessarily be determined by the court, or by a jury, as occasion might warrant. Human nature is such that it is only natural to conclude that in the case before us a disagreement would at once have arisen between the parties on the question of the amount which was due. It follows that affirmative action would have been required on the part of the court to hear and determine the controversy, and that \\\"such appearance calls for the judgment of the court upon matters outside of the mere question of the jurisdiction of the court, and amounts to a general appearance in the case.\\\" Barkhurst v. Nevins, 106 Neb. 33. In brief, the defendant, having invoked the power of the court on a question other than jurisdiction, thereby, under our earlier and our more recent decisions, submitted to its jurisdiction.\\nCrowell & Crowell v. Galloway, 3 Neb. 215, is an early case where Judge Lake, speaking for the court, said: \\\"If a defendant intend to rely on the want of personal jurisdiction, as a defense to a judgment entered against him, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court; if he appear for any other purpose, such appearance is general and a waiver of all defects in the original process, and an acknowledgment of the complete jurisdiction of the court in the action.\\\" In Pearson v. Kansas Mfg. Co., 14 Neb. 211, we held: \\\"An appeal from a judgment in a personal action gives the appellate court jurisdiction of the appellant regardless of whether the lower court had acquired jurisdiction over him or not.\\\" The Pearson case was cited with approval in Dunn v. Haines, 17 Neb. 560. In Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, we held: \\\"If a defendant invoke the judgment of the court, in any manner, upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general.\\\" To substantially the same effect is Montague v. Marunda, 71 Neb. 805. In Sampson v. Northwestern Nat. Life Ins. Co., 85 Neb. 319, this court held: \\\"Where a defect in the service of process appears upon the face of the record, and a special appearance questioning the jurisdiction is overruled, if the defendant answers over to the merits, he thereby enters a general appearance in the action.\\\" In Grand Lodge, A. O. U. W., v. Bartes, 64 Neb. 800, we held: \\\"Where such (fraternal beneficiary) association is not privileged from being sued in the county where the action against it is commenced, and it appears in such action and files an answer which contains an objection to the jurisdiction, and also a defense to the action upon the merits thereof, such answer is a waiver of the jurisdictional questions, and the case should be proceeded in and tried upon its merits.\\\"\\nSome confusion has crept into the decisions of our court on the question of special appearance, in this class of cases, and the rule applicable to the pleader who answers over to the merits. The early rule in the state, and the more recent rule as well, is stated in the excerpt from the Sampson case which is above cited.\\nSubsequent to the earlier decisions on this question the rule was modified in some respects and thereby its application became confused. However in Banker's Life Ins. Co. v. Robbins, 59 Neb. 170, which was decided in 1899, and herein cited, and in the Sampson case as well, the earlier rule was followed and both cases have been cited and approved continuously from the time of their adoption. We believe it to be the preferable rule and adhere thereto.\\nThe judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.\\nReversed.\"}"
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+"{\"id\": \"2377194\", \"name\": \"Juanita Hamaker, appellant, v. Abraham L. Patrick, appellee\", \"name_abbreviation\": \"Hamaker v. Patrick\", \"decision_date\": \"1932-10-07\", \"docket_number\": \"No. 27986\", \"first_page\": \"809\", \"last_page\": 817, \"citations\": \"123 Neb. 809\", \"volume\": \"123\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:07:06.933881+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Rose, Dean, Good, Eberly, Day and Paine, JJ.\", \"parties\": \"Juanita Hamaker, appellant, v. Abraham L. Patrick, appellee.\", \"head_matter\": \"Juanita Hamaker, appellant, v. Abraham L. Patrick, appellee.\\nFiled October 7, 1932.\\nNo. 27986.\\nHerman Aye and L. J. Te Poel, for appellant.\\nWilliam Baird & Sons and L. C. Hwpp, contra.\\nHeard before Rose, Dean, Good, Eberly, Day and Paine, JJ.\", \"word_count\": \"2835\", \"char_count\": \"16317\", \"text\": \"Eberly, J.\\nThis is an action at law, brought in the district court for Douglas county by Juanita Hamaker against Abraham L. Patrick. Plaintiff sets forth in her petition two counts to recover for loss occasioned by the occupation and use of lands of plaintiff held by the defendant for three years. The first count sets forth an oral contract by defendant to pay the plaintiff the sum of $1,275 a year for said occupancy, and the second count sought a recovery of the same use and occupancy, to be determined and fixed by the reasonable value of the us\\u00e9 of these lands for the same period of time covered by the first count. The obvious intention of the pleader was to meet the conditions which the evidence as finally introduced on the trial might establish, and is permitted by the Code.\\nTo this petition the amended and substituted answer of the defendant was filed, and the plaintiff filed a reply.\\nA trial was had to a jury, both parties introducing evidence to sustain the allegations of their respective pleadings.\\nAt the close of all the evidence, a motion was orally made by the defendant for an instructed verdict in his behalf. This motion the trial court then overruled, and submitted the case to the jury on the pleadings, the evidence, and the instructions of the court. This jury, on January 8, 1931, it being one of the days of the October, 1930, term of that court, returned a verdict for plaintiff as prayed in the first count of plaintiff's petition, and judgment was entered thereon. On January 9, 1931, defendant filed his motion for a new trial.\\nOn the 28th day of February, 1931, in the February, 1931, term of the district court for Douglas county, the motion for new trial was sustained by the court, and the verdict of the jury and judgment rendered thereon set aside. In addition thereto, at this time the district court further adjudged \\\"that the order of the court overruling the motion of the defendant for a directed verdict or a dismissal of the action made at the time of the closing of the evidence in the trial of this case, be and is hereby vacated and set aside, and said motion be and is hereby sustained, and the above entitled action be and is hereby dismissed,\\\" etc. From this order, without filing a motion for a new trial, plaintiff prosecutes error by availing herself of her statutory appeal.\\nAt the former hearing of this cause at the bar of this court both parties united in presenting the questions involved as necessitating for their proper determination a reference to the evidence contained in the bill of exceptions, which had been duly allowed and constituted a part of the record then before us. But the \\\"aggrieved party\\\" in the district court had filed no motion for a hew trial. On the basis of submission thus made the judgment of the district court was affirmed. Hamaker v. Patrick, 122 Neb. 688. However, thereafter plaintiff's motion for a rehearing was allowed.\\nNow, for the first time, is presented by the appellant a question of the power (in a sense, jurisdiction over the subject-matter) of the trial court, after having sustained a motion for a new trial at a term subsequent to that at which the jury's verdict was returned and judgment entered thereon, to then enter the final judgment in favor of the appellee appealed from. This question involves no examination of the evidence adduced in the trial court.\\nAppellee challenges the right of the appellant to at this time raise this question, basing his objections upon the rule that \\\"A party cannot, by filing a brief after the submission of the cause, bring to the notice of the court points not suggested either in the original briefs or on oral argument.\\\" He cites in support thereof State v. Omaha Nat. Bank, 59 Neb. 483, and Batty v. City of Hastings, 69 Neb. 511. The essential difference between the facts of the record in the instant case and the facts in the cases cited, and to which the rule quoted is applicable, are such as render the authorities on which the appellee relies not in point. In the instant case the motion for rehearing has been heretofore sustained by this court, the judgment of affirmance set aside, and a reargument ordered. Under the rules of this court, this cause is now in the same situation as though no previous argument or submission of the cause had been had. The entire record is open to our consideration. And while it is true that the controlling question now presented was not included in the first brief of appellant filed in this cause, it is contained in appellant's \\\"brief on rehearing.\\\" The appellee thus had full opportunity to discuss it.\\nThe question now before us involves the inherent power of the district court, not over persons, but over subject-matter. Very respectable authorities sustain the proposition that \\\"The appellate court will, without any assignment of error or specification in the grounds or reasons of appeal, notice the lower court's want of juris: diction over the subject-matter.\\\" 3 C. J. 1343. The reasoning upon which the authorities collated in support .of the text quoted are based afford ample justification of the exercise by this tribunal of its statutory power to, \\\"at its option, consider a plain error not specified in appellant's brief.\\\" Comp. St. 1929, sec. 20-1919.\\nAs suggested, the sole question presented for our determination in the present case is the power of the district court in a law case, at a term subsequent to that at which a jury trial was had, to sustain a motion for a new trial seasonably filed, and thereupon, on its own motion, and without intervention of a second jury, enter a final judgment of dismissal therein.\\nIt is obvious that no authority for so proceeding is to be found in Netusil v. Novak, 120 Neb. 751, or First Nat. Bank v. Broyles, 122 Neb. 414, here cited.\\nThe controlling principle announced in these cases is not new to the jurisprudence of this state. The ancient common-law authorities phrased the rule as follows: \\\"During the term wherein any judicial act is done, the record remaineth in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during that term, as the judge shall direct; but when-the term is past, then the record is in the roll, and admitteth no alteration, averment, or proof to the contrary.\\\" 2 Coke's Littleton, 260a; 3 Lewis' Blackstone's Commentaries, *407.\\nIn Smith v. Pinney, 2 Neb. 139, Lake, J., in delivering the . opinion of this court, employed the following language: \\\"But it is said that the power of the district court over its own judgment is entirely discretionary, and not subject to review-by this court. This is true of its orders made during the term at which the judgment is rendered; but this discretion ends with the rising of the court. Thereafter this power must be exercised within the limits prescribed by the statute, and governed by fixed principles of law. To these the courts must confine their action; and any substantial departure therefrom, resulting in an injury to a suitor, may subject their judgment to review and reversal by proceedings in error. Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445; Taylor v. Fitch, 12 Ohio St. 169.\\\"\\nThis rule, as thus limited, this court has consistently followed. McCann v. McLennan, 3 Neb. 25; Wise v. Frey, 9 Neb. 217, 220; Hansen v. Bergquist, 9 Neb. 269, 277; Volland v. Wilcox, 17 Neb. 46; Harris v. State, 24 Neb. 803; Symns v. Noxon, 29 Neb. 404; Bigler v. Baker, 40 Neb. 325; Bradley v. Slater, 55 Neb. 334; Young v. Estate of Young, 103 Neb. 418; Douglas County v. Broadwell, 96 Neb. 682; Winder v. Winder, 86 Neb. 495; Coxe Bros. & Co. v. Omaha Coal, Coke & Lime Co., 4 Neb. (Unof.) 412; Coulton v. Pope, 77 Neb. 882; Citizens State Bank, v. Young, ante, p. 786.\\nIn Colby v. Maw, 1 Neb. (Unof.) 478, Justice Sedgwick, then Commissioner, in an opinion unanimously approved by this court, announced the principle in a law case that \\\"The district court, after entering a judgment not supported by the evidence in an action tried by the court, may at the same term set aside such judgment and enter the proper judgment without again hearing the evidence.\\\"\\nIn Netusil v. Novak, 120 Neb. 751, Day, J., applied this well-established principle to the facts disclosed by the record then before the court, in the following language: \\\"During the trial of a case, the court overruled a motion to direct a verdict for defendant and submitted the case to the jury. The jury returned a verdict for plaintiff and judgment was entered thereon. A motion for new trial was filed and argued, whereupon, at the same term, the court, on its own motion, set aside the verdict of the jury and the judgment and dismissed the action. Held, that the trial court had the right and power to vacate, set aside, amend or correct any judgments or orders made by it at the same term.\\\"\\nThe principle so announced was reaffirmed in First Nat. Bank v. Broyles, 122 Neb. 414.\\nIt will be noted that, in each of the cases cited, the court has consistently and expressly limited the exercise of this judicial power, now under consideration, to the term at which the judgment whose vacation or modification is sought was entered. In view of this controlling limitation, this principle may not in the present case be applied to sustain the action of the district court.\\nAs already suggested, the instant case was not one in which the verdict returned was special; neither did the court order the case reserved for future consideration, but judgment had been entered on the verdict, as required by section 20-1313, Comp. St. 1929. The only matter undisposed of in this case, when the February, 1931, term of the trial court convened, was a pending motion for a new trial in which the sole relief sought was \\\"to vacate and set aside the verdict of the jury and for a new trial.\\\" This motion does not expressly assign as one of its grounds that, upon the statements of the pleadings, he, the defendant, is entitled by law to a judgment in his favor (Comp. St. 1929, sec. 20-1315) ; neither does the district court disclose in its order of February, 1931, whether it is based on a defect of pleading, or because of insufficiency of the evidence.\\nNevertheless, as we have already seen, this final judgment appealed from is sustainable, if at all, upon the insufficiency of the pleadings to support the verdict. At common law, judgments non obstante veredicto, if granted at all, can be granted upon the record alone. The evidence is not considered; the pleadings only are looked to. 14 Stand. Ency. of Proc. 958, 959. Nebraska has adopted this rule as applicable to her statutory provisions relat ing to this subject. This governing statute, in the light of which the Nebraska decisions hereinafter referred to were made, is in the following language: \\\"Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.\\\" Comp. St. 1929, sec. 20-1315.\\nIn this connection, it is to be remembered that section 20-2225, Comp. St. 1929, provides for and contemplated the continuance of existing common-law remedies, available at and prior to the adoption of the Civil Code, where substantial rights which are to be protected are clearly outside of the provisions of our statutory procedure.' Smithson v. Smithson, 37 Neb. 535. No express statutory method appears to have been provided to secure the rights confirmed by the language of the statutes above quoted; and Pound, C., in rendering the opinion, approved by this court, in Barge v. Haslam, 65 Neb. 656, says: \\\"It is settled that the purpose of section 440 (now section 20-1315, Comp St. 1929) was to take over and adapt the common-law practice as to rendering judgment non obstante veredicto. Manning v. City of Orleans, 42 Neb. 712; Johnston v. Spencer, 51 Neb. 198.\\\"\\nAs applicable and mandatory at the stage of the proceedings set forth in the instant record, without reference to the bill of exceptions, this court has long announced, as the doctrine controlling, that, \\\"If the trial court is of the opinion that, in view of plaintiff's evidence, it erred in submitting the case to the jury and should have directed a verdict for the defendant, the proper course is to grant a new trial.\\\" Barge v. Haslam, 65 Neb. 656.\\nSo, too, in reviewing a record involving the limitation under consideration, we have said: \\\"In a case in which a party is entitled to a jury trial, and where the pleadings do not confess the right to a judgment, the court cannot disregard the verdict and enter such judgment as the evidence warrants. If the verdict is not sustained by the evidence, the remedy is by motion for a new trial on that ground.\\\" Manning v. City of Orleans, 42 Neb. 712. See, also, Kenesaw Mill & Elevator Co. v. Aufdenkamp, 106 Neb. 246; Slocum v. New York Life Ins. Co., 228 U. S. 364.\\nBut the trial court, after expressly sustaining the motion for a new trial in the instant case, without further hearing, immediately entered judgment dismissing plaintiff's action. The situation thus created suggests as a serious question the possibility of sustaining this judgment without reference to the state of the pleadings as a judgment entered non obstante veredicto. The rule appears to be that, where a judgment non obstante veredicto is desired, a motion therefor should be made. Coonrod v. Benson, 2 Greene (la.) 179.- The present record discloses no such motion tendered, or in behalf of defendant. So, too, it appears to have been determined that, on a motion for a new trial, a party cannot be granted a judgment non obstante veredicto. Netzer v. City of Crookston, 66 Minn. 355.\\nOur section 20-1315 is identical with a similar provision of the Ohio Civil Code, from which it was adopted. Construing this identical language the courts of Ohio at an early day held that, where the motion for a new trial is granted, the motion for judgment non obstante veredicto will be denied. Harker v. Smith, 5 Ohio Dec. 560. And it is said in a learned work on the Code practice of that state: \\\"Where a party moves both for a new trial and for judgment non obstante veredicto, the former motion is to be heard first, and if granted the other motion is surrendered, for as soon as a new trial is granted the other party has the right to ask leave to amend his pleadings.\\\" 1 Bates, New Pleading, Practice, Parties and Forms, 428. If these authorities are to be accepted, the judgment here appealed from may not be sustained, and further discussion of this case is unnecessary. Without a final determination of the question suggested, but on the tentative assumption, for the purposes of this case, that the question involved in the judgment non obstante veredicto was in some proper manner presented to and decided by the trial court, the members of this court are unanimously of the opinion that the district court has erred in entering final judgment for defendant and in the dismissal of the action. The controlling test appears to be: \\\"A motion for judgment on the pleadings requires a consideration of what may be found in all the pleadings as the ultimate facts.\\\" McMillan v. Chadron State Bank, 115 Neb. 767.\\n\\\"It will only be granted when it is clear that the cause of action or defense put upon the record does not in point of substance constitute a legal cause of action or defense; a mere technical defect in the pleadings is not sufficient ground upon which to grant a judgment non obstante veredicto.\\\" 14 Stand. Ency. of Proc. 960.\\nIn view of these tests, this court is convinced that the pleadings in the instant case were ample to support the judgment entered upon the verdict of the jury in the trial court.\\nIt follows that the district court erred in the entry of the judgment non obstante veredicto finding for defendant, and dismissing plaintiff's cause of action. This judgment of the trial court is, therefore, reversed, and the cause remanded, with directions to proceed with the trial thereof, as provided by law.\\nReversed.\"}"
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+"{\"id\": \"2380661\", \"name\": \"B. F. Gentry, Trustee, appellee, v. Harlan Burge et al., appellants\", \"name_abbreviation\": \"Gentry v. Burge\", \"decision_date\": \"1935-07-12\", \"docket_number\": \"No. 29005\", \"first_page\": \"493\", \"last_page\": 499, \"citations\": \"129 Neb. 493\", \"volume\": \"129\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:45:04.765889+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Rose, Good, Eberly, Day and Paine, JJ., and Yeager, District Judge.\", \"parties\": \"B. F. Gentry, Trustee, appellee, v. Harlan Burge et al., appellants.\", \"head_matter\": \"B. F. Gentry, Trustee, appellee, v. Harlan Burge et al., appellants.\\nFiled July 12, 1935.\\nNo. 29005.\\nOlsen & Olsen, for appellants.\\nWilliam H. Heiss, contra.\\nHeard before Goss, C. J., Rose, Good, Eberly, Day and Paine, JJ., and Yeager, District Judge.\", \"word_count\": \"1714\", \"char_count\": \"9959\", \"text\": \"Yeager, District Judge.\\nThis is an action brought by B. F. Gentry, who is trustee in the matter of Harlan Burge, bankrupt, against Harlan Burge, the bankrupt, Gertrude Burge, his wife, Cleo Burge, his son, Gladys Burge, his son's wife, and Burge Cash Grocery and Produce Company, a corporation, the object and purpose of which is to set aside transfers of real estate and other property by Harlan Burge to his wife, his son, and the defendant corporation, claimed to have been made in fraud of creditors of the said Harlan Burge.\\nAfter a lengthy trial and the introduction of much evidence, the court found in favor of the plaintiff in the fol lowing particulars: That lot 2, block 6, original town of Gering; an undivided interest (apparently an undivided one-third interest) in lot 3, block 6, original town of Gering; all of lots 10, 11 and 12, block 4, original town of Gering; and an undivided one-third interest in a part of the northwest quarter of section 2, township 21 north, range 55 west of the 6th P. M., which lands are, in the decree, described particularly by metes and bounds, was the property, in fact, of Harlan Burge, and that Gertrude Burge held the title to the same only as trustee for the said Harlan Burge;\\nThat the plaintiff recover from Gertrude Burge the sum of $1,450, with interest at 7 per cent, per annum from March 23, 1922, this being the proceeds of a note which she had collected and which the court found was in fact the property of Harlan Burge, but which was taken in the name of Gertrude Burge for the purpose of defrauding creditors, and which is referred to as the Matthews note;:\\nThat Gertrude Burge deliver to the plaintiff 59 shares-of stock in the Burge Cash Grocery and Produce Company,, or in lieu thereof that she pay the value of such stock as-of February 17, 1925, with interest at 7 per cent, per annum from February 17, 1925, for the reason that she was not the true owner, but only trustee for Harlan Burge;\\nThat the plaintiff have and recover from Cleo Burge and Gladys Burge, his wife, a one-half interest in the Burge Cash Grocery and Produce Company, \\\"and such property as may have been placed of record in their names since the commencement of this action.\\\"\\nThe creditor's claim which is the basis of this action was that of one Arthur P. Bressler on account of a deficiency judgment rendered on October 10, 1929, for $5,025.-62, with interest at 10 per cent, per annum from the date of the rendition of judgment. This claim is not disputed by the defendants.\\nFrom the decree, the substantial particulars of which have been set out, the defendants have appealed and ar\\u00e9 seeking a reversal on all points of the decision.\\nThe appellants rely for a reversal on five separate assignments of error. The second, third and fifth must stand or fall with the first and fourth.\\nOn the hearing before the referee in bankruptcy, the defendant Harlan Burge testified at length with reference to business transactions covering a long period of years, and particularly with reference to the properties and business transactions concerning which proper and exhaustive inquiry was made on the trial of the issues in this case. As the first step in the introduction of evidence in this case, the plaintiff offered in evidence exhibit 1, being a transcript of the evidence given by Harlan Burge before the referee in bankruptcy. The defendants objected to the introduction of the exhibit on the ground that it was incompetent, irrelevant and immaterial. No separate objection was made by the defendants. The objection was overruled. No other objection was made to parts or portions of the exhibit. The offer, the objection and the ruling appear on page 6 of the bill of exceptions. An examination of the testimony contained in the exhibit is replete with statements which were in the nature of admissions against interest which were pertinent to this inquiry and therefore admissible without question as to the defendant Harlan Burge.\\nIt is a well-settled rule that admissions of a party against interest made in court or out of court, with reference to and pertinent to the issues being tried, are admissible in evidence against such party. German Nat. Bank v. Leonard, 40 Neb. 676; Lowe v. Vaughan, 48 Neb. 651; Carlson & Hanson v. Holm, 2 Neb. (Unof.) 38; Young v. Kinney, 79 Neb. 421. There are many other authorities to the same effect. There was no error, therefore, in the admission of exhibit 1 as against the defendant Harlan Burge.\\nWe then must inquire as to whether or not the admission of the exhibit was proper as against the other defendants. It is undisputed that Gertrude Burge was the wife of Harlan Burge, Cleo Burge his son, and Gladys Burge his daughter-in-law. If the theory of the plaintiff has been sustained, or, more properly, if the theory of the plaintiff has not been overcome by the evidence of the defendants, the other defendants became the objects of the bounty of Harlan Burge in a manner fraudulently prejudicial to the plaintiff.\\nTo outline the various transactions involved in this case would drag this opinion out almost interminably and would serve no good purpose. The evidence, however, in brief, discloses a large number of transactions in many places over a long period of years. It has been the purpose of the plaintiff to establish that the original source of the funds which went into the properties described in the decree was Harlan Burge, and along the line, when he saw insolvency facing him, he made transfers to his wife and son without consideration, so that when the \\\"crash\\\" came and creditors sought to make recovery his property would be out of reach. It therefore became necessary to examine into all of the transactions.\\nThe law is well settled in this state that, in an action to set aside transfers of property where it is claimed that such transfers were made to members of one's own family for the purpose of defrauding creditors, the burden is on the transferees to show that such transfers were not fraudulent. Christensen v. Smith, 123 Neb. 388; Buckner v. McHugh, 123 Neb. 396; Clermont Cravat Co. v. Eckhard, 122 Neb. 416; Heffley v. Hunger, 54 Neb. 776; Bartlett v. Cheesbrough, 23 Neb. 767.\\nIn the light of the record in this case, it is clearly shown that, with regard to all of the transactions which were involved, there existed both a joint interest and a privity of design as between Harlan Burge and the other defendants. In this light we must then conclude that this evidence taken before the referee in bankruptcy, being in the nature of admissions against interest by the grantor and transferor to the grantees and transferees, was admissible as against all defendants.\\nThe general rule is that the admissions of a party are admissible in evidence against him, but will not affect others unless a joint interest or privity of design between them is shown to exist. Dawson v. Hall, 2 Mich. 390; Cunningham v. Fuller, 35 Neb. 58. These authorities contain the rule of law which we think should apply to this situation. This conclusion disposes of error number one.\\nUnder the fourth assignment of error it is contended' that the judgment is contrary to the evidence. The evidence on the important point in controversy is irreconcilable and very conflicting. The conflict, however, in the main has not been as to witnesses produced by plaintiff as against witnesses by the defendants. The great conflict is furnished by the testimony of the defendant Harlan Burge, given before the 'referee in bankruptcy and the testimony of the same defendant and the other defendants given orally in this case. The trial judge had before him all the evidence and all the witnesses and had the opportunity to make observations and draw conclusions denied of necessity and of course to this court. In that light he had to weigh all the evidence and decide in accordance with what appeared to carry the greater weight, or, as in this case, to decide in favor of plaintiff unless it appeared that the evidence preponderated in favor of the defendants. We cannot, from an examination of the record, say that he erred. This is a trial de novo in this court, and \\\"While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying.\\\" Johnson v. Erickson, 110 Neb. 511. See Yardum v. Evans, 120 Neb. 699. An examination of the record, therefore, leads to the conclusion that, except as to some minor aspects, the decree is right and should be affirmed. In that portion of the decree where it recites \\\"an undivided interest in lot 3, block 6, original town of Gering,\\\" the wording should be corrected to read \\\"an undivided one-third interest in lot 3, block 6, original town of Gering.\\\" The language, \\\"and such property as may have been placed of record in their names since the commencement of this action,\\\" appearing in paragraph \\\"D\\\" of the decree, should be eliminated and deleted, since it is apparent that this language would attach the decree to any 'property procured by the named parties coming from any source and it has no direct application to any particular property or the proceeds from any property involved in this litigation.\\nIt is therefore the opinion of this court and it is ordered that the decree be amended and corrected as indicated herein and that as amended and corrected the decision of the district court be and is\\nAffirmed as modified.\"}"
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+"{\"id\": \"238991\", \"name\": \"State of Nebraska, appellee, v. Michael T. Jackson, appellant\", \"name_abbreviation\": \"State v. Jackson\", \"decision_date\": \"1998-07-17\", \"docket_number\": \"No. S-97-522\", \"first_page\": \"68\", \"last_page\": 85, \"citations\": \"255 Neb. 68\", \"volume\": \"255\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:01:19.780037+00:00\", \"provenance\": \"CAP\", \"judges\": \"Caporale, Wright, Connolly, Gerrard, Stephan, and McCormack, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Michael T. Jackson, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Michael T. Jackson, appellant.\\n582 N.W.2d 317\\nFiled July 17, 1998.\\nNo. S-97-522.\\nJames C. Hart, Jr., for appellant.\\nDon Stenberg, Attorney General, and Kimberly A. Klein for appellee.\\nCaporale, Wright, Connolly, Gerrard, Stephan, and McCormack, JJ.\", \"word_count\": \"5454\", \"char_count\": \"33079\", \"text\": \"McCormack, J.\\nThis case arises out of the shooting of two people in Omaha, Nebraska, for which appellant, Michael T. Jackson, was found guilty of first degree murder, attempted first degree murder, and two counts of use of a weapon to commit a felony. We review this case on direct appeal due to the imposition of a life sentence by a three-judge sentencing panel.\\nI. BACKGROUND\\nDionne Brewer, Jason Thornton, and Jackson were in Thornton's Chevrolet Blazer on February 4, 1996. Thornton picked up Brewer earlier in the day and went to pick up Jackson at his residence. Brewer had seen Jackson before and knew that his name was Michael but did not know his last name.\\nUpon picking up Jackson, the group had planned to fly to Minneapolis, Minnesota, to retrieve some cocaine, and Brewer was then to drive back to Omaha with it. Jackson and Thornton had agreed that Jackson owed Thornton approximately $11,500 for the purchase of a kilo of cocaine. Jackson did not want to fly with that much cash for fear it would be confiscated and encouraged the group to drive to Minneapolis. Thornton then told Jackson to forget the deal.\\nAfter dropping Jackson off, Thornton and Brewer discussed driving up and back to retrieve the drugs from Minneapolis. Thornton then called Jackson to inform him that they had changed their minds and were going to drive to Minneapolis. Thornton and Brewer packed some clothes, stopped at a store, and then picked up Jackson again. Jackson entered the Blazer with a black bag and announced that he had smoked some marijuana and was high. The three then went to look for a rental car that Jackson had purportedly rented for the drive to Minneapolis.\\nThe group stopped at Brewer's cousin's house, where Jackson said his girl friend lived; however, she was not there. Brewer began to get irritated with Jackson for wasting time. Jackson claimed that he knew where he was going and that the three should turn onto Redmond Street, where the car was parked. Thornton stopped near a car on the street and began to get out of the Blazer when Brewer heard shots being fired. Brewer turned to see Jackson in the back seat, leaning forward, firing bullets into Thornton.\\nBrewer leapt from the vehicle and began to run' down the street, screaming. Jackson began to pursue her, firing several shots at her. After being struck by a bullet, Brewer fell to the ground, still screaming for help. Jackson came over to Brewer while she still lay on the ground and shot her again. Brewer fell silent after the shot grazed her face. Jackson shot her one more time in the shoulder before leaving the scene. Brewer played dead for a while longer before going to one of the homes along the street to call police. When the police interviewed Brewer, she identified the shooter as someone whose last name she did not know, but whose first name was Mike, and who was wearing blue jeans, a dark stocking cap, and a tan jacket. Brewer told the officers that Jackson lived in a blue, two-story house with a white trim fence, which house was located on the north side of Saratoga Street, one block west of Fontenelle Boulevard and the second house from the end of the block.\\nElla R. Iler, in front of whose home the shooting took place, heard what she thought was a truck backfiring, looked out her kitchen window, and saw a male standing over a person lying in the street, shooting that person. She said she heard three shots. Iler said the shooter had on a dark knit hat, a light tan or beige coat, and dark trousers.\\nOfficer Bruce M. Ferrell, after interviewing Brewer at University Hospital, drove to the area of 43d and Saratoga and identified the house from Brewer's description.\\nDemeteria Gardner testified that she had been dating Jackson at the time of the shooting and that Jackson had lived at his mother's house at 4344 Saratoga Street in Omaha. She further testified that she owned a green Plymouth Sundance, which Jackson was free to use. Gardner testified that Jackson borrowed the car on the night in question. She stated that he later returned and stayed for approximately IV2 hours before leaving. The police arrived a few hours later and asked Gardner's permission to search the Sundance. She consented and signed a form indicating such.\\nOnce the house was located, Officer William Dussetschleger of the Omaha Police Division was assigned to maintain surveillance on the house at 4344 Saratoga Street until a warrant could be secured. Once the officers arrived with the warrant, Dussetschleger was instructed to search the Sundance that was parked in a driveway behind the house. Dussetschleger was instructed to particularly look for weapons and clothing, especially a tan jacket, tan shirt, and blue jeans. Upon opening the hatch area of the car, he found a black gym bag, inside of which were a tan coat, a pair of jeans, and tan workboots. Dussetschleger then got two other officers to assist in the search of the car. When the coat was checked more closely, red smudges were found on it.\\nFerrell testified that he and other officers from the Omaha Police Division arrived at 4344 Saratoga Street, were admitted into the house by a woman, and then encountered Jackson. Jackson was taken for questioning to central police headquarters while a search warrant was obtained. Ferrell stated that a number of items were seized with the warrant, including a blue stocking cap, some rounds of ammunition for a handgun, and a green handgun pouch. Ferrell also took several of the items seized to the University of Nebraska Medical Center (UNMC) for forensic testing.\\nDr. Blaine Roffman, the forensic pathologist who conducted the autopsy on Thornton, testified that Thornton died of two gunshot wounds to the neck, one of which exited the face, causing multiple fractures. One of the bullets severed the brain stem, which resulted in Thornton's quick death.\\nBarb McCue, a medical technologist at UNMC, and Dr. James Wisecarver, a pathologist at UNMC, described the type of deoxyribonucleic acid (DNA) analysis testing used by UNMC to provide help in solving crimes. McCue works under two directors, Dr. Ronald J. Rubocki and Wisecarver. She is certified by the College of American Pathologists and has been working with polymerase chain reaction (PCR) testing methods at UNMC since 1992. McCue identified a written copy of the lab's protocol and stated it described the procedure that the lab uses each time it performs DNA testing. She described the science that underlies the DNA testing, related the procedures used by the lab, and stated that she followed those procedures this time and each and every time a sample is tested for DNA. McCue gets the raw data and then gives it to her supervisor, Rubocki, who then reviews the data, checks the numbers again, and writes the report. The results obtained by McCue, exhibit 66, were received without objection. The protocol used, exhibit 5, was offered; an objection was made as to hearsay, not foundation; and the protocol was received into evidence. McCue then discussed the tests run in this particular case and concluded that the known blood sample from Thornton matched as a possible source for the blood on the jacket, shirt, and jeans seized from the bag found inside the Sundance.\\nAlso testifying was Wisecarver, who has a Ph.D. degree from Creighton University in the field of physiology, has an M.D. degree from UNMC, did a residency in combined anatomic and clinical pathology, and is board certified in the field of anatomic and clinical pathology.\\nWisecarver testified that he was involved with the creation of the testing protocols at UNMC. Beginning with the manuals that accompanied the testing equipment, Wisecarver made minor adjustments, making the process easier for UNMC's staff to use and allowing for reproducible results. Wisecarver further testified that the specific protocol used by UNMC to conduct a particular method of PCR testing, called short tandem repeat (PCR STR), and PCR DNA testing in general were accepted in the relevant scientific community in the United States. Wisecarver then described his analyses in this case, the results of which eliminated Brewer as a source of the bloodstains upon Jackson's clothing; however, the reference sample from Thornton matched the samples taken from Jackson's clothing. Wisecarver then performed a statistical analysis of his findings, using the product rule and a computer database. The product rule is one technique used to determine the probability of finding a match between a DNA sample from a suspect and DNA material found in a body fluid sample recovered from a crime scene. See State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997). Wisecarver testified that this database exceeded the requirements of an empirical study performed by population geneticists. He testified that his statistical analysis provided that the odds of an African-American person, selected at random, possessing the same DNA markers would be 1.02 billion to 1.\\nDuring the testimony of Roffman, Jackson objected to the admission of certain autopsy photographs depicting the condition of Thornton's body. The trial court overruled this objection and allowed the photographs into evidence.\\nAt the end of the State's case in chief, Jackson moved for an order dismissing the criminal information based upon the failure of the State to prove the elements of first degree murder, namely, that the State had failed to prove premeditation. This motion was overruled as well.\\nThe defense presented no evidence, and the jury found Jackson guilty on all counts. Following the verdict, Jackson filed a motion for new trial. Jackson put on evidence in the form of testimony from two witnesses who alleged that a newspaper article regarding the trial was shown to a juror during a recess. Jackson's mother, Gearlean Jackson, testified that she saw one of the victim's family members show a newspaper article regarding Jackson and the trial to an older African-American juror who was having a cigarette during a recess. Jackson's aunt, Ruth Howard, corroborated the testimony of Gearlean Jackson. Gearlean Jackson could not testify as to what newspa per was shown to the juror. Howard could not testify as to what newspaper was shown to the juror but stated that she saw the juror read the newspaper. The State called Johnny Marks, Jr., one of two African-American males on the jury and the man identified by the defense as the juror spoken to about the newspaper. Marks testified that he did not read any articles about the case during the trial, that he always stayed in the jury room during the morning recesses, and that he did not smoke. The trial court overruled this motion as well.\\nA three-judge panel sentenced Jackson to life imprisonment on count I (first degree murder), 25 years' imprisonment on count III (attempted murder in the first degree), and 20 years' imprisonment each on counts II and IV (use of a deadly weapon to commit a felony). The sentence on count II was to run consecutively to that on count I, with the sentence on count IV to run consecutively to that on count III, and the sentences on counts III and IV to run concurrently to those on counts I and II.\\nII. ASSIGNMENTS OF ERROR\\nJackson assigns that the trial court erred in denying Jackson's (1) motion to suppress evidence, (2) motion in limine which sought to suppress all testimony concerning DNA statistical results and testing, (3) objection during trial to the admission of certain photographs depicting the condition of the victim's body, (4) motion to dismiss made at the close of the State's case in chief, and (5) motion for new trial.\\nIII. STANDARD OF REVIEW\\nOn a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Arnold, 253 Neb. 789, 572 N.W.2d 74 (1998).\\nThe exercise of judicial discretion is implicit in determinations of relevancy, and the trial court's decision will not be reversed absent an abuse of discretion. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998). The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska rules of evidence commit the evidentiary question at issue to the discretion of the trial court. State v. Jacob, supra. Judicial discretion is a factor involved in admissibility of evidence under Neb. Evid. R. 402 and 403, Neb. Rev. Stat. \\u00a7 27-402 and 27-403 (Reissue 1995). State v. Jacob, supra.\\nIn determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that reasonably can be drawn from the evidence, and every controverted fact resolved in its favor. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997); State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997); State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994).\\nIn a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Jacob, supra; State v. Kula, supra; State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996); State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).\\nIV. ANALYSIS\\n1. Motion To Suppress Evidence Seized\\nJackson filed a motion to suppress any evidence seized from the house at 4344 Saratoga Street and the Sundance due to his allegation that the affidavit providing the basis for the search warrant contained insufficient evidence to provide the magistrate with probable cause to issue the warrant. The trial court denied the motion to suppress. Jackson assigns said denial as error. As support for this assignment, Jackson offers only the proposition that plain error may be found on appeal when an error is plainly evident on the record and which prejudicially affects a litigant's substantial right, and, if uncorrected, would cause a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process. State v. Keller, 240 Neb. 566, 483 N.W.2d 126 (1992); Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991); State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991).\\nWe have repeatedly held that in determining the sufficiency of an affidavit to show probable cause for the issuance of a search warrant, an appellate court looks to the totality of the circumstances. This means that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of per sons supplying hearsay information, indicate there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient. State v. Swift, 251 Neb. 204, 556 N.W.2d 243 (1996); State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994).\\nThe affidavit is sworn to by Ferrell and signed by Douglas County Judge Lyn V. White. Ferrell had interviewed Brewer following the shooting and had taken down information Brewer knew regarding the shooter, known to her as \\\"Mike.\\\" Brewer described the general location and description of the house, from which the police located the house at 4344 Saratoga Street. Brewer's information about the location of the house was the result of her and Thornton's having earlier dropped off Jackson at this address. Brewer had also described to Ferrell the clothes worn by the shooter who had killed Thornton and shot her. Prior to the issuance of the warrant, officers had already been to 4344 Saratoga Street, and Jackson had consented to go with them to central police headquarters. While at 4344 Saratoga Street, officers had seen clothing that could match the clothes described by Brewer, specifically, the dark blue hat. The above information was contained in the affidavit of Ferrell in his application for the warrant. It clearly provides probable cause for the search of the home at 4344 Saratoga Street. The search of the Sundance was pursuant to a written consent of the owner of the vehicle.\\nHowever, a question was raised at argument regarding the findings of fact of the trial court in ruling on the motion to suppress. In State v. Osborn, 250 Neb. 57, 67, 547 N.W.2d 139, 145 (1996), this court held that \\\"[h]enceforth, district courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. The degree of specificity required will vary, of course, from case to case.\\\" In the case at bar, the motion to suppress merely named the places which were searched and requested that items taken pursuant to the warrant be suppressed because \\\"[t]he affidavit accompanying the request for the search warrant did not contain sufficient information to establish probable cause to believe a crime or evidence of a crime would be found at the Defendant's residence.\\\" In the order denying the motion, the trial court stated, \\\"[u]pon consideration, the Court finds that the affidavit and application for issuance of a search warrant contained sufficient facts from sources that under the circumstances were reliable so as to constitute the required probable cause for the issuance of the warrant.\\\" Jackson's motion to suppress asserts only that the affidavit was infirm. The court's finding that the affidavit provides sufficient probable cause to issue a warrant is a valid finding of fact under our holding in State v. Osborn, supra, and so does not preclude effective review by this court. Our review reveals no error in denying Jackson's motion to suppress evidence. For the above reasons, Jackson's first assigned error is without merit.\\n2. Admission of DNA Evidence\\nJackson filed a motion in limine to prevent the admission of any evidence regarding the DNA evidence linking the clothes found in Gardner's car to Thornton's blood. At the hearing on the motion in limine, testimony was given by Wisecarver and Rubocki. McCue did not testify. Wisecarver and Rubocki testified as to the procedures used by UNMC to retrieve, test, analyze, and interpret DNA evidence from crime scenes. The trial court determined that the State had met its burden of establishing all the required elements for admissibility of DNA testing results as mandated by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994). McCue and Wisecarver testified at trial as to the PCR STR DNA evidence. Jackson again objected to the admission of DNA evidence at trial, and the objection was overruled by the trial court.\\nTo determine whether DNA evidence is admissible, the trial court is to decide preliminarily, outside the presence of the jury, on the basis of the evidence before it (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields; (2) whether the type of DNA testing used in the case under consideration is generally accepted by the relevant scientific community, including the accompanying statistical analysis; (3) whether the testing protocol used in the case under consideration is generally accepted as reliable if performed properly; (4) whether the test conducted properly followed the protocol; (5) whether DNA analysis evidence is more probative than prejudicial under \\u00a7 27-403; and (6) whether statistical probability evidence interpreting the DNA analysis results is more probative than prejudicial. See, State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997); State v. Carter, supra. Jackson argues that the DNA evidence in the instant case was not admissible because PCR STR DNA analysis is not generally accepted in the scientific community, there was no evidence at the Frye hearing that the test properly followed the laboratory's protocol, the probative value of the evidence was outweighed by its prejudicial effect, and the statistical analysis used was not generally accepted in the scientific community.\\n(a) PCR STR DNA Testing Generally Accepted\\nIn response to Jackson's motion in limine, the State called Rubocki. Rubocki is a graduate-level instructor who is the author of numerous publications in the areas of DNA studies and histocompatibility of human genetics for purposes of human organ transplants. He testified that UNMC has been doing DNA testing for transplant purposes since 1991. Following a review of his curriculum vitae, the following dialog was had:\\nQ: [by the State] And because of your position and with your educational background and with \\u2014 after attending the different conferences that you have with other scientists who are involved \\u2014 and other companies that are involved in this particular testing process, and after having reviewed the literature, scientific journals that have to do with this particular testing process, do you have an opinion as to whether this process, itself, is accepted within the realm of the scientific community?\\nA: Yes.\\nMR. POEPSEL: Judge, object at this time. Lack of foundation\\nTHE COURT: Overruled.\\nTHE WITNESS: Yes, it's \\u2014\\nQ: (BY MR. KLEINE) What is that opinion?\\nA: That it's generally accepted without any problem by everybody who has a knowledge of what's going on in the field. I have yet to talk to anybody who doesn't think PCR is reliable, accurate, precise.\\nRubocki's testimony also clearly indicated that the STR typing test is generally accepted in the scientific community.\\nQ: This particular method of PCR testing called STR, is that particular methodology generally accepted in the realm of the scientific community?\\nA: Yes. That's been around several years now, and there is nothing unique about PCR STR versus any PCR.\\nBased on this evidence, we can only conclude that the trial court was correct in determining that the PCR STR DNA test used in the instant case was generally accepted within the scientific community. See State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998) (discussing admissibility of PCR DNA evidence).\\n(b) Foundation and Laboratory Protocol\\nAs a foundational matter, DNA evidence is not admissible unless the laboratory's testing protocol was properly followed. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992). The technician, McCue, who actually performed the test in this case, did not testify at the Frye hearing. This procedure is acceptable only if the person who does testify has some personal knowledge that the protocol was actually followed, i.e., the witness observed the test being performed. Neb. Evid. R. 602, Neb. Rev. Stat. \\u00a7 27-602 (Reissue 1995), specifically states that \\\"[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.\\\"\\nIn this case, neither Rubocki nor Wisecarver established that he had personal knowledge as to whether McCue, the technician who performed the test, had actually followed the laboratory's protocol. When asked whether he had any personal knowledge as to whether McCue followed every step in the protocol, Wisecarver replied, \\\"Other than I trust her.\\\" The trial court apparently believed that Rubocki's testimony concerning a \\\"checklist\\\" initialed by McCue was sufficient to indicate that Rubocki had personal knowledge that McCue followed protocol. However, the following colloquy from the record indicates to the contrary:\\nQ. Do you have any personal knowledge as to whether Miss McCue followed correct laboratory procedures?\\nA. She follows our protocols.\\nQ. Okay. But do you have any personal knowledge that she followed correct procedures in this case?\\nA. She follows them in every case. Those are the protocols.\\nQ. Okay. How do you know she followed correct procedures in this case? Is there some sort of a checklist that she went through and she presented to you?\\nA. Yeah. We have sheets here that you initial. Extraction DNA, she initialed it. It means she did the protocol for extracting DNA.\\nAnother one would be DNA amplification. So she initialed that. She did a DNA extraction procedure, amplification procedure, and additional categories here like running gels, the different kinds of gels. So when she signed it off, basically there is a checklist so we know that she did these protocols for those particular steps.\\nThat McCue initialed a checklist saying she performed certain procedures does not show that she followed the proper protocol when performing those procedures. Rubocki's testimony that McCue's initials \\\"means she did the protocol for extracting DNA\\\" is really a restatement of Rubocki's previous testimony that McCue \\\"follows our protocols.\\\" In other words, because Rubocki assumes that McCue follows the protocol, her indication by checklist that she performed certain procedures would also satisfy Rubocki, or \\\"mean\\\" to Rubocki, that she also followed the correct protocol when performing the initialed procedures. The \\\"checklist\\\" was not received in evidence, is certainly not the best evidence, and was testified to only after significant prompting.\\nWe held in State v. Houser, 241 Neb. 525, 546, 490 N.W.2d 168, 182 (1992), that \\\"proving that [the testing laboratory] followed its own protocol when testing the samples . is part of the State's burden for foundation of the test results.\\\" Because the State failed to meet that burden at the Frye hearing in the instant case, the trial court's preliminary conclusion that the protocol was followed in the instant case was erroneous.\\nHowever, we believe the error was harmless beyond a reasonable doubt because McCue was called at trial and her trial testimony clearly indicates that she correctly followed the protocol.\\nIt is true that this court held in Houser that \\\"in connection with DNA evidence, the trial court is to preliminarily decide [the admissibility of DNA evidence] outside the presence of the jury . . . .\\\" (Emphasis supplied.) 241 Neb. at 549-50, 490 N.W.2d at 184. The admissibility was to be so determined to avoid presenting improper evidence to the jury. Houser, supra. See, also, Nev. Evid. R. 103(3), Neb. Rev. Stat. \\u00a7 27-103(3) (Reissue 1995). We also indicated that \\\"the failure to grant a hearing outside the jury's presence as to the admissibility of the evidence\\\" was not harmless error. Houser, 241 Neb. at 544, 490 N.W.2d at 181. In the instant case, however, a hearing was granted, and harmless error review is appropriate.\\nJackson does not give any argument as to why the DNA evidence was more prejudicial than probative, so we decline to address the issue. Finally, as for Jackson's argument regarding the statistical evidence introduced in the instant case, which was calculated according to the product rule, our holding in State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997), is dispositive.\\nThis assignment of error is without merit.\\n3. Admission of Photographs\\nJackson further assigns error to the admission of certain photographs depicting the body of Thornton during the autopsy. Jackson objected to the admission of the photographs at trial because he alleged they were gruesome and their potential prejudice outweighed their probative value. The photographs objected to were exhibits 55, 56, and 57, which were taken after the body had been cleansed, and are autopsy photographs showing entry and exit wounds of the bullets. Oddly enough, Jackson did not make a \\u00a7 27-403 objection to far more graphic crime scene photographs.\\nIn dealing with autopsy photos in murder trials, we have clearly held:\\nIn a homicide case, photographs of the victim, upon proper foundation, may be received in evidence for purposes of identification, to show the condition of the body, to show the nature and extent of wounds or injuries, and to establish malice or intent. . . .\\nThe autopsy photographs [of a murder victim's body] were admissible] into evidence to establish the manner in which the victim was killed.\\nState v. McBride, 250 Neb. 636, 660, 550 N.W.2d 659, 676 (1996). In the present case, autopsy photographs of the victim were admitted to show the extent of Thornton's wounds and the manner in which they resulted in his death. The photographs were not inordinately gruesome, nor did their potential prejudice substantially outweigh their probative value in detailing the nature of the victim's injuries. The trial court clearly did not abuse its discretion in allowing the autopsy photographs into evidence.\\n4. Denial of Jackson's Motion to Dismiss\\nFollowing the close of the State's case in chief, Jackson moved for a dismissal based upon his allegation that the State's evidence failed to prove that Jackson committed a premeditated act. Jackson cites no authority to support his contention that the State failed to establish premeditation.\\nIn denying the motion to dismiss, the trial court stated:\\n[Considering that there is no fixed amount of time necessary to form the premeditation in the mind of the perpetrator and even the evidence that he obviously had pointed the gun at the back of the head of the exiting victim and fired twice would frankly, in and of itself, be sufficient for a jury to find premeditation.\\nThe ruling of the trial court clearly complies with our holding in State v. McBride, 250 Neb. at 662, 550 N.W.2d at 677, wherein we stated, \\\"The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed.\\\" As the evidence indicated Jackson's clear intent to use a deadly weapon in causing Thornton's injuries, there was no abuse of discretion in refusing to direct a verdict in Jackson's favor.\\n5. Motion for New Trial\\nFollowing the jury's verdict finding Jackson guilty and prior to the imposition of his sentence, Jackson filed a motion for new trial. The basis for this motion was revealed by the testimony of Gearlean Jackson and Howard, who claimed that Marks had improperly been shown by a member of the victim's family a newspaper article which related to the trial. After taking the testimony of Marks, who denied any improper communication and denied reading the article, the trial court denied Jackson's motion for new trial.\\nWe have previously held that in a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993). However, we have also recently held that a criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial. State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997). In the present case, the evidence presented by Jackson cannot surmount the testimony of Marks that he did not read the article or even leave the jury room at the time of the alleged misconduct. As such, the testimony falls short of showing misconduct by a preponderance of the evidence. With this in mind, we need not concern ourselves with issues of burden shifting because no misconduct has been shown under the first part of the Anderson test.\\nOur holding in Anderson also specifically deals with alleged prejudice arising from newspaper articles allegedly read by jurors. In order for a verdict to be set aside because of the prejudicial effect of newspaper accounts on jurors, there must be evidence presented that the jurors read newspaper accounts and that the accounts were unfair or prejudicial to the defendant. State v. Anderson, supra. As Marks specifically denied reading the article in question, and as Jackson's family could not specifically relate whether Marks had read the article concerning Jackson, the defense showed neither misconduct nor prejudice. As such, the trial court did not abuse its discretion in denying Jackson's motion for new trial.\\nV. CONCLUSION\\nIn light of the foregoing, the jury's guilty verdict and the life sentence imposed by the three-judge panel are affirmed. Although the State failed to meet its burden at the Frye hearing, the trial court's erroneous preliminary conclusion that the protocol was followed is determined to be harmless error beyond a reasonable doubt because McCue was called at trial and her testimony clearly indicates that she correctly followed the protocol in regard to the DNA testing. We find no error in the admission of the autopsy photographs. The trial court properly decided the issue of premeditation in denying Jackson's motion to dismiss. Finally, we find no clear error in the trial court's denial of Jackson's motion for new trial. Finding no error, we affirm the verdict of the jury and the sentence of the three-judge panel.\\nAffirmed.\\nWhite, C.J., not participating.\"}"
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+"{\"id\": \"2462282\", \"name\": \"Delbert R. Gifford, appellee, v. Ag Lime, Sand and Gravel Company, a corporation, et al., appellants\", \"name_abbreviation\": \"Gifford v. Ag Lime, Sand & Gravel Co.\", \"decision_date\": \"1971-05-28\", \"docket_number\": \"No. 37819\", \"first_page\": \"57\", \"last_page\": 64, \"citations\": \"187 Neb. 57\", \"volume\": \"187\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T16:59:44.757844+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"parties\": \"Delbert R. Gifford, appellee, v. Ag Lime, Sand and Gravel Company, a corporation, et al., appellants.\", \"head_matter\": \"Delbert R. Gifford, appellee, v. Ag Lime, Sand and Gravel Company, a corporation, et al., appellants.\\n187 N. W. 2d 285\\nFiled May 28, 1971.\\nNo. 37819.\\nLearner & Galvin and Wetz & Cosgrove, for appellants.\\nRyan & Scoville and P. F. Verzani, for appellee.\\nHeard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"word_count\": \"2154\", \"char_count\": \"12474\", \"text\": \"McCown, J.\\nThe plaintiff recovered a workmen's compensation award in the one-judge workmen's compensation court. The defendants appealed directly to the district court. The district court on trial de novo found in favor of the plaintiff and entered judgment awarding workmen's compensation benefits.\\nThe plaintiff, Delbert R. Gifford, was first employed by the defendant, Ag Lime, Sand and Gravel Company, in 1954. At the time of the injury here, he was employed as a mechanic and heavy equipment operator. On February 10, 1967, the plaintiff was repairing a piece of heavy equipment. He was alone in the defendant's workshop. His testimony was that he lifted a gear weighing between 90 and 100 pounds to place it in the final drive housing of the caterpillar unit. As he lifted the gear he felt a sharp pain in his back at about the belt line. He dropped the gear on the floor and sat down for about 30 minutes. The rest of the day he cleaned up and did light work, but he never completed the work of replacing the gear. When he went home after work, he lay down on the floor and did not eat anything that evening. His wife testified that he complained of his back that night and corroborated his testimony as to his conduct during the evening. He advised his employer of the injury sometime during the same week. He continued to work, but did only light work thereafter and operated only rubber-tired equipment. The testimony of plaintiff and his wife as to all of the foregoing facts was not contradicted by any other witness.\\nThe plaintiff did not seek medical attention during February and March of 1967, but testified that the pain in his back was getting worse and had started going down a leg. Sometime in April 1967, he went to see Dr. Carney, a chiropractor in Ponca, Nebraska. He saw him once or twice for his back. On April 20, 1967, he went to the Molstad Chiropractic Clinic in Sioux City, Iowa. He had seven or eight treatments to his back there. On May 8, 1967, he went to Dr. Faithe, an M.D. in Ponca, Nebraska. Dr. Faithe thought he had a disc problem and does not recall that he identified the back injury with any specific incident. She suggested that he see a specialist. On May 23, 1967, he went to Dr. Browne, a neurosurgeon in Omaha, Nebraska. The history given to Dr. Browne was that the onset was approximately six weeks before and had been gradual and progressive since. Dr. Browne made no inquiry as to any previous trauma and thought he possibly had a lumbar disc syndrome. He recommended that if his back did not improve in a week or two, the plaintiff should return. On June 16, 1967, plaintiff consulted Dr. Blume, a neurosurgeon in Sioux City, Iowa. The history given to Dr. Blume included the lifting incident on February 10, and also ruled out any previous back pain or injury. The history also included the consultation with Dr. Browne and his diagnosis and recommendation for treatment. Dr. Blume's initial diagnosis was a ruptured disc. Plaintiff was hospitalized for a myelogram on June 23rd, which confirmed the diagnosis. On July 2, 1967, Dr. Blume performed a partial laminectomy and the ruptured discs were removed. Dr. Blume testified that the injury to the plaintiff's lumbar spine was caused by the lifting accident of February 10, 1967. No doctor directly contradicted that opinion and both doctors who testified on the issue were in agreement that the plaintiff had a permanent injury.\\nDefendant's challenge to the judgment rests on the contention that the evidence was insufficient and that the plaintiff's testimony was uncertain, inconsistent, contradictory, and differed from previous testimony. Concededly, the plaintiff's memory for detail was poor. We cannot say that his testimony was materially contradictory. Its acceptance rests on the credibility of the plaintiff as a witness. The fact that the plaintiff was alone at the time the injury occurred does not wipe out his own testimony nor the evidence of objective symptoms of injury. The requirement that objective symptoms of an injury be produced \\\"at the time\\\" of the accident is satisfied if the symptoms manifest themselves according to the natural course of such matters without any independent intervening cause being shown. The Workmen's Compensation Act does not require that the objective symptoms of an injury produced at the time of the accident be observed by others or that their existence be proved by independent testimony. Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N. W. 2d 547.\\nThe vital issue here involves the nature and posture of appellate review in this court in a workmen's compensation case. Some history is appropriate. Since 1935, the workmen's compensation law of Nebraska has provided for an initial hearing before a single judge of the Nebraska Workmen's Compensation Court. An appeal from that judgment may be taken and rehearing had either to the Nebraska Workmen's Compensation Court sitting en banc or to the district court. In either case, the rehearing is de novo and a record is made. If the initial appeal from the one-judge compensation court hearing is taken to the workmen's compensation court en banc, an additional appeal may be taken from that court to the district court. That appeal is based on the record made in the workmen's compensation court and no new evidence is taken in the district court. An appeal may be taken from the district court to this court, whichever route may have been followed previously.\\nIn an appeal from the workmen's compensation court en banc to the district court, section 48-184, R. R. S. 1943, and its predecessor statutes have provided: \\\" that a judgment, order, or award of the Nebraska Workmen's Compensation Court shall be set aside only upon the grounds that (1) the court acted without or in excess of its powers, (2) the order or award was procured by fraud, (3) the findings of fact by the court are not supported by the record, or (4) the findings of fact by the court do not support the order or award.\\\" That language has remained unchanged since 1935.\\nSection 48-185, R. R. S. 1943, and its predecessors since 1935, have provided for appeals from the district court to this court in workmen's compensation cases. The relevant portions of Laws 1935, c. 57, \\u00a7 13, p. 195, originally provided: \\\"Any appeal from the judgment of the district court shall be prosecuted in accordance with the general laws of the state regulating appeals in actions at law a judgment, order, or award of the district court may be modified or set aside only upon the following grounds: (1) That the court acted without or in excess of its powers. (2) That the judgment, order or award was procured by fraud. (3) That the findings of fact are not conclusively supported by the evidence as disclosed by the record, and if so found, the cause shall be considered de novo upon the record. (4) That the findings of fact by the court do not support the order or award.\\\" (Emphasis ours.) What is contained in both sections 48-184 and 48-185, R. R. S. 1943, was originally a part of the same section. The sections were not separated until 1943.\\nThis court has consistently held that where the initial rehearing is had before the compensation court en banc, then the review in the district court under section 48-184, R: R. S'.'1943, is in the nature of an-error proceed ing and is limited in scope. See, Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N. W. 2d 212; Rapp v. Hale, 170 Neb. 620, 103 N. W. 2d 851.\\nUnder the provisions of section 48-185, R. S. 1943, in its original form, since few findings of fact could be said to be conclusively supported, we said: \\\"As a practical proposition our review here is de novo upon the record.\\\" Werner v. Nebraska Power Co., 149 Neb. 408, 31 N. W. 2d 315 (1948). From that point on, in decisions-too numerous to cite, we have stated that a workmen's compensation case in this court is considered de novo upon the record.\\nIn 1953, section 48-185, R. S. 1943, was amended by removing the single word \\\"conclusively.\\\" The committee statement on L.B. 85 of the 1953 Legislature was: \\\"LB 85 provides that the word 'conclusively' shall be stricken. The committee unanimously agreed that this word shall be stricken from the Section 48-185 because it was unfair to the person appealing a case from the District Court to Supreme Court. That the amount of evidence needed in Supreme Court should not be greater than what is necessary in the District Court, as the Supreme Court decides their cases on the same record that the District Court.\\n\\\"The committee also felt that it was unfair to the District Court as well as the Supreme Court in that by allowing the word conclusively to remain it changes the measure of evidence the District Court would decide the case on. The four rules set out by Section 48-184, which the District Court is guided to decide the matter and section 48-185 which the Supreme Court uses are and should be practically the same and it would be if the word conclusively was stricken as recommended by the committee.\\\"\\nThis important change in section 48-185, R. R. S. 1943, adopted by the Legislature in 1953, has never been acknowledged or discussed by this court. It was apparently not raised. In 1960, this court once more repeated the language that: \\\"On an appeal from the district court to the Supreme Court in a workmen's compensation case, the case shall be considered de novo except where the findings of fact are conclusively supported by the evidence as disclosed by the record.\\\" Rapp v. Hale, 170 Neb. 620, 103 N. W. 2d 851. (Emphasis ours.)\\nOn the basis of that case, we continued to state that a workmen's compensation case in this court is considered de novo. Even under that method of consideration, this court developed the rule that if conflicting evidence at the final trial level is resolved by the trial court according to the demeanor and credibility of witnesses, the resulting findings will be considered correct on de novo review in this court. See, Meadows v. Skinner Manufacturing Co., 178 Neb. 856, 136 N. W. 2d 184; Cardenas v. Peterson Bean Co., 180 Neb. 605, 144 N. W. 2d 154.\\nWe think it clear that a reasonable interpretation of section 48-185, R. R. S. 1943, as amended in 1953, is that the standards for modifying or setting aside a judgment or award, and in measuring the findings of fact by the trial court in a workmen's compensation case, are to be the same whether the review is by the district court or by this court. Appellate review in this court requires consideration and review of the record in all cases. That consideration must ordinarily take account of the determination of the trial court or jury as to the factual issues. This is particularly true in dealing with appeals; which are in the nature of actions at law. De novo review implies an independent determination of the facts without restriction by any previous factual determinations made in the lower court. While the distinction may be technical, it is nevertheless a vital one. Appellate courts do not ordinarily determine factual issues de novo except when required by statute.\\nWe therefore hold that on appeal of a workmen's compensation case to the Supreme Court, if there is reasonable competent evidence to support the findings of fact in the trial court, the judgment, order, or award will not be modified or set aside for insufficiency of the evidence. We also hold that upon appellate review of a workmen's compensation case in the Supreme Court, the cause will be considered de novo only where the findings of fact are not supported by the evidence as disclosed by the record. To the extent that the holdings of Rapp v. Hale, 170 Neb. 620, 103 N. W. 2d 851, and subsequent cases on these issues are in conflict, they are overruled.\\nThe findings of fact of the trial court in this case are supported by the record whether the consideration be d'e novo or by the statutory standard required under section 48-185, R. R. S. 1943, as amended. The judgment is affirmed. The plaintiff's attorneys are allowed a fee of $750 for their services in this court.\\nAffirmed.\"}"
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+"{\"id\": \"2511448\", \"name\": \"Edna Tuttle, appellant, v. Bert A. Wyman et al., appellees\", \"name_abbreviation\": \"Tuttle v. Wyman\", \"decision_date\": \"1945-05-18\", \"docket_number\": \"No. 31917\", \"first_page\": \"146\", \"last_page\": 156, \"citations\": \"146 Neb. 146\", \"volume\": \"146\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:14:22.841348+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Paine, Carter, Messmore, Yeager, Chappell, and Wenke, JJ.\", \"parties\": \"Edna Tuttle, appellant, v. Bert A. Wyman et al., appellees.\", \"head_matter\": \"Edna Tuttle, appellant, v. Bert A. Wyman et al., appellees.\\n18 N. W. 2d 744\\nFiled May 18, 1945.\\nNo. 31917.\\nFrank M. Johnson, for appellant.\\nM. 0. Bates, for appellees.\\nHeard before Simmons, C. J., Paine, Carter, Messmore, Yeager, Chappell, and Wenke, JJ.\", \"word_count\": \"3678\", \"char_count\": \"20909\", \"text\": \"Messmore, J.\\nThis. is an action in equity to obtain a decree that the defendants are holding title to certain real estate in trust for the benefit of the estate of Isaac Large, deceased. The plaintiff, in her petition, charges the defendants with fraud in obtaining title to all of the real estate formerly owned by her father, Isaac Large; and prays that the defendants be declared trustees, holding title to the land for the benefit of the estate of Isaac Large. The defendants' answer denied generally the allegations of the petition; pleaded the statute of limitations; further alleged that Isaac Large had a num ber of creditors and conveyed his real estate with the intention to cheat and defraud his creditors; and prayed for a dismissal of the plaintiff's action. Plaintiff's reply is in effect a general denial of defendants' answer. The court decreed that no act of fraud was practiced by the defendants at the time of the execution of the deeds conveying to the defendants certain real estate formerly owned by Isaac Large; that the defendants are the owners of the fee simple title as joint tenants with right of survivorship of certain real estate formerly owned by Isaac Large, and that such real estate is not held in trust by the defendants for the benefit of his estate; and that defendants are holding title to one quarter section of land in trust for the benefit of the estate of Isaac Large. Plaintiff appeals, contending the court erred in not creating a trust as prayed in her petition. The defendants cross-appeal from that part of the decree awarding one quarter section of land, the title held by the defendants, to the estate of Isaac Large.\\nThe record discloses that on June 13, 1932, Isaac Large, then 71 years of age, made and executed his last will, wherein he devised and bequeathed all of his property to his two daughters, share and share alike, with the exception of a bequest of one dollar to a son. He died June 17, 1939. Also, on June 13, 1932, Isaac Large conveyed to Carl E. Faught three quarter sections of land in Keith county, the consideration named in the deed was $15,000. Nothing was paid by the grantee for the title. On the same day Large deeded one quarter section of land to Lester H. Stedman. The consideration named in the deed was $4,000. The grantee paid nothing for the conveyance. He also, on the same day, deeded a quarter section of land to Jesse L. Hendrix, a brother-in-law of Bert Wyman, defendant. The consideration set forth in the deed was $6,400, subject to a mortgage of $2,500. The grantee paid no consideration for the conveyance. He made and executed, on June 13, 1932, a power of attorney, designating the defendant Bert Wyman, as his attorney in fact to lease, convey, mortgage, collect the rents and attend to all business with reference' to the land deeded to Faught. Shortly thereafter Large moved to California.\\nOn July 26,1932, Large made and executed a second power of attorney to Bert Wyman, covering, in addition to the lands deeded to Faught, the lands deeded to Stedman and Hendrix. Bert Wyman collected all the rents from the real estate conveyed to Faught, Stedman and Hendrix, and paid the expenditures incident to the lands.\\nOn August 3, 1932, Faught deeded the same land to the defendants, the consideration named in the deed was one dollar. This deed was recorded May 7, 1935. August 13, 1932, Hendrix conveyed the land deeded to him by Large, to the defendants. The consideration named in the deed was $4,000, subject to a $2,500 mortgage. Defendants paid no consideration to Hendrix for this conveyance. This deed was recorded May 22, 1935. January 17, 1935, Stedman deeded the land conveyed to him by Large to the defendants. The named consideration was one dollar. This deed was recorded May 7, 1935. .\\nThe plaintiff, Edna Tuttle, is a sister of the defendant Della Wyman, and sister-in-law of the defendant Bert Wyman, and a daughter of Isaac Large, deceased.\\nOn May 31, 1932, Large entered into a contract to sell three quarter sections of land in Keith county to a real estate dealer for $15,000. He acknowledged receipt of a $5,-000 payment, but never obtained the money. This contract was to be completed August 1, 1932, when the balance of $10,000 was due. Previous to entering into the contract Large lost an amount of money, believed to be $10,000 on a fake horse race.\\nThe three quarter sections of land evidenced by the contract of May 31, 1932, is the land that Large deeded to Faught on June 13, 1932. In the fore part of June, 1932, Bert Wyman contacted Faught and wanted him to help his father-in-law out of some difficulties, explaining that the father-in-law had made an improvident contract of sale with respect to three quarter sections of Keith county land, and Bert Wyman wanted Faught to take title to the land, handle it as his own, and sell it. A short time thereafter Faught had a conversation with Large wherein Large told him about the contract of May 31, 1932, and said he was sorry he had entered into such a contract, and wanted Faught to take the title and sell the land. Faught agreed to do this and attempt to sell the land for $18,000, and if successful he would retain one-third of the amount over and above $15,000 as his commission. On August 1, 1932, the date of the expiration of the contract entered into May 31, 1932, the purchaser failed to comply with the terms of the agreement. Thereafter Faught instituted a suit to quiet title in him, and obtain a decree to that effect. He was successful and his explanation was that he believed the contract of May 31, 1932 constituted a cloud on the title, and by having it removed the land would be more salable. Faught testified that he took title to the three quarter sections of land as an accommodation to Large, and for the purpose of sale, believing he could make some money, but he never considered himself at any time the true owner. At the time he took title, he was not aware that Large had several creditors. It developed that on November 28, 1930, Large obtained a decree of divorce in Iowa, from his wife, and on June 10, 1931, she brought an action to set aside the decree. She obtained a settlement wherein Large was to pay off a mortgage, in the amount of $2,300, on certain land owned by her. This he failed to do, so suit was brought against Large in Keith county and judgment was obtained in the amount of $2,530.10. Faught mortgaged the land for $2,600, turning the money over to Bert Wyman who satisfied the judgment. The attorneys who represented Large in the divorce proceedings in Iowa, brought suit against him in Keith county, and procured a judgment in the amount of $276.25. Bert Wyman satisfied this judgment July 10, 1935. Suit was brought on a promissory note in favor of W. E. Burton, dated July 29, 1930, for $1,000 due July 29, 1932. Judgment was entered against Large on the note October 12, 1933, and satisfied May 21, 1935. Another judgment appears in the record, in favor of a bank on a note of $4,000. Judgment was entered against Large on January 18, 1932 for such amount, and he satisfied the judgment February 2, 1932. The record does not show any other creditors.\\nFaught testified he did not know the plaintiff, and thought Della Wyman was the only daughter, and had he known about the plaintiff, he would have required a written contract with respect to the conveyances made to him and by him.\\nThe conveyance to Stedman was taken by him as an accommodation to Large, when Large told him he was making a property settlement with his wife, and the lawyers wanted $1,100. Stedman conveyed to the defendants at Bert Wyman's suggestion.\\nIn 1933 and 1934 Stedman visited Large in California. At both times Large was receiving- subsistence from the county. On the first visit Large told Stedman he had received a letter from his daughter, Edna Tuttle, inquiring about his finances, and said she did not need to worry, he had everything fixed. Stedman attempted to contact Large in 1935, but he had moved to the county poor farm.\\nThe conveyance to Hendrix developed in the same manner as that which was made to Stedman. Hendrix testified he knew that the conveyance made by Large to him, and the conveyance by him to the defendants, bore false and untrue considerations.\\nThe record shows that Large was an inmate of the county poor farm in California from May 4, 1935 to June 30, 1936, and received subsistence from December, 1934, through March, 1938, in the amount of $382.45.\\nOn June 13, 1932, when the conveyances were made by Large to Faught, Stedman and Hendrix, and when the will was made and executed, and the first power of attorney was made and executed to Bert Wyman, the attorney consulted in these matters testified that Large said Bert Wyman was handling- the conveyances, and the attorney suggested it would be well to have a trust agreement drawn, unless the deeds of conveyance contained a recitation of trust. Large said he was deeding to friends of Bert, in whom he had confidence, and Bert would protect him, and in any event, he did not believe it would be necessary. On cross-examination the attorney testified that Large never made a request that he deed his property in order to avoid his creditors.\\nThe plaintiff testified that her father never told her he had conveyed real estate he owned in Keith and Dawson counties. She learned for the first time of the conveyances to Faught, Stedman and Hendrix in October or November, 1942, from Stedman, who wrote her about them, and that her father had made a will. She later discussed this matter with Stedman when she was in Long Beach, California in July, 1943. She was present at her father's funeral in Lexington, and no mention was made about the defendants owning title to all of the father's real estate. In 1941 she wrote to her sister, Della Wyman, defendant, inquiring about the progress of her father's estate. She received no answer to this letter. In August, 1942, she wrote again to her sister, to the effect that she needed $200- for hospital purposes, due to an operation to be performed upon her daughter. This amount was sent to her. The first she knew that the defendants claimed the property as their own was in July, 1943.\\nThere seems to be a dispute with reference to the date of a letter sent by the plaintiff to Della Wyman, as to whether the plaintiff knew about the different conveyances in 1939 or 1940, and was acquainted with the facts and circumstances. From a reading of the exhibit, it appears the plaintiff knew something about the conveyances, but not all of them. There is nothing to show that she knew the purposes for which they were made, or that she knew Faught, Stedman and Hendrix had conveyed to the defendants. She testified that her father wrote her he was deeding land in trust to Stedman for the benefit of his estate.\\nThe testimony in behalf of defendants was to the effect that Large was being pressed by his creditors, and inquired from a friend, and from an attorney, as to how he should proceed. He was advised if he made the conveyances and there were no judgments against him, there could be no harm in so doing, and it was nobody's business.\\nIt is apparent Isaac Large realized that he had been wasteful of his money and had made mistakes in transacting business. He lost confidence in his ability to attend to his business and felt he was unable to continue doing so. He desired to go to Caliifornia and live, and to leave his business affairs in the charge and care of a person in whom he had confidence. That person was his son-in-law, the defendant Bert Wyman. Mr. Wyman had considerable to do with the conveyances to Faught, Stedman and Hendrix, in fact, he engineered these conveyances. It was he that had Faught, Stedman and Hendrix convey to him and his wife without consideration passing in-any of the conveyances. The powers of attorney of June 13, 1932 and July 26, 1932, explain Large's confidence in Bert Wyman. He gave Mr. Wyman full and complete charge of his business. There was no intention nor desire on the part of Large to defraud or cheat his creditors. Bert Wyman knew this, and from the rents collected and by a mortgage on a part of the land, all of the creditors of Isaac Large were paid. Large felt that when he deeded the three quarter sections of Keith county land to Faught, that Faught would sell the land and there would be ample money to pay all his creditors and he would have thousands of.dollars in addition, besides the land which he had deeded to Stedman and Hendrix.\\nWe conclude the conveyances were not fraudulent, but were made to conserve and protect the estate of Isaac Large. If Isaac Large intended to cheat and defraud his creditors, or if he intended that the defendants would eventually own all of his real estate, obviously he would not have made a will on the same day the conveyances were made. Recognizing the right of this plaintiff to share and share alike in his property with her sister, the defendant Della Wyman, he nominated Della Wyman executrix .of his estate. He felt that she would make the division of the property in accordance with his desires, as evidenced by his will.\\nWe conclude the evidence shows a fraudulent scheme and devise on the part of the defendants to cheat and defraud this plaintiff, and to unjustly enrich themselves. It is clear that they did nothing to merit the ownership of all of Isaac Large's land. It was not intended by Large that they should own all of his land. It was his intention that the land be held in trust for the benefit of his estate. We believe, from analysis of the record, a constructive trust comes into existence.\\nIn Pollard v. McKenney, 69 Neb. 742, 96 N. W. 679, a case similar to the instant case in that the agreement to re-convey was entirely parol, the court held such an agreement would not fall within the statute of frauds. \\\"Where a person obtains the legal title of real estate belonging to another by means of fraud, actual or constructive, a court of equity will fasten a constructive trust upon the property, and convert the grantee or those claiming under him, by descent, into trustees of the legal title, and enforce the trust for the benefit of the grantor or those claiming under him.\\\"\\n\\\" 'A constructive trust is a relationship with respect to property subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property.' Restatement, Trusts, sec. 1e.\\\" Fisher v. Keeler, 142 Neb. 728, 7 N. W. 2d 659. See, also, Wilcox v. Wilcox, 138 Neb. 510, 293 N. W. 378.\\n\\\" a constructive trust will arise whenever the circumstances under which property was acquired make it inequitable that it should be retained by him who holds .the legal title, as against another, provided some confidential relation exists between the two, and provided the raising of a trust is necessary to prevent a failure of justice.\\\" 65 C. J., sec. 215, p. 456.\\n\\\"A constructive trust is the formula through which the conscience of equity finds expression, and when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the bene ficial interest, equity converts him into a trustee.\\\" Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 122 N. E. 378.\\nWe hold, under the circumstances, a constructive trust is established, and the defendants are declared to be trustees and to hold title to the lands in question for the benefit of the estate of Isaac Large, deceased.\\nThe next question presented is whether or not the statute of limitations has run against the plaintiff's claim. The defendants, in their answer, allege that more than four years have elapsed since the conveyances were made and before the death of Isaac Large; and more than four years have elapsed since the death of Isaac Large; that if a cause of action existed in favor of Isaac Large, it was barred by the statute of limitations before his death, and if a cause of action accrued to the plaintiff upon the death of Isaac Large, it is now barred by the statute of limitations.\\nThe plaintiff did not discover the true facts with reference to the conveyances made to Faught, Stedman and Hendrix until October or November, 1942, and she first discovered that the defendants claimed to own all of the real estate which formerly was owned by her father and to which they held title, in July, 1943. In none of the correspondence between the defendant, Della Wyman, and the plaintiff, was it ever revealed to the plaintiff, or even indicated, that the defendants claimed to own all of such land, or that they even held title to any part of it; nor was it ever mentioned by the defendants; nor did she have knowledge of her father's will. As far as the defendants were concerned, they concealed knowledge of facts from this plaintiff respecting the conveyances, especially the conveyances from Faught, Stedman and Hendrix to them, and of the will.\\nThe statute of limitations does not run in a case such as the instant case, during the time when the obligor fraudulently conceals the existence of the cause of action. \\\" 'The statute of limitations begins to run in favor of a trustee ex maleficio of a constructive trust from the time of the discovery of the wrong or fraud, for the prevention of which the trust is imposed.' Hanson v. Hanson, 78 Neb. 584.\\\" Abbott v. Wagner, 108 Neb. 359, 188 N. W. 113. See, also, Wiseman v. Guernsey, 107 Neb. 647, 187 N. W. 55.\\nThe plaintiff offered exhibits 26 and 27, depositions of the defendants, in evidence. The offer was made for the purpose of showing a variance between the defense pleaded in the defendants' answer that Isaac Large made the conveyances of his real estate to cheat and defraud his creditors, and the testimony given in the depositions. The defendants objected to the depositions, on the ground that the defendants were residents of the county and their testimony was available, and in fact, the defendant Bert Wyman was in attendance during the trial. The objections were sustained, and in the depositions we find relevant and material evidence not objected to, which discloses statements in the nature of admissions against interest which are pertinent to the issues being tried. The defendants testified that they were the owners of all of the land formerly owned by Isaac Large and to which they held title, for the reason that they had supported him and sent him approximately $100 per month during the last 7 years of his life, and this was the agreement.\\n\\\"It is a well-settled rule that admissions of a party against interest made in court or out of court, with reference to and pertinent to the issues being tried, are admissible in evidence against such party.\\\" Gentry v. Burge, 129 Neb. 493, 261 N. W. 854. See, also, Young v. Kinney, 79 Neb. 421, 112 N. W. 558; McDaniel v. Farlow, 132 Neb. 273, 271 N. W. 905.\\n\\\"A statement made by a party to an action as to any fact in issue unfavorable to the conclusion contended for by such party is relevant, and may be introduced in evidence as an admission against interest.\\\" Falkinburg v. Inter-State Business Men's Accident Co., 132 Neb. 670, 272 N. W. 924.\\nThe court -should have admitted the depositions, for the purpose here stated.\\nThe court divided the costs, requiring each party to pay their own costs. We hold that within the contemplation of section 25-1708, R. S. 1943, \\\"Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of specific real property\\\", the court did declare a trust existed in so far as the quarter section of land held by Stedman and conveyed by him to the defendants was concerned. The defendants did not concede that any part of this land that originally belonged to Isaac Large was held by them in trust. The court's decree constituted a recovery for specific real property in which the plaintiff would be entitled to an undivided half interest. The court erred in dividing the costs under the circumstances.\\nThe accounting requested by the plaintiff is not before the court, and need not be determined. We hold that all the land formerly owned by Isaac Large, to which the defendants now hold title, be declared to be held in trust by the defendants for the benefit of the estate of Isaac Large, deceased, and judgment be entered accordingly. Defendants' cross-appeal is dismissed.\\nAffirmed in part and\\nREVERSED IN PART.\"}"
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+"{\"id\": \"2560651\", \"name\": \"William A. Rumsey, appellant, v. Schollman Bros. Co., a corporation, appellee, Impleaded with DeBuse Brothers, Inc., a corporation, appellant\", \"name_abbreviation\": \"Rumsey v. Schollman Bros.\", \"decision_date\": \"1952-11-28\", \"docket_number\": \"No. 33189\", \"first_page\": \"251\", \"last_page\": 257, \"citations\": \"156 Neb. 251\", \"volume\": \"156\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:38:38.989932+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"parties\": \"William A. Rumsey, appellant, v. Schollman Bros. Co., a corporation, appellee, Impleaded with DeBuse Brothers, Inc., a corporation, appellant.\", \"head_matter\": \"William A. Rumsey, appellant, v. Schollman Bros. Co., a corporation, appellee, Impleaded with DeBuse Brothers, Inc., a corporation, appellant.\\n55 N. W. 2d 668\\nFiled November 28, 1952.\\nNo. 33189.\\nBrown, Crossman, West, Barton & Quinlan, for appellant.\\nFraser, Connolly, Crofoot & Wenstrand, for appellee.\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"word_count\": \"2164\", \"char_count\": \"12573\", \"text\": \"Simmons, C. J.\\nThis is an action for damages against the defendant Schollman Bros. Co. based on alleged negligence in the operation of oil-burning salamanders on a construction job. At the close of the trial the court sustained a motion of the defendant for a directed verdict- and dismissed the action. Plaintiff appeals. We reverse and remand.\\nCarl C. Wilson, Inc. was a general contractor, constructing a multiple unit apartment house in Omaha. Schollman Bros. Co., a corporation, was a subcontractor of the plumbing installations and hereinafter is called defendant. DeBuse Brothers, a corporation, was the subcontractor of carpenter work. Plaintiff was an employee of DeBuse Brothers. DeBuse Brothers is made a defendant for purposes of subrogation under the provisions of section 48-118, R. R. S. 1943, it having paid compensation and hospital bills.\\nSo far as is necessary for the requirements of this opinion, we summarize the evidence in accord with the rule: A motion to dismiss or for a directed verdict admits the truth of all material and relevant evidence adduced by the party against whom the motion is made, and such party is entitled to have such evidence considered in the light most favorable to him and to have the benefit of all inferences reasonably deducible therefrom in testing the validity of the court's action in disposing of the motion. Weisenmiller v. Nestor, 153 Neb. 153, 43 N. W. 2d 568.\\nThe apartment building consisted of a basement and two stories above ground. The plaintiff's cause of action arises as a result of events happening on March 3, 1950. The day was cold. The rooms here involved were an unfinished basement room 50 feet by 30 feet in size and similar sized apartments above on the first and second floors. Studding for partitions was in place, otherwise the basement room and the apartments were all one open space. Above the basement was the rough first floor of the apartment, the boards separated by cracks. The same type of floor was on the second floor apartment, and above that were ventilator openings in the roof. Temporary doors were in place on outside openings and kept closed, and likewise the windows were closed or covered with material to keep out the cold. The ground in the basement was frozen. Defendant was using the salamander stoves to thaw out the necessary area for digging trenches. The operation had been going on for some time.\\nThese salamander stoves have a round tank base, for fuel and the burner, which is from 22 to 24 inches in di ameter. Above that is a chimney placed in the center of the base on the top of which is a canopy about the size of the chimney. The top of the salamander is five to six feet above the base. Five salamanders were in use. One of them had a smaller pipe to carry gases to the center of the chimney. Four were not so equipped. None of them were equipped with pipes to carry gases or fumes out of the room. Four, and normally all five, were burning all the time. On the day involved here all five were concentrated in a 10-foot area and about five or six feet apart. Kerosene oil was being used as a fuel. Under normal operation these salamanders gave off an odor of oil and made a buzzing sound, the amount of sound depending on the amount of air going to the burner. These particular burners required refueling once or twice a day, and whenever that was done it was also necessary to clean them and remove carbon deposits from the chimneys to secure normal operation. The evidence is that the use of salamanders is common on construction jobs, and that normally they give an odor of oil and a buzzing sound. The evidence also is that when so used it is not customary to connect them with pipes to carry fumes outside the building, and for the reason that where they require frequent moving, as these did here, it was impractical to do so. There was no notice of the use of salamanders posted in the building in question. There is evidence that such notices were never used.\\nOn the afternoon of March 3, 1950, plaintiff, who theretofore was a man in good health, finished the work he was doing in another unit of the building and between 1:30 p. m. and 2 p. m. moved into the apartment above the basement where the group of salamanders were burning. It was the apartment next in line to be worked upon by him. He began his usual work there. He noticed the usual smell of oil and heard the usual buzzing. About 2 p. m. or shortly thereafter a foreman of defendant came into the room where plaintiff was working. He noticed a \\\"strong odor\\\" of oil, soot on plaintiff's face and hands, and that plaintiff looked pale. The foreman told plaintiff, \\\"Bill, you better get out of here. This will kill you.\\\" Plaintiff answered, \\\"I am beginning to feel it already.\\\" The foreman then left. Plaintiff picked up his tools and went outside immediately thereafter. He felt dizzy. The next he remembers, it was 4:20 p. m., and he was then outside near a .pile of lumber. He went home, ate a light supper, and went to bed. That night he had pains in his chest, the next day he had developed a fever, was having chills, and a doctor was called.\\nOn March 7 he was taken to a hospital suffering from pneumonia. He was discharged from the hospital on March 14 and was taken home for further treatment. On March 18 the symptoms had recurred and he began to have pain in his left leg. He was taken to the hospital on March 19 where his diagnosis was pneumonia. He was discharged from the hospital on April 10. He returned to work on July 24, 1950. He was paid workmen's compensation by his employer's insurance carrier in a sum about 25 percent of his normal wages. Plaintiff incurred hospital bills which were paid in part by insurance which he carried and in large part by the insurance carrier of the plaintiff's employer. He incurred a considerable physici\\u00e1n's bill, which it appears has not been paid. Phlebitis developed in the left leg, resulting in a permanent partial disability.\\nThe expert evidence is that where there is incomplete combustion in burners of this character carbon monoxide is given off; that very seldom are conditions ideal for complete combustion; and that whenever carbon \\u2014 soot\\u2014 is produced it indicates that combustion is not complete. Carbon monoxide is odorless, tasteless, and colorless, and is lighter than air. It is extremely poisonous physiologically. One part to 1000 parts of air is injurious and. fatal in half an hour and in many cases the person breathing it simply loses consciousness.\\nPlaintiff's attending physician, following the history of the fumes, testified that the pneumonia was \\\"Probably an inhalation type\\\"; that \\\"a marked factor in developing the pneumonia was inhalation of the fumes The time element fits in that was the probable cause and possibly was the cause I don't think I could say it was it would look to me like the inhalation was a big factor in the development of it.\\\"\\nAs to the phlebitis the evidence is that \\\"anything that retards the blood flow like a person being in bed could be a causative factor being in the hospital and being off his feet could have something to do with it immobility could have been a factor\\nPlaintiff pleads that defendant was negligent in three particulars: \\\"(a). In operating five oil burning salamanders within a confined space without giving the plaintiff \\u00e1dequate warning of the operation and presence of said salamanders when the plaintiff entered said apartment in said building.- (b). In failihg to provide each of said salamanders with an exhaust pipe to carry the noxious gases and fumes from said salamanders outside the building and into the open air. (c). In failing to assist plaintiff from his place of peril when it recognized, or should have recognized the dangerous situation created by said defendant, in which the plaintiff was inhaling noxious gases and fumes given off by said salamanders.\\\"\\nDefendant's motion for an instructed verdict was that the evidence failed to establish negligence on its part; that it established contributory negligence more than slight on the part of the plaintiff; and that it failed to establish that the pneumonia was caused by any negligence on its part.\\nThe initial question presented is what is the duty owing by defendant, a subcontractor, to the employee of another subcontractor under the situation that existed on this construction job.\\nThe rule appears to be well established that \\\"Where two or more independent contractors, or a general con tractor and one or more subcontractors, are engaged in work on the same premises, it is the duty of each contractor, in prosecuting his work, to use ordinary and reasonable care not to cause injuries to the servants of another contractor; and an employee of one contractor may recover against another contractor for injuries caused by the negligence of the latter contractor, or of his employees acting within the scope of their employment, in the performance of a duty owed by such contractor to the injured employee.\\\" 57 C. J. S., Master and Servant, \\u00a7 610, p. 382. See, also, Annotation, 38 A. L. R. 471.\\nDefendant argues here that salamanders are commonly used on construction jobs, such as the one here; that they were in use on this job; that warning signs of their use are never posted; that it is not customary to connect the salamanders with outside vents except in cases of something in the nature of a permanent installation; that plaintiff knew of their use on this job; that when he entered the room here he recognized the odor and noise of the salamanders and had notice of their use at this particular time; that he remained in the room for some time after he knew the ill effects produced and knew or must have known of soot on his hands and face; and that he assumed the risk and was guilty of contributory negligence sufficient to bar recovery. A part of defendant's argument here is based on conclusions from conflicting evidence.\\nAll of this argument misses the crucial fact of this case. Here there was a concentration of five of these salamanders in one closed room. The evidence is ample to sustain a finding that there was incomplete combustion; that carbon monoxide gas was being manufactured by them and other substances such as carbon being thrown off; that carbon monoxide gas is extremely poisonous; that it is odorless, tasteless, colorless, and lighter than air; and that its obvious escape was upward to the room above where plaintiff was working. Those are the facts upon which plaintiff predicates his action. The defenses advanced by defendant do not meet that situation.\\nThe care necessary to avoid injury or harm must be commensurate with the danger of harm involved in the particular case. 38 Am. Jur., Negligence, \\u00a7 29, p. 673; 65 C. J. S., Negligence, \\u00a7 64, p. 555. The evidence here presents, at least, a jury question as to whether or not the defendant exercised the care required under the circumstances of this case.\\nIt also is a jury question, at least, as to whether or not defendant was guilty of contributory negligence under the circumstances admitted to be true by the motion in this case.\\nFinally defendants contend that the evidence was insufficient to show that the pneumonia was caused by the inhalation of carbon monoxide gas and other matter released by the salamanders. This is directed particularly at the testimony of plaintiffs expert witness. We ' have heretofore set out the evidence as to plaintiff's good health immediately before his entry into this room. We have also set out his appearance and condition thereafter and the development of this disease. We deem the evidence sufficient to sustain a conclusion of cause and effect. See, Koran v. Cudahy Packing Co., 100 Neb. 693, 161 N. W. 245; Adams v. Lilbourn Grain Co., 226 Mo. App. 1030, 48 S. W. 2d 147.\\nWe do not determine the sufficiency of the evidence to show that plaintiff's phlebitis was the result of the acts of the defendant. That is not argued here. The right of plaintiff to have this cause submitted to a jury does not turn on that question.\\nThe judgment is reversed and the cause remanded.\\nReversed and remanded.\"}"
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+"{\"id\": \"2575173\", \"name\": \"Harold W. Chambers, appellant, v. Bilhorn, Bower & Peters, Inc., et al., appellees\", \"name_abbreviation\": \"Chambers v. Bilhorn, Bower & Peters, Inc.\", \"decision_date\": \"1944-11-03\", \"docket_number\": \"No. 31784\", \"first_page\": \"277\", \"last_page\": 282, \"citations\": \"145 Neb. 277\", \"volume\": \"145\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:00:33.828444+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Paine, Carter, Messmore, Yeager, Chappell and Wenke, JJ.\", \"parties\": \"Harold W. Chambers, appellant, v. Bilhorn, Bower & Peters, Inc., et al., appellees.\", \"head_matter\": \"Harold W. Chambers, appellant, v. Bilhorn, Bower & Peters, Inc., et al., appellees.\\n16 N. W. 2d 173\\nFiled November 3, 1944.\\nNo. 31784.\\nLloyd E. Peterson and Betty Jean Peterson, for appellant.\\nG. H. Seig, contra.\\nHeard before Simmons, C. J., Paine, Carter, Messmore, Yeager, Chappell and Wenke, JJ.\", \"word_count\": \"1667\", \"char_count\": \"9738\", \"text\": \"Simmons, C. J.\\nThis appeal involves a claim for workmen's compensation based upon the contention that a hydrocele on the left side was caused by an infected injury to the lower right leg. .The matter was heard before a judge of the compensation court, the compensation court, and the district court, resulting in a dismissal in each instance. We affirm the judgment of the trial court.\\nOn September 8, 1939, the plaintiff in the course of his employment by the defendant, Bilhorn, Bower & Peters, Inc., was struck on the right leg below the knee by a heavy iron beam. He was given first aid and continued working. Some days later his leg became infected and on September 18 he was sent to the doctor. He at that time had an infected area an inch to an inch and a. half wide and three inches long. He went to bed for a week, was off work for two weeks, when he returned to work, and so far as the infected leg was concerned was thereafter able to work.\\nThe infected leg did not heal and treatment continued. It. did not respond to treatment until sulphanilamide was given internally, when the infection cleared about four months after the injury occurred. The last charge of the doctor for treatment to the leg was made on January 13, 1940. The insurance carrier paid compensation for two weeks and paid the doctor bill on February 2, 1940.\\nOn January 7, 1941, plaintiff filed his petition in the compensation court claiming that as a result of the accident he had developed a hydrocele on the left side, permanent in character, and requiring additional medical and surgical treatment, and praying that he recover compensation.\\nDefendants answered admitting the employment, alleging payment of compensation for the leg injury, denying generally, pleading the bar of the statute of limitations, and alleging that if plaintiff had any further disability, it was due to disease and not the result of accidental injury while employed by the defendant.\\nA hearing was had before one judge of the compensation court who, on July 9, 1941, dismissed the plaintiff's petition. Plaintiff refused to accept the award and, on his petition, a hearing was had before the compensation court. On June 9, 1942, the order of dismissal was affirmed by that tribunal. From that order, the plaintiff appealed to the district court, where the matter was submitted and determined on the record and the bill of exceptions from the compensation court. The district court dismissed the plaintiff's petition on September 26, 1942. A motion for a new trial was filed promptly. It was overruled on December 4, 1948. From that determination, an appeal has been taken to this court.\\nPlaintiff here contends that the compensation court considered \\\"medical textbooks,\\\" which were not and are not in evidence; that the district court merely found that the record and evidence supported the findings of fact made by the compensation court, and hence did not consider the case de novo; and that the matter should be here considered de novo without regard to the findings of the compensation and district courts. Defendants contend that the findings are supported by the record; that no other findings could properly be made; and that the action is barred by the statute of limitations applicable to compensation cases, in that notice of the hydrocele was not given and claim for compensation made within the time fixed by law.\\nWithout determining these questions, we go direct to the question of whether or not the evidence shows that the hydrocele on the left side resulted from the injury to the right leg' and is compensable.\\nThe rules of law applicable here are: \\\"The burden of proof is upon the claimant in a compensation case to establish by a preponderance of the evidence that personal injury was sustained by the employee by an accident arising out of and in the course of his employment\\\" and \\\"A compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.\\\" Zanski v. Yellow Cab & Baggage Co., 143 Neb. 340, 9 N. W. 2d 302.\\nPlaintiff testified that the hydrocele first appeared three days after he went to bed, which would be about two weeks after the accident; that he then called it to the doctor's attention; that the doctor first treated it from four to six weeks after it appeared; and that since that time, it has been drained once every six weeks to two months. He further testified that he had never had a venereal disease and no infection in his system, other than that of the leg injury.\\nPlaintiff's physician, a general practitioner, testified that plaintiff had a severe traumatic ulceration at the point of the bruise; that his leg was swollen to the groin; that there was a glandular involvement on both sides. He did not fix the date when the hydrocele appeared, but states that it \\\"was probably developing\\\" on September 21, 1939, but he was not sure it was a hydrocele for two or three weeks. Plaintiff's witness developed the theory that the accident caused the injury which was followed by the infection; that the infection spread to the groin, finally reaching the left testicle and settled there causing the hydrocele; and that he believed there was a direct causal connection between the wound and the hydrocele, although admitting that he had never read of, nor had he experienced, a similar result from such an infection.\\nThe defendants offered as their expert witness a specialist engaged in both teaching and practice. He examined-the plaintiff and testified as to his findings. He testified that an infection or trauma of the scrotum or contents or circulatory disturbances might cause an acute hydrocele, but that the cause of a chronic hydrocele is not known; that he had never heard of nor read of a chronic hydrocele being caused by a leg infection, such as the plaintiff had; that an infection from the right leg might \\\"by a wild stretch of the imagination\\\" involve the right testicle, but he had never seen nor heard of such a case; and that had such a case occurred it would have been reported in the literature on the subject. He gave it as his opinion that the hydrocele was purely \\\"coincidental,\\\" and that there was no connection between the accident and the hydrocele. In this connection, a letter from plaintiffs physician to defendant's attorney, dated May 2, 1941, contains this statement: \\\"I remember telling you I had never read of nor experienced a similar coincedence, (sic) but I did tell you that I felt there was a connection between the two.\\\" (Emphasis supplied.)\\nThe following facts must be considered in this connection. Plaintiff's physician, while having definite knowledge of the hydrocele a few weeks after the infection, made no mention of that fact in his reports to the insurance carrier submitted during the period of treatment for the leg. While he testified! that he was treating the hydrocele, he made no charge for that treatment, as such, during the period from September 18, 1989, to January 13, 1940. His bill for services submitted to the carrier and paid by it on February 2, 1940, was for services to the infected leg. While he testified that he prescribed the use of a suspensory, the bill for drugs submitted to and paid by the carrier made no mention of that device. The doctor prepared a second statement for services from March 11, 1940, to May 31, 1941. The testimony shows that there was an aspiration performed on March 11, 1940, for which charge was made and described on the second statement as an \\\"office call.\\\" The first entry on the charge account, which we find has reference to a hydrocele, was made on October 1, 1940. The defendants were not then notified of the disability, and so far as we can discover from this record, the defendants were not advised of the claim that the hydrocele resulted from the infection until this action was brought.\\nIt- further appears from the testimony of both doctors that the etiology of a chronic hydrocele, such as plaintiff has, is not known to the medical profession, and that there are no cases in the medical books showing that a hydrocele has been caused by an infection such as plaintiff had. Injuries of this kind with resulting infections occur quite commonly to male members of the human family. If there was a cause and effect relationship between such an infection and the hydrocele, it seems to us that the medical profession would ere now have discovered that fact. The most that can be said for plaintiff's evidence is that it indicates that there might possibly be a connection between the two. That is not sufficient to sustain a recovery.\\nBut plaintiff argues that it has long been the rule of this court that a liberal construction will be given to the workmen's compensation act, and that, liberally construed, this evidence is sufficient to sustain an award. The rule of liberal construction applies to the law, not to the evidence offered to support a claim. The rule does not dispense with the necessity that claimant prove his right to compensation within the rules heretofore set out, nor does it permit a court to award compensation where the requisite proof is lacking.\\nWe are of the opinion that claimant has failed to prove a right to compensation. This makes it unnecessary to determine the other questions presented.\\nThe judgment of the district court is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2588819\", \"name\": \"Gertrude V. Bohy, appellant, v. Pfister Hybrid Company, appellee\", \"name_abbreviation\": \"Bohy v. Pfister Hybrid Co.\", \"decision_date\": \"1965-11-19\", \"docket_number\": \"No. 36007\", \"first_page\": \"337\", \"last_page\": 342, \"citations\": \"179 Neb. 337\", \"volume\": \"179\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:35:38.051646+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Carter, Spencer, Boslaugh, Brower, Smith, and McCown, JJ.\", \"parties\": \"Gertrude V. Bohy, appellant, v. Pfister Hybrid Company, appellee.\", \"head_matter\": \"Gertrude V. Bohy, appellant, v. Pfister Hybrid Company, appellee.\\n138 N. W. 2d 23\\nFiled November 19, 1965.\\nNo. 36007.\\nWright, Simmons & Hancock, for appellant.\\nHoltorf, Hansen, Fitzke & Kortum and Sidner, Gunderson, Svoboda & Schilke, for appellee.\\nHeard before White, C. J., Carter, Spencer, Boslaugh, Brower, Smith, and McCown, JJ.\", \"word_count\": \"1650\", \"char_count\": \"9790\", \"text\": \"Boslaugh, J.\\nThis is a proceeding under the Workmen's Compensation Act. Gertrude V. Bohy, the plaintiff, is the widow of Henry C. Bohy. The petition alleged that Bohy had been employed by Pfister Hybrid Company, the defendant, and while in the course of his employment was killed in a grade crossing accident on February 14, 1963.\\nThe answer denied the allegations of the petition generally; and alleged that Henry C. Bohy was an independent contractor and that no accident occurred which made the Workmen's Compensation Law applicable.\\nThe compensation court, after the hearing before a single judge of that court, found that Bohy was an independent contractor and dismissed the action. Both parties filed applications for rehearing before the full compensation court. The compensation court sitting en banc, with one judge dissenting, found that Bohy was an independent contractor and dismissed the action.\\nThe plaintiff appealed to the district court which found generally for the defendant, that the judgment of the compensation court should be affirmed, and dismissed the action. The plaintiff's motion for new trial was overruled and she has appealed to this court.\\nThe record shows that the defendant is engaged in the business of producing and marketing hybrid seed corn. In 1955, Bohy submitted an application to the defendant to obtain a contract authorizing him to sell the defendant's product in the Scottsbluff, Nebraska, area. On March 10, 1955, Bohy and the defendant executed a written contract entitled \\\"Dealer's Agreement.\\\" On August 1, 1961, a new agreement, substantially the same as the March 10, 1955, agreement, was executed. The August 1, 1961, agreement was in force at the time of Bohy's death on February 14, 1963.\\nThe contract between Bohy and the defendant provided that Bohy, as a dealer, agreed to undertake the sale of Pfister Hybrid Seed Corn in the Scotts Bluff County area and that Bohy would not handle any other hybrid seed corn while the contract was in force. The defendant agreed to deliver seed corn to Bohy on consignment to fill the orders taken by him, and allow him a discount from the established retail price at a special rate which varied according to the quantity sold. The contract further provided that prices and terms of sale would be prescribed by the defendant; that Bohy was responsible for delivery of seed com to purchasers and collection of the purchase price; that the title to seed corn delivered to Bohy remained in the defendant; that claims for shortages or damage must be made immedi ately; that seed corn remaining unsold could be returned to the defendant; that proceeds from the sale of seed corn were the property of the defendant and were to be transmitted to the defendant in the same form as received; that orders and downpayments were to be sent to the defendant weekly; that a report of completed deliveries and the net amount due would be sent to the defendant weekly; that details of work, hours of work, and personnel of dealer's assistants were entirely within the discretion of Bohy but that Bohy agreed to consult with representatives of the defendant and bring matters affecting the business to the attention of the defendant; that crop failure and other conditions beyond the control of the defendant relieved it from its obligations under the contract; and that the agreement could be terminated by either party at any time by written notice. The agreement further provided: \\\"NEITHER said dealer nor any of his agents or employees shall in any manner be deemed or held to be employees of the Pfister Hybrid Company, nor shall said dealer or any agent or employee of his be entitled to any benefits payable to employees of the Pfister Hybrid Company, such as, but not limited to, workmen's1 compensation, pension, unemployment insurance and social security laws of the United States or the several States thereof.\\\"\\nThe record further shows that Bohy sold seed corn other than that supplied by the defendant and did not transmit proceeds from the sale of seed corn to the defendant weekly or in the same form as received. To that extent, the performance by the parties deviated from the strict terms of the written contract.\\nThe record indicates that Bohy supplied his own transportation and advertising materials. Joe Foster, a field-man for the defendant, would sometimes ride with Bohy to call on customers. Funds remitted to Bohy by the defendant were designated on the defendant's record as discount, discount earned, or commission.\\nThe contract under which service is performed and the performance thereunder determine the relationship between the contracting parties. In re Estate of Bingaman, 155 Neb. 24, 50 N. W. 2d 523.\\nThe issue as to whether or not a workman is an employee, as distinguished from an independent contractor, is to be determined from all the facts in the case. There is no single test by which that determination can be made. An independent contractor is generally distinguished as being a workman who is independent in his employment; one who contracts to do a particular piece of work according to his own method, and is not subject to the control of his employer, except as to the results of his work. He is not in such a case a servant of his employer; nor can he be controlled by the employer in the manner of doing the work, except to the extent that the employer has the right to give such directions as may be found necessary to insure compliance with the contract. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N. W. 940.\\nAn independent contractor is one who renders the service in the course of an independent occupation representing the will of his employer only as to the result of the work and not as to the means by which it is accomplished. Wilds v. Morehouse, 152 Neb. 749, 42 N. W. 2d 649.\\nIn Johnston v. Smith, 123 Neb. 716, 243 N. W. 894, the plaintiff who sold newspaper advertising for the defendant upon a commission basis was held to be an independent contractor. This court said: \\\"The plaintiff having undertaken to obtain contracts for advertising for no other remuneration than a percentage of the gross amount of the contracts, to pay all of his own traveling expenses, to choose his hours of labor, and to select the prospective customers upon whom he should call in his territory, without apparent right of the defendant to control his work, was not an employee within the meaning of the workmen's compensation act at the time of his injury, even though he was assigned a territory in which to work and given a list of prospective customers and supplies with which to write the contracts. Christensen v. Protector Sales Co., 105 Neb. 389; Petrow & Giannou v. Shewan, 108 Neb. 466; Priest v. Business Men's Protective Ass'n, 117 Neb. 198.\\\"\\nWe think that the facts and circumstances in this case show that Bohy was an independent contractor and not an employee of the defendant.\\n. The plaintiff argues that the written contract between the parties, the \\\"Dealer's Agreement,\\\" was a scheme, artifice, or device used by the defendant to avoid liability under the Workmen's Compensation Act and that the defendant should be held liable under section 48-116, R. R. S. 1943. Except as provided in section 48-112, R. R. S. 1943, an employer cannot escape liability under the Workmen's Compensation Act by the use of a written contract of employment in which an employee, who would otherwise be covered by the act, is recited to be something other than an employee. In this case all of the facts and circumstances, including the contract under which the service was performed and the performance thereunder, establish that the relationship between Bohy and the defendant was that of independent contractor.\\nThe plaintiff further argues that the \\\"Dealer's Agreement\\\" between Bohy and the defendant was an illegal contract unless it was a contract of employment. The plaintiff asserts that a contract by which the defendant controls the price for resale of its product violates the provisions of Chapter 59, R. R. S. 1943, and the federal laws which pertain to such agreements. One difficulty with this argument is that it assumes that the defendant's products were sold to Bohy so that they became his property and were then resold by Bohy to his customers. The \\\"Dealer's Agreement\\\" clearly provided that title to the defendant's products delivered to Bohy remained vested in the defendant and provided for the return to the defendant of products remaining unsold.\\nThere is another phase of the case that should be mentioned. Before the plaintiff could recover compensation in this case, she was required to prove that Bohy was killed as a result of an accident arising out of and in the course of his employment by the defendant. The only evidence concerning what Bohy may have been doing at the time of the accident is the plaintiff's testimony that the last time she saw her husband before his death was \\\"That morning when he left to go to work.\\\" The accident occurred at about 11:30 a. m., south of Morrill, Nebraska. The evidence in this case was not sufficient to show affirmatively that Bohy, if an employee, was on his employer's business at the time of the accident. See Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N. W. 2d 410.\\nThe conclusion which we have reached is the same as that reached by the compensation court and the district court: The judgment of the district court is, therefore, affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2594167\", \"name\": \"First National Bank in Ord, a corporation, appellant, v. Delores Morgan, appellee\", \"name_abbreviation\": \"First National Bank v. Morgan\", \"decision_date\": \"1961-12-01\", \"docket_number\": \"No. 35042\", \"first_page\": \"849\", \"last_page\": 855, \"citations\": \"172 Neb. 849\", \"volume\": \"172\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:03:04.312371+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"parties\": \"First National Bank in Ord, a corporation, appellant, v. Delores Morgan, appellee.\", \"head_matter\": \"First National Bank in Ord, a corporation, appellant, v. Delores Morgan, appellee.\\n112 N. W. 2d 26\\nFiled December 1, 1961.\\nNo. 35042.\\nJohn R. Sullivan, for appellant.\\nD. A. Russell, for appellee.\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"word_count\": \"1965\", \"char_count\": \"11256\", \"text\": \"Brower, J.\\nThis is a replevin action brought by the First National Bank in Ord, Nebraska, a corporation, appellant and plaintiff, against Delores Morgan, appellee and defendant.\\nPlaintiff's amended petition alleges that plaintiff had a \\\"special property, claim, interest or ownership\\\" in a certain automobile. The special interest arose by virtue of a note secured by a chattel mortgage covering the same, both executed on May 19, 1959, by Curtis Morgan only, the defendant's husband. The note was in the amount of $3,939.28 payable in two installments, each for $1,969.64, which became due on March 1, 1960, and March 1,1961. It contained the usual clause providing that the whole became due on failure to pay any installment. The petition alleges a default thereunder and that the plaintiff was entitled to the immediate possession of the automobile. The amended petition showed the car was purchased November 21, 1958, by Curtis Morgan and Delores Morgan, and a certificate of title was then issued in both their names jointly with full rights of survivor-ship. Endorsed on the certificate is the notation of the county clerk dated August 5, 1960, that the same was subject to this mortgage \\\"Signed only by Curtis Morgan.\\\" This petition alleges that when the note and mortgage were executed on May 19, 1959, Curtis Morgan borrowed $3,500 secured by said mortgage, which amount was then deposited by Curtis Morgan in an account in the plaintiff bank, on which the defendant had the right to draw checks; and that the funds so deposited were for the use and benefit of defendant as well as Curtis Morgan, whom it is alleged then represented that they were to be used to remodel a farm house occupied by him and the defendant. On February 2, 1960, by way of prepaying the installment due on March 1, 1960, it is alleged the defendant delivered to the plaintiff bank her check drawn on it for $1,969.64, which was not paid because of insufficient funds; that though defendant did not execute the note and mortgage, by giving the check she acknowledged the debt and ratified the actions of her husband in mortgaging the automobile, and by her actions and dealings with the plaintiff agreed to be bound by the terms thereof; that her interest in the automobile was so bound; that defendant was estopped to deny .the' plaintiff's right to replevin the car; and that plaintiff had an equitable lien on the defendant's interest therein.\\nDefendant filed an answer containing a general denial and an assertion of-an ownership of an undivided half interest and right of possession in the automobile at the commencement of the action and sought damages for wrongful detention, to which plaintiff replied with a general denial.\\nTrial was had on December 12, 1960, and after empaneling a jury the plaintiff offered evidence, at which time the defendant demurred ore tenus on the ground that plaintiff's amended petition did not state a cause of action. The court sustained the demurrer and thereafter the matter proceeded to trial only on the question of the amount of damages due the defendant for the wrongful taking. Judgment was then entered for the return of the automobile and the damages assessed by the jury. A motion for new trial was overruled and plaintiff appealed to this court.\\nThe sustaining of the demurrer ore tenus is the only error assigned. No bill of exceptions is filed with respect to the evidence regarding the damages assessed so that matter is not before us in view of our decision.\\nThe questions involved here are whether a mortgagee of one cotenant can maintain an action in replevin against the owner of the other undivided half of a single article by its nature not subject to division between the co-owners, and whether the petition states facts which show the interest of the defendant in the automobile was bound under the chattel mortgage either by ratification or estoppel or because defendant's actions created an equitable mortgage on her interest therein.\\nIt is an elemental rule that replevin lies only in behalf of one entitled to the possession of the property as against the defendant, at the time of the commencement of the action or issuance of the writ, and such right of possession must be immediate, exclusive, and unqualified. See 77 C. J. S., Replevin, \\u00a7 42, p. 29. It is also held that: \\\"Generally, where a personal chattel is owned by several persons, one part owner cannot maintain replevin for it, for the reason that all joint owners, unless there is an agreement to the contrary, are equally entitled to the possession of the property, and neither has the right to the immediate and exclusive possession of the property as against the other.\\\" 77 C. J. S., Replevin, \\u00a7 49, p. 34. Accordingly the creditor of one cotenant secured by chattel mortgage on that cotenant's interest cannot maintain replevin against the other cotenant in possession of the common property of an indivisible character. See, 14 Am. Jur., Cotenancy, \\u00a7 77, p. 144; McDonald v. Bailey, 25 Okl. 849, 107 P. 523, 37 L. R. A. N. S. 267; Trustees of Ashland Lodge No. 63, I.O.O.F. v. Williams, 100 Wis. 223, 75 N. W. 954, 69 Am. S. R. 912; Read v. Middleton, 62 Iowa 317, 17 N. W. 532; Sheldon v. Brown, 72 Minn. 496, 75 N. W. 709.\\nThe general rules concerning replevin brought by one cotenant against another were discussed in Fines v. Bolin, 36 Neb. 621, 54 N. W. 990, where this court held that one cotenant could replevin from the other a quantity of corn because in the mass it was alike in quality and value, and was readily divisible by measure. In the discussion, however, the court stated that it was well settled that the owner of an undivided interest in a single piece of property not susceptible of division could not maintain an action against a cotenant to acquire its possession because neither has the right to the immediate and exclusive possession of the same as against the other.\\nPlaintiff, however, contends even if this rule is generally applicable that in this instance defendant has ratified the mortgage and is estopped to deny its validity and that plaintiff has an equitable lien on the mortgaged property.\\nA general demurrer admits all allegations of fact in the pleading to which it is addressed, but does not admit the pleader's conclusions of law or fact. See, In re Estate of Halstead, 154 Neb. 31, 46 N. W. 2d 779; Richter v. City of Lincoln, 136 Neb. 289, 285 N. W. 593.\\nWith this rule in mind we must examine the plaintiff's petition to determine what the defendant said or did that would constitute a ratification or estoppel. The automobile was purchased November 21, 1958, but the note and mortgage were not given until May 19, 1959, almost 6 months later. It is obvious that the loan had nothing to do with the purchase. It is alleged that Curtis Morgan represented that the proceeds were to be used for the remodeling of a farm house occupied by him and the defendant. The purpose for which it was actually used is not alleged. The petition is silent as to what was said or done by the defendant at that time' and it cannot be inferred that she agreed to the mortgage on her property, or that she then knew anything about it. It is alleged that at the time of the execution of the mortgage $3,500 was placed in an account on which the defendant could draw, but it is not- affirmatively shown that she ever drew on it. It is further alleged that defendant some 9 months later gave a check for the payment of the first installment of $1,969.64, shortly to become due. No consideration is shown for giving this check, nor are there any facts pleaded to throw light on what, if anything, the defendant said or did at that time. The plaintiff bank on which it was drawn knew at once that there were insufficient funds with which to pay it and could not have changed its position because of relying on its having been given. Though the defendant must have then known of an obligation of her husband which required this payment, it is not shown that at that time she knew of the mortgage, or that it purported to cover the entire ownership of the automobile.\\n' On the giving of the mortgage by Curtis Morgan the unity of interest became extinguished and the cotenants became tenants in common. Whiteside v. Whiteside, 159 Neb. 362, 67 N. W. 2d 141.\\n\\\"Ratification of a contract between fewer than all tenants in common and a third person, in order to be binding on the other cotenants, requires that they have full knowledge of such contract and of the facts and circumstances connected with its execution.\\\" 86 C. J. S., Tenancy in Common, \\u00a7 109, p. 517. See, also, Mathias v. Mathias, 167 Iowa 81, 149 N. W. 87. From the facts stated, it does not affirmatively appear that defendant knew the nature of the transaction between her husband and the plaintiff bank or that she assented either expressly or by implication that her interest in the automobile be bound, and hence no ratification is shown.\\n\\\"Where a tenant in common does nothing to mislead a third person, or where the conduct of the tenant is not such as to warrant a third person's reliance thereon, the tenant is not estopped to assert that he is not bound by the unauthorized acts of his cotenant.\\\" 86 C. J. S., Tenancy in Common, \\u00a7 129, p. 540. See, also, Cooper v. Brown, 143 Iowa 482, 122 N. W. 144, 136 Am. S. R. 768.\\nThe acts of the defendant as alleged in the petition cannot be said to have misled the plaintiff or estopped the defendant from asserting her rights in the common property.\\nPlaintiff cites the case of Schroeder v. Ely, 161 Neb. 252, 73 N. W. 2d 165, as authority for its contention that the actions of the defendant created an equitable lien on her interest in the automobile. The cited case was one where an elderly lady was imposed on by persons who stood in a confidential relation to her. She was prevailed upon to advance large sums of money for the express purpose of financing the purchase of real estate and the erection and furnishing of a motel thereon in which she was to have a home. The circumstances there showed fraud and overreaching justifying a court of equity in impressing an equitable lien on the property purchased with her funds. The case has no application to the one at bar nor are we able to find anything in the defendant's actions justifying a finding that such a lien existed even if this were an equitable action to impress one.\\nPlaintiff mortgagee did not have the exclusive right of possession necessary to maintain replevin against the defendant, a cotenant of the mortgagor. Neither are facts shown in the petition which establish that her interest in the mortgaged property was bound either by defendant's ratifying her husband's action or by estoppel, nor was her interest therein subject to a lien of an equitable nature whether or not such a lien could be asserted in a replevin action.\\nThe judgment of the trial court in sustaining the demurrer ore tenus was correct and is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2596052\", \"name\": \"Laddie G. Prucha, appellee, v. Department of Motor Vehicles, State of Nebraska, et al., appellants\", \"name_abbreviation\": \"Prucha v. Department of Motor Vehicles\", \"decision_date\": \"1961-06-23\", \"docket_number\": \"No. 34960\", \"first_page\": \"415\", \"last_page\": 426, \"citations\": \"172 Neb. 415\", \"volume\": \"172\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:03:04.312371+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"parties\": \"Laddie G. Prucha, appellee, v. Department of Motor Vehicles, State of Nebraska, et al., appellants.\", \"head_matter\": \"Laddie G. Prucha, appellee, v. Department of Motor Vehicles, State of Nebraska, et al., appellants.\\n110 N. W. 2d 75\\nFiled June 23, 1961.\\nNo. 34960.\\nClarence A. H. Meyer, Attorney General, and Cecil S. Brubaker, for appellants.\\nJames E. Abboud, Jr., and James J. Fitzgerald, for appellee.\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"word_count\": \"3145\", \"char_count\": \"18451\", \"text\": \"Messmore, J.\\nLaddie G. Prucha, plaintiff, perfected an appeal from an order of the Director of Motor Vehicles entered on June 13, 1960, revoking the motor vehicle operator's license of the plaintiff for failure to submit to a chemical test of his blood or urine under the provisions of sections 39-727.03 to 39-727.12, R. S. Supp., 1959. The plaintiff's petition on appeal was filed in the district court for Sarpy County on June 27, 1960, and a stay of the order of revocation was entered by that court on the same day. The defendants, Department of Motor Vehicles, State of Nebraska, and Alvin N. Scissors, Director of Motor Vehicles of the State of Nebraska, the latter hereinafter referred to as the director, filed a general demurrer to the plaintiff's petition on July 22, 1960, on the ground that the petition failed to allege facts sufficient to constitute a cause of action against such defendants. On September 2, 1960, the trial court overruled the defendants' demurrer. On October 14, 1960, the defendants filed notice of their election to stand on their demurrer. On November 4, 1960, default judgment was rendered against the defendants by the trial court, and an order was entered setting aside the order of the director revoking the motor vehicle operator's license of the plaintiff. The defendants appealed to this court.\\nThe plaintiff's petition had attached to it the transcript from the Department of Motor Vehicles of Nebraska, including the Safety Patrol intoxication report, dated May 2, 1960, which recited the plaintiff's name; the number of his driver's license; the number of his automobile license; his address; the date of his arrest, April 18, 1960, at 10:10 p.m.; the place of arrest; and the reasons for believing the person arrested was under the influence of intoxicating liquor while driving an automobile.\\nAt the time of his arrest, the plaintiff was asked if he would submit to a fluid or blood test for the purpose of determining the alcoholic content in his system, and he refused to take the test.\\nOn May 12, 1960, the director notified the plaintiff by mail of a hearing to be held before the director on June 6, 1960, at which time the plaintiff should show cause why his\\u00a1 driver's license should not be revoked. By telegram directed to the plaintiff, this hearing was reset for June 10, 1960. Thereafter, on June 13, 1960, an order of the director was entered revoking the motor vehicle operator's license of the plaintiff for a period of 1 year from the date of June 10, 1960, for failure to show cause why such license should not be revoked as a result of his failure to submit to a test as provided for in sections 39-727.03 to 39-727.12, R. S. Supp., 1959. Notice of this order was sent to the plaintiff by letter the same day. The plaintiff perfected his appeal to the district court for Sarpy County from the order of the director revoking his driver's license under the provisions of section 39-727.11, R. S. Supp., 1959, and section 60-420, R. R. S. 1943.\\nThe plaintiff's petition, insofar as necessary to be considered here, is as follows: \\\"That the defendants' decision to revoke the plaintiff's license in accordance with the afore-mentioned statute was arbitrary and capricious and in violation of the State Constitution of the State of Nebraska for the following reasons, to-wit: 1. That plaintiff was not fully advised of the consequences of failure to comply with said statute. 2. That plaintiff complained of a heart condition which prevented him from taking any blood tests. 3. That he was not convicted of the offense of operating a motor vehicle under the influence in the original court. 4. This statute violates the Due Process Clause (Section 3), and the Giving Evidence Against Oneself Clause (Section 12), both from the Bill of Rights, Constitution, State of Nebraska, 1875\\\"\\nThe plaintiff prayed for an order staying the revocation of his driver's license pending a final determination of the review by the district court, and for decree permanently setting aside and declaring null and void the order of June 10, 1960, revoking his driver's license.\\n\\\"A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.\\\" Gerard v. Steinbock, 169 Neb. 828, 101 N. W. 2d 194.\\nIn passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof. See Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N. W. 2d 150.\\nIn the instant case the plaintiff attached the transcript heretofore mentioned to his petition and made it a part of his petition, therefore, it is also to be considered in passing on the demurrer.\\nThe plaintiff raises the question that the defendants are limited to the assignment of error set forth in their brief, citing rule 8a 2 (4) of this court, and decisions in accord with this rule.\\nThe defendants' assignment of error is that the trial court erred in overruling the defendants' demurrer to the plaintiff's petition. This assignment of error specifically relates to the matters raised in the plaintiff's petition in the trial court. The plaintiff's contention is without merit.\\nThe plaintiff also contends that the overruling of the defendants' demurrer is not a final order, that it is an interlocutory order and therefore not an appealable order.\\nIn Hadden v. Aitken, 156 Neb. 215, 55 N. W. 2d 620, 35 A. L. R. 2d 1003, the defendants demurred to the petition and, upon the demurrer being overruled, elected to stand thereon. The court thereupon entered judgment for the plaintiff wherein it directed the defendants, and each of them, to suspend the order of October 30, 1951. This case related to the suspension of a motor vehicle operator's license to drive an automobile. The court also ordered that the license, registration certificate, and license plates of the plaintiff \\\"be and remain\\\" in full force and effect and that plaintiff have all the privileges evidenced thereby. The defendants appealed from this judgment.\\nIn the instant case a like situation appears. Apparently the plaintiff failed to note that a default judgment had been entered against the defendants.\\nThe plaintiff is in accord with the defendants' proposition of law in substance as follows.\\n\\\"All persons are presumed to know the general public laws of the state or country where they reside, and the legal effect of their acts.\\\" 31 C. J. S., Evidence, \\u00a7 132, p. 751.\\nThe general rule is that all persons are presumed to know and are bound to take notice of general public laws of the country or state where they reside as well as the legal effect of their acts. See, 20 Am. Jur., Evidence, \\u00a7 211, p. 208; Anderson v. MacDuff, 208 Misc. 271, 143 N. Y. S. 2d 257; People v. Kovacik, 205 Misc. 275, 128 N. Y. S. 2d 492.\\nThe language of the statute is clear and there is nothing on its face that requires the police officer to go any further than request the motorist to submit to the test. When the words of the statute are plain, clear, and distinct there is no occasion to resort to other means of interpretation to restrict or extend the meaning. The petitioner is presumed to know the law and he should acquaint himself, at least, with those laws which would affect him. See Anderson v. MacDuff, supra.\\nThe allegation of the plaintiff that he was not fully advised of the consequences of his failure to comply with the statutes does not state facts sufficient to constitute a cause of action.\\nThe law here involved is commonly referred to as the \\\"implied consent law.\\\"\\nSection 39-727.03, R. S. Supp., 1959, provides: \\\"Any person who operates or has in his actual physical control a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his blood or urine for the purpose of determining the amount of alcoholic content in his body fluid. The test shall be administered at the direction of a law enforcement officer whenever the person has been arrested for any offense involving operating a motor vehicle under the influence of alcoholic liquor in violation of a statute or a city or village ordinance when the arresting officer has reasonable grounds to believe that before his arrest the person was driving while under the influence of alcoholic liquor.\\\"\\nSection 39-727.04, R. S. Supp., 1959, provides in part: \\\"The person so arrested or taken into custody may choose whether the test so required shall be a chemical test of his blood or urine.\\\"\\nSection 39-727.08, R. S. Supp., 1959, provides: \\\"If a person so arrested shall refuse to submit to the test provided for in section 39-727.03, it shall not be given, and the arresting officer shall make a sworn report to the Director of Motor Vehicles stating that he had reasonable grounds to believe that the person was operating or in actual physical control of a motor vehicle upon a public highway while he was under the influence of alcoholic liquor, and the facts upon which such belief was based, that such person was placed under arrest, and that he refused to submit to the test.\\\"\\nSection 39-727.09, R. S. Supp., 1959, provides in part: \\\"Upon receipt of the officer's report of such refusal, the Director of Motor Vehicles shall notify such person of a date for hearing before him as to the reasonableness of the refusal to submit to the test. The notice of hearing shall be served by the director by mailing it to such-person by certified or registered mail to the last-known residence .address of such, person, at least ten days before the hearing. After granting .the person an opportunity to be heard on such issue, if it is not shown to the director that such refusal to submit to such chemical test was reasonable, the director shall summarily revoke the motor vehicle operator's license of such person, for a period of one year from the date of such order.\\\"\\nSection 39-727.10, R. S. Supp., 1959, provides in part: \\\"If the Director of Motor Vehicles revokes the operator's license under the provisions of sections 39-727.03 to 39-727.12, he shall reduce his order of revocation to writing, and shall notify the person in writing of the revocation.\\\"\\nSection 39-727.11, R. S. Supp., 1959, provides in part: \\\"Any person who feels himself aggrieved because of such revocation may appeal therefrom to the district court of the county where the alleged events occurred for which he was arrested, in the manner prescribed in section 60-420.\\\"\\nApparently, from the second allegation of the plaintiff's petition he claims that the revocation of his license was arbitrary and capricious and in violation of the Constitution of the State of Nebraska because the plaintiff complained of a heart condition which prevented him from taking any blood tests, therefore his refusal to do so was reasonable.\\nWe have set forth the provisions of section 39-727.03, R. S. Supp., 1959. The mere fact that the plaintiff complained of something does not allege such fact to be so, and was not a pleading of the ultimate fact that such condition would prevent the taking of the test. As shown by the above-cited sections of the statute, there was an alternative method for the testing of the alcoholic content of the body fluid, by testing the urine.\\nThe allegation that the plaintiff complained of a heart condition which prevented him from taking a blood test, implying that that was a reasonable excuse for not taking the test, is an allegation of a conclusion which is erroneous under the terms of the statute.\\nThe plaintiff in his petition alleges that the revocation of his driver's license was arbitrary and capricious because he was not convicted of an offense of operating a motor vehicle under the influence in the original court. The fact of acquittal of a criminal charge of operating a motor vehicle while under the influence of alcoholic liquor does not have any bearing upon a proceeding before the director for the revocation of a driver's license under the provisions of law separate and distinct from criminal statutes.\\nAs stated in Anderson v. MacDuff, supra, where a person who refused to submit to a blood test at the time he was arrested and charged with driving while intoxicated was acquitted upon trial of that charge, subsequent revocation of his driver's license under another law providing for licensing penalty was not precluded by the prior acquittal. The court further said that operation of a motor vehicle on the highways is a privilege and the Legislature may prescribe sanctions and conditions on which that privilege is exercised, and may even deny that privilege, once acquired, in order to prevent unsafe driving on the highways. The order of Commissioner of Motor Vehicles, revoking driver's license of petitioner because of his refusal to submit to blood test at time he was arrested for driving while intoxicated, was not arbitrary or capricious. See, also, People v. Kovacik, supra; Combes v. Kelly, 2 Misc. 2d 491, 152 N. Y. S. 2d 934; People v. Butts, 21 Misc. 2d 799, 201 N. Y. S. 2d 926.\\nArticle I, section 3, of the Constitution of this state provides: \\\"No person shall be deprived of life, liberty, or property, without due process of law.\\\"\\nA license to operate an automobile upon the highways of the state is a privilege and not a property right, and the power given the director to suspend such operating privilege is an administrative and not a judicial function. See Hadden v. Aitken, supra.\\nA license is a privilege and does not create property in any legal or constitutional sense. As stated in Smith v. State, 124 Neb. 587, 247 N. W. 421: \\\"A license to operate a motor vehicle is issued, not as a contract, but as a mere privilege, with the understanding that such license may be revoked for due cause by the proper authorities.\\\"\\n\\\"A license to operate an automobile is not property, but a mere privilege, the suspension of which does not deprive the licensee of his property without due process of law.\\\" 5 Am. Jur., Automobiles, \\u00a7 157, p. 593. See, also, Commonwealth v. Funk, 323 Pa. 390, 186 A. 65; Sullins v. Butler, 175 Tenn. 468, 135 S. W. 2d 930; Garford Trucking, Inc. v. Hoffman, 114 N. J. Law 522, 177 A. 882; Rawson v. Department of Licenses, 15 Wash. 2d 364, 130 P. 2d 876; Schutt v. MacDuff, 205 Misc. 43, 127 N. Y. S. 2d 116.\\nThe plaintiff's petition fails to state a cause of action wherein he is denied due process of law.\\nArticle I, section 12, of the Constitution of this state provides: \\\"No person shall be compelled, in any criminal case, to give evidence against himself,\\nThe essence of the \\\"implied consent law\\\" is that by driving a motor vehicle on the public highway, the operator consents to the taking of a chemical test to- determine the alcoholic content of his body fluid. By the act of driving his car, he has waived his constitutional privilege of self-incrimination, which has always been considered to be a privilege of a solely personal nature which may be waived. See Schutt v. MacDuff, supra.\\nIn United States v. Nesmith, 121 F. Supp. 758, it was held that the constitutional privilege against self-incrimination is restricted to oral testimony and does not preclude use of one's body or secretions thereof and their chemical analyses as evidence. The court said: \\\"The Supreme Court, in an opinion by Mr. Justice Holmes, in Holt v. United States, 218 U. S. 245, 252, 31 S. Ct. 2, 6, 54 L. Ed. 1021, definitively ruled that the privilege is restricted to oral testimony and does not preclude the use of one's body as evidence. The objection was raised that this course was a violation of the provision (the privilege against self-incrimination). Mr. Justice Holmes, after referring to this objection as an extravagant extension of the Fifth Amendment, made the following comment: 'But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' \\\" See Swingle v. United States, 151 F. 2d 512. The court further said: \\\"The law is clear, therefore, that the privilege against self-incrimination is limited to the giving of oral testimony. It does not extend to the use of the defendant's body as physical or real evidence. The conclusion is inevitable that it does not bar the use of secretions of the defendant's body and the introduction of their chemical analysis in evidence.\\\"\\nIn State v. Smith, 47 Del. 334, 91 A. 2d 188, it was held that the sole effect of protection offered by constitutional provision that in criminal prosecution the accused shall not be compelled to give evidence against himself is to prohibit employment of legal process to extract from lips of accused an admission of his guilt which will take place of other evidence, and compulsory examinations of accused persons beyond the field of oral examination, or equivalent thereof, either before or upon their trial do not violate the privilege.\\nIn State v. Berg, 76 Ariz. 96, 259 P. 2d 261, the court held: \\\"Constitutional provision against compelling any person to give evidence against himself in any criminal case is directed primarily against testimonial compulsion, that is, the extraction from a person's own lips of an admission of his guilt, and privilege protects person from any disclosure sought by legal process against him as a witness, See Annotation, 25 A. L. R. 2d 1409, for cases holding similar to those cited above.\\nThe allegation of the plaintiff that the statutes vio lated the self-incrimination clause of the state Constitution is a conclusion of law. In the light of the authorities heretofore cited, such an allegation is erroneous.\\nWe conclude that the allegations of the plaintiff's petition are insufficient to constitute a cause of action against the defendants, and the trial court erred in overruling the defendants' demurrer.\\nWe reverse the judgment and dismiss the action.\\nReversed and dismissed.\"}"
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+"{\"id\": \"2604166\", \"name\": \"Derald Prather et al., appellees, v. Don Eisenmann et al., appellants\", \"name_abbreviation\": \"Prather v. Eisenmann\", \"decision_date\": \"1978-02-01\", \"docket_number\": \"No. 41203\", \"first_page\": \"1\", \"last_page\": 12, \"citations\": \"200 Neb. 1\", \"volume\": \"200\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:49:10.395529+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, McCown, Clinton, Brodkey, and White, JJ.\", \"parties\": \"Derald Prather et al., appellees, v. Don Eisenmann et al., appellants.\", \"head_matter\": \"Derald Prather et al., appellees, v. Don Eisenmann et al., appellants.\\n261 N. W. 2d 766\\nFiled February 1, 1978.\\nNo. 41203.\\nThomas H. DeLay of Mueting, DeLay & Spittler, for appellants.\\nGeorge H. Moyer, Jr., of Moyer, Moyer & Egley, for appellees.\\nDeutsch, Jewell, Otte, Gatz, Collins & Domina, for amicus curiae.\\nHeard before White, C. J., Spencer, Boslaugh, McCown, Clinton, Brodkey, and White, JJ.\", \"word_count\": \"3190\", \"char_count\": \"19039\", \"text\": \"Spencer, J.\\nThis is an action brought by domestic well owners to enjoin the pumping of ground water from an irrigation well owned by defendants, and for damages. The District Court found defendants' withdrawal caused a loss of artesian pressure in plaintiffs' wells, interfering with their domestic appropriation.\\nThe court found the water was sufficient for all users if plaintiffs lowered their pumps to below the aquifer and defendants did not lower their pump. It permanently enjoined defendants from lowering their pump and from pumping for the period of time reasonably required by plaintiffs to lower their pumps. The court awarded plaintiffs the necessary costs of providing an assured alternative method of water supply, or a total recovery of $5,346.58. We affirm.\\nPlaintiffs Prathers are the owners of a 9-acre tract upon which they maintain their residence. The residence is supplied with water by an artesian well located on the premises. The artesian pressure was normally sufficient to force water in the well to a level 5 to 6 feet above the ground. The well was 121 feet 10 inches deep and 2 inches in diameter.\\nTwo other landowners, Furleys and Zessins, assigned their claims to Prathers. Unless designated by name hereafter, they are included in the title \\\"plaintiffs.\\\" The Furleys are the owners of a 2-acre tract. The residence on the premises is supplied with water from an artesian well 111 feet deep and 2 inches in diameter. The artesian pressure was sufficient to raise the water above the ground.\\nThe Zessins are the owners of a tract of land in the same area which is occupied by their daughter. The residence upon the premises is supplied with water by a 160-foot well with 4-inch casing and a submersible pump. The water in the Zessin well did not rise above the surface of the ground.\\nDefendants Eisenmanns purchased a 90-acre tract of land in the area in March of 1976. On July 9,1976, they completed an irrigation well on the premises. The well was 179 feet deep and had a capacity of 1,250 gallons per minute on a 2-hour test.\\nOn July 9, 1976, Eisenmanns commenced pumping from the well at an estimated rate of 650 gallons per minute. Prathers and Furleys lost the use of their wells on July 10, 1976. Zessins lost the use of their well between the evening of July 12 and the morning of July 13 when the water level dropped below the level of the submersible pump. Because of the loss of water, the Zessins' pump overheated and welded itself to the casing. Zessins were unable to dislodge the pump and were forced to drill a new well to a depth of 164 feet.\\nFollowing a stipulation by the parties, a temporary injunction was issued on July 20,1976, to permit the University of Nebraska Conservation and Survey Division to conduct certain tests on the wells. The tests consisted of pumping the irrigation well at a rate of 375 gallons per minute for 3 days, then measuring the draw down of the Eisenmanns' well and a number of other observation wells which included the three domestic wells. At the end of the pumping period the measured draw down on the Prathers' well was 61.91 feet; the Furleys' well, 65.45 feet; and the Zessins' well, 65.6 feet. The draw down of the Eisenmanns' well was 97.92 feet. All the wells recovered to the prepumping level within 11 days after cessation of pumping from the irrigation well.\\nThe two hydrologists who conducted the tests made certain findings: (1) The irrigation well and the domestic wells were drawing from the same aquifer. (2) The aquifer could be defined with reasonable scientific certainty. (3) The pumping by Eisenmanns depressed the artesian head of the domestic wells. (4) The cone of influence caused by Eisenmanns' pumping intercepted or affected the plaintiffs' wells. (5) The common aquifer from which the domestic and irrigation wells draw water is sufficient to supply both domestic and irrigation needs. (6) For plaintiffs to obtain water from their wells during periods when Eisenmanns were pumping, they would have to pump water from the top of the shale.\\nSection 46-635, R. R. S. 1943, defines \\\"ground water\\\" as: \\\" that water which occurs or moves, seeps, filters, or percolates through the ground under the surface of the land.\\\" The existence of ground water in any particular area is dependent not only on the source of the water but also on the geologic formation of the earth. The earth materials with sufficient porosity to contain significant amounts of ground water and sufficient permeability to allow its withdrawal in significant quantities are called \\\"aquifers.\\\" The upper surface of the water-saturated material is called \\\"the water table.\\\"\\nAquifers are almost always underlain by an impervious layer which prevents the water from percolating and seeping downward to such a level that it would be beyond economical reach. Two of the domestic wells involved were dependent upon artesian pressure. This results when ground water is not only underlain by impervious material but is confined between or underneath impervious layers as well. A well penetrating through one of the sur rounding impervious layers provides an escape valve through which water will flow without external force so long as sufficient artesian pressure exists.\\nBefore restating the current Nebraska law, it is well to note the various common law views concerning rights to ground water. The nonstatutory theories are classified as: (1) The common law, or English rule; (2) the reasonable use, or American rule; and (3) the correlative rights doctrine, or California rule.\\nUnder the English or common law rule, a landowner had absolute ownership of the waters under his land. He could, therefore, without liability, withdraw any quantity of water for any purpose even though the result was to drain all water from beneath surrounding lands.\\nThe American rule of reasonable use also recognized a proprietary interest of an overlying owner in the waters under his lands. \\\" ' \\\"The American, as distinguished from the English rule, is that, while the owner of the land is entitled to appropriate subterranean or other waters accumulating on his land, which thereby becomes a part of the realty, he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns, unconnected with the beneficial use of the land, especially if the exercise of such use in excess of the reasonable and beneficial use is injurious to others, who have substantial rights to the water.\\\" ' \\\" Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N. W. 2d 626 (1966). There is no preference as to use under the American rule.\\nThe California or correlative rights rule essentially provides the rights of all landowners over a common aquifer are coequal or corelative and one cannot extract more than his share of the water even for use on his own land where others' rights are injured thereby.\\nNebraska has had few decisions dealing with un derground water problems. In Olson v. City of Wahoo, 124 Neb. 802, 248 N. W. 304, our court, in 1933, enunciated a modified reasonable use rule. It said: \\\"The American rule is that the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole, and while a lesser number of states have adopted this rule, it is, in our opinion, supported by the better reasoning.'' (Italics supplied.) The portion emphasized was not a part of the American rule as enunciated in a majority of the states. Nebraska, in Olson, adopted the rule of reasonable use with the addition of the California doctrine of apportionment in time of shortage.\\nIn the subsequent case of Luchsinger v. Loup River P. P. Dist., 140 Neb. 179, 299 N. W. 549 (1941), the court's attention was directed to the fact that the Olson enunciation was dicta. The contention was made it was not binding on the defendants in that controversy. The court answered the suggestion of dicta as follows: \\\"Whatever may be thought of its applicability to the case in which the rule was adopted, it answers for itself as a sound proposition of law essential to the protection of property rights of private individuals and is consistent with the Constitution and with morality and justice.''\\nIn Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N. W. 2d 626 (1966), this court said: \\\"The rule in this state as to the rights of riparian owners is that, while the owner of land is entitled to appropriate subterranean or other waters accumulating on his land, which thereby becomes a part of the realty, he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land he owns, unconnected with the beneficial use of the land, especially if the exercise of such use in excess of the reasonable and beneficial use is injurious to others who have substantial rights to the water.\\\" This statement, which was the reasonable use doctrine, led some commentators to question whether the omission of proportionate use was intentional. It was not. Proportional use was not involved in that case. Our law remained as it was enunciated in Olson v. City of Wahoo, 124 Neb. 802, 248 N. W. 304 (1933).\\nThe question the instant case presents is one of first impression in this state. The three domestic wells of the plaintiffs do not contribute significantly to a reduction in the artesian pressure or water level of the underground aquifer. It was not until the defendants subsequently sunk and operated their irrigation well that plaintiffs lost the artesian pressure and the use of their wells.\\nThe evidence indicates defendants had a runoff of approximately 15 to 25 gallons of water per minute above the water utilized on their land. The trial court found this was in excess of a reasonable and beneficial use on their own land. It is not necessary for us to reach this issue. We do not deem it material in view of the decision we reach herein. This case must be analyzed in reference to section 46-613, R. R. S. 1943, the preferential use statute.\\nUnder the reasonable use doctrine, two neighboring landowners, each of whom is using the water on his own property overlying the common supply, can withdraw all the supply he can put to beneficial and reasonable use. What is reasonable is judged solely in relationship to the purpose of such use on the overlying land. It is not judged in relation to the needs of others. Harnsberger, Oeltjen, & Fischer, Groundwater: From Windmills to Comprehensive\\nPublic Management, 52 Neb. L. Rev. 179 at p. 205 (1973).\\nOur preference statute points the way to a solution of the present controversy. It is apparent the trial court used it with an adaptation of the rule proposed in the Tentative Draft No. 17 of section 858A of Restatement, Torts 2d (1971). That rule provides in part: \\\"\\u00a7 858A. Non-liability for use of ground water \\u2014 exceptions. A possessor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless (a) the withdrawal of water causes unreasonable harm through lowering the water table or reducing artesian pressure, The District Court found defendants' appropriation of water \\\"caused unreasonable harm to plaintiffs by lowering the water table and reducing artesian pressure.\\\"\\nThe comment in Restatement, Torts 2d, suggests the tentative rule is the American rule with its protection broadened. It is not so broad, however, as the Nebraska rule. As the comment notes, it gives more or less unrestricted freedom to the possessor of overlying land to develop and use ground water. It does not attempt to apportion the water among users except to the extent that special conditions permit it to be done on a rational basis. It gives the protection of the American rule to owners of small wells harmed by large withdrawals for use elsewhere, but extends that protection in proper cases to harm done by large withdrawals for operation on overlying lands.\\nMuch of the litigation involving users of ground water has involved the collateral effects of a withdrawal of the water rather than a division of it. There was no problem here with the artesian pressure until defendants withdrew in excess of 350 gallons per minute and lowered the water beyond the reach of the domestic wells.\\nThere is sufficient water in the aquifer for all the parties if defendants' irrigation well remains at its present level and the domestic wells are lowered to the top of the shale. The trial court found plaintiffs had been damaged to the extent of the expense necessary to lower their wells to the shale.\\nThe term reasonable use, as contemplated in the American rule, relates to the manner in which water is used upon the land of the appropriator. The interests of adjacent landowners are in issue only when the appropriator uses water in excess of the reasonable and beneficial use of it upon his land, and that excess use is injurious to the adjacent landowner.\\nThe term \\\"reasonable use\\\" as defined in the correlative rights doctrine means reasonable share of the whole. Under the correlative rights doctrine, the overlying owners have no proprietary interest in the water, and in times of shortage each overlying owner has an equal and correlative right to make beneficial use of his proportionate share of the water.\\nReasonable use, as defined in the proposed Restatement doctrine, means a balancing of the equities between the use made of the water by the subsequent appropriator versus the injury caused by that use to the prior appropriator.\\nThe Nebraska rule, as previously pointed out, is a combination of the American and the correlative rights doctrine. It must be construed, however, in the light of our preference statute, section 46-613, R. R. S. 1943. This statute provides as follows: \\\"Preference in the use of underground water shall be given to those using the water for domestic purposes. They shall have preference over those claiming it for any other purpose. Those using the water for agricultural purposes shall have the preference over those using the same for manufacturing or industrial purposes.\\n\\\"As used in this section, domestic use of ground water shall mean all uses of ground water required for human needs as it relates to health, fire control, and sanitation and shall include the use of ground water for domestic livestock as related to normal farm and ranch operations.\\\"\\nIt is our statute which distinguishes the Nebraska rule from other rules. Under the statute, the use of underground water for domestic purposes has first preference. It takes priority over all other uses. As between domestic users, however, there is no preference or priority. Every overlying owner has an equal right to a fair share of the underground water for domestic purposes. If the artesian head in the present situation had been lowered by other domestic users, plaintiffs would be entitled to no relief so long as they still could obtain water by deepening their wells. If the water became insufficient for the use of all domestic users, each domestic user would be entitled to a proportionate share of the water. All domestic users, regardless of priority in time, are entitled to a fair share of the water in the aquifer.\\nThat, however, is not the present problem. We are dealing with plaintiffs who have preferential rights. We are confronted with the situation where the appropriation by the defendants rendered the plaintiffs' well useless during the pumping period and the period of time after the pumping ceased to recharge the area so the water again reached plaintiffs' pumps. In the case of the 3-day test conducted by the hydrologists, this recharge period was 11 days. In the case of the Zessin well, the appropriation by defendants also froze the pump to the pipe and required the drilling of a new well.\\nPlaintiffs can still obtain sufficient water for domestic purposes by drilling wells to the shale. It would not have been necessary for them to incur the necessary expense to do so except for the action of defendants. Without question, plaintiffs have been damaged by the operation of defendants' well. As the trial court found, defendants' withdrawal of water caused unreasonable harm to plaintiffs by lowering the water table or reducing the artesian pressure. Plaintiffs had obtained a property right in that use so they should have a remedy for their damage.\\nThe remedy devised by the trial court presents a very equitable solution. It reimburses the plaintiffs only for the expense they were forced to incur because of the action of the defendants. Plaintiffs' wells were very adequate for their own purposes. Their use of water for domestic purposes took precedence over the appropriation for agricultural purposes by the defendants. Plaintiffs had a valuable property right in the extraction of water for domestic purposes. It was solely defendants' action which deprived them of their right. Defendants, by pumping large quantities of water from the same aquifer, destroyed the artesian pressure for two of the wells. For the other well, which was deeper and used a pump, defendants' action lowered the water below the reach of the pump and the resultant heat froze the pump to the pipe. The only way plaintiffs could be assured of water for domestic purposes was to drill wells to the shale. This expense was thrust upon plaintiffs solely as a consequence of defendants' action in destroying plaintiffs' artesian pressure and lowering the water below the reach of their domestic wells. Plaintiffs' right to the extraction of water from their existing wells was appropriated or destroyed by the action of defendants. What should be the extent of plaintiffs' damage? Certainly it should be the cost of restoring or obtaining what plaintiffs had before it was appropriated by defendants' action.\\nThe measure of recovery in all civil cases is compensation for the injury sustained. Abel v. Conover, 170 Neb. 926, 104 N. W. 2d 684 (1960). We hold the defendants are liable for the necessary and reasonable expense to restore what plaintiffs lost by de dants' action. This is the result reached by the trial judge, and we affirm the judgment rendered.\\nThe solution devised by the District Court is the correct one. The judgment is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2605258\", \"name\": \"John J. Hanley et al., appellants and cross-appellees, v. Nellie House Montgomery Craven et al., appellees and cross-appellees, Olive Shoults Rosenberger et al., appellees and cross-appellants, Impleaded with Arthur F. Mullen et al., appellants and cross-appellees\", \"name_abbreviation\": \"Hanley v. Craven\", \"decision_date\": \"1978-02-15\", \"docket_number\": \"No. 41249\", \"first_page\": \"81\", \"last_page\": 102, \"citations\": \"200 Neb. 81\", \"volume\": \"200\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:49:10.395529+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, McCown, Brodkey, and White, JJ., and Ronin, District Judge.\", \"parties\": \"John J. Hanley et al., appellants and cross-appellees, v. Nellie House Montgomery Craven et al., appellees and cross-appellees, Olive Shoults Rosenberger et al., appellees and cross-appellants, Impleaded with Arthur F. Mullen et al., appellants and cross-appellees.\", \"head_matter\": \"John J. Hanley et al., appellants and cross-appellees, v. Nellie House Montgomery Craven et al., appellees and cross-appellees, Olive Shoults Rosenberger et al., appellees and cross-appellants, Impleaded with Arthur F. Mullen et al., appellants and cross-appellees.\\n263 N. W. 2d 79\\nFiled February 15, 1978.\\nNo. 41249.\\nEdmund D. McEachen and Michael G. Lessman of Baird, Holm, McEachen, Pedersen, Hamman & Haggart, Bernard T. Pipher, Thomas C. Emery, and Kenneth H. Beckenhauer of Beckenhauer & Beckenhauer, for appellants and cross-appellees.\\nWarren S. Zweiback of Zweiback, Brady, Kasher, Festerson & Pavel, and Daniel J. Duffy of Cassem, Tierney, Adams & Gotch, for appellees and crossappellees.\\nWarren S. Zweiback of Zweiback, Brady, Kasher, Festerson & Pavel, for appellees and cross-appellants.\\nHeard before White, C. J., Spencer, Boslaugh, McCown, Brodkey, and White, JJ., and Ronin, District Judge.\", \"word_count\": \"6816\", \"char_count\": \"38887\", \"text\": \"Spencer, J.\\nThis is an action to quiet title in certain lands in Thurston and Cuming Counties; to establish the ownership of certain fractional interests in the land; and to enter a decree of partition. The case involves the validity of certain quit claim deeds given pursuant to contracts for attorneys' fees. Their validity in the first instance requires an answer to the question as to whether the remainder interest in the property vested at the time of the death of the testator in 1926, or at the death of the life tenant in 1974. The original action was filed September 19, 1974, more than 3 months prior to the death of the life tenant. Trial was had on an amended petition filed after her death.\\nThe trial court determined the remainder interest in the real estate vested at the time of the death of the testator. However, the court held the deeds were unenforceable due to the failure of those claiming thereunder to prove enforcement would not be unfair or inequitable. We reverse the judgment of the trial court but sustain the dismissal of the plaintiffs' action.\\nJohn R. House died testate December 24, 1926, seized of the land in question, as well as other property. The other property not involved herein was devised to his wife Emma House, who survived him. The real estate involved herein was covered by paragraph Third of his will. So far as material, it provides as follows:\\n\\\"Third, I give, devise and bequeath to my beloved daughter, Nellie House Montgomery Craven, all the income over and above the taxes, and necessary expenses or upkeep during her lifetime from the following described real estate: (legal description of the land involved here.)\\n\\\"I give, devise and bequeath the land described in the foregoing paragraph to my executor in trust, to pay said income therefrom to my said daughter. If my said daughter die without issue, then said real estate described in this pargraph shall descend at her death to my heirs-at-law, by blood relation. If my said daughter dies leaving issue then said real estate is to go to her issue absolutely.\\n\\\" it being my intention hereby to convey and devise unto my executor the above described real estate from which my said daughter is to get the net income, in trust, for the payment of said income to my daughter during her life and at her death without issue surviving her, said real estate shall descend to my heirs-at-law who are related to me by blood, and that if she die leaving issue surviving her, then said real estate shall descend to her lineal heirs-at-law absolutely in fee simple.\\\"\\nAt the time of his death, John R. House was survived by the following blood relatives: His daughter Nellie; his nephews, Arthur David House and John Jacob House, sons of his deceased brother Jacob House; his nephew Joseph E. House, son of his deceased brother Joseph House; and his nieces, Alice House Shoults and Lizzie House Shoults, daughters of his deceased brother Edward House. At the date of the death of John R. House, his only issue, Nellie House Montgomery Craven, was childless. She died without issue at 91 years of age, on December 29, 1974.\\nThe will of John R. House was admitted to probate in the county court of Thurston County on February 28, 1927. The probate continued without incident until October 15, 1929. At that time, more than a year and a half after the will was admitted to probate, the daughter instituted an action in county court to revoke the order of probate. This began extended litigation over the probate of the will which finally brought the matter before this court in the case entitled In re Estate of House, 129 Neb. 838, 263 N. W. 389 (1935).\\nIt was as the result of this will contest litigation that ancestors of the plaintiffs acquired the deeds under which they are claiming an interest in the land. The plaintiffs are the devisees and grantees by mesne conveyances of James H. Hanley, John C. Mullen, and T. Joseph Byrth, who were the attorneys engaged by the remaindermen to resist the setting aside of the probate of the will. The HanleyMullen representation and appearances in the will contest litigation began with pleadings filed in the county court of Thurston County on December 11, 1929, on behalf of nieces Alice House Shoults and Lizzie House Shoults, resisting Nellie Craven's petition to revoke the order of probate. Pleadings were filed on behalf of the nephews Joseph E. House and Arthur David House by the Hanley-Mullen representation on January 7, 1930. No court appearances were made by the Hanley-Mullen representation on behalf of the nephew John Jacob House.\\nThe fee contracts in evidence, providing for an interest in the remainder interest of the heirs, were drawn by James Hanley and are identical in terminology with the exception of the signature line, the gender, the date and place of execution, and except that the fee contract signed by Joseph E. House had varying provisions which will be hereafter noted. The basic contract in its relevant parts provided as follows:\\n\\\"Whereas, the undersigned is a blood relation and one of the heirs of John R. House, deceased; and\\n\\\"Whereas, the said John R. House, prior to his death and on or about the 23d of December, 1926, made a last will and testament, the third paragraph of which will is as follows:\\n\\\"Whereas, Nellie House Montgomery Craven, the daughter of said John R. House, mentioned in said paragraph three of said will is childless and will die without issue\\n\\\"Whereas, the purpose of the proceeding now pending in the County Court of Thurston County, Ne- > braska is to deprive the undersigned blood relation and heir of the said John R. House of the interest, right and title that she (he) has in and by virtue of the provisions of the will of the said John R. House; and\\n\\\"Whereas, the undersigned is the niece (nephew) of the said John R. House, deceased, and is interested in said estate;\\n\\\"THEREFORE, it is agreed by and between the said (niece or nephew) of (city and state) party of the first part, and the said James H. Hanley of Omaha, Nebraska, party of the second part, WITNESS-ETH:\\n\\\"That the party of the first part does employ and retain the party of the second part to act as attorney for the party of the first part and the said party of the second part is to have full and complete control over said litigation; that no settlement or compromise shall be made, either by the party of the first part or by the party of the second part, without the written consent of the other.\\n\\\"That the party of the first part is to pay to the said party of the second part, as fees for his services in the County Court of Thurston County, Nebraska, a sum equal to one-third of the amount received or recovered by the party of the first part under and by virtue of the provisions of the will of the said John R. House, deceased, and, in the event the said proceedings are appealed, transferred or removed from said County Court of Thurston County, Nebraska to another court or courts, then the party of the first part shall pay to the party of the second part, a sum equal to one-half the amount received by the party of the first part under the provisions of the will of the said John R. House, and that said fees shall be a lien upon whatever interest or rights the party of the first part has or may have in the property described in the third paragraph of the will of the said John R. House, deceased.\\n\\\" and that the said party of the first part does by these presents grant and confirm to the party of the second part an interest in and a lien upon the property described in the third paragraph of the will of the said John R. House, deceased, for the amount due to the party of the second part for services rendered as attorney for the said party of the first part.\\n\\\"Dated this_day of_, 19_, at_.\\n\\\"(signed by niece or nephew)\\n\\\"Party of the First Part\\n\\\"/s/ James H. Hanley\\n\\\"Party of the Second Part.\\\"\\nThe contract with Joseph E. House provided for a flat fee of: \\\"a sum equal to one-half of the amount received or recovered by (him) by virtue of the will .\\\" It went on to provide that the fee was to be split \\\"one-third of said fee to said T. Joseph Byrth and two-thirds of said fee to said James H. Hanley regardless of the amount involved.\\\"\\nThe dates the fee contracts were executed by each niece and nephew are as follows:\\nA. Lizzie November 29, 1929\\nB. Alice November 29, 1929\\nC. Joseph February 20, 1930\\nD. Arthur March 21, 1931\\nE. John Jacob December 17, 1933\\nAppellees urge the invalidity of the contracts because they were executed after the attorney-client relationship had commenced, and there was no compelling proof of their fairness.\\nNellie's petition to revoke the probate was grounded on her allegation that the executor and his attorney intentionally and fraudulently concealed from her the mental and physical incompetency of the testator to make the will. The will was executed December 23, 1926, the day before his death. The nature of the instrument indicates a death bed document. Nellie alleged she brought the action immediately upon the discovery of the facts as to the incompetency of the testator. The county court, on December 11, 1929, entered a decree revoking the order admitting the will to probate. It subsequently found the instrument was not the last will and testament of John R. House. The case was appealed to the District Court where it was tried twice. In the first trial the court ruled the case should be tried to the jury on the contest of the will. It was so tried, and the jury disagreed. In the second trial the judge followed the same procedure, and the jury returned a verdict finding the will to be the last will of John R. House, deceased. The judge ordered the will should stand as originally admitted to probate. That decision was appealed to this court. This court held the cause never reached the stage where it was necessary to submit any feature of it to the jury. The issue to be first decided in the District Court was whether the county court was justified in revoking the probate. This court affirmed the decision that the will should stand as originally probated.\\nAfter the decision of this court on November 15, 1935, certain of the nephews and nieces, and their respective spouses, executed the quit claim deeds which plaintiffs seek to enforce. Alice Shoults and Lizzie Shoults executed the same quit claim deed, dated and acknowledged January 17,1936, conveying an undivided one-half of all right, title, interest, estate, claim, and demand both at law and equity in the real estate, to James H. Hanley and John C. Mullen.\\nArthur executed and acknowledged a quit claim deed on May 20, 1939, conveying one-half of the right, title, interest, estate, or claim and demand, both at law and in equity of an undivided one-half interest in the real estate in question.\\nJoseph executed and acknowledged a quit claim deed on January 15, 1936, conveying an undivided 2/6ths interest to James H. Hanley and Arthur F. Mullen, and an undivided l/6th interest to T. Joseph Byrth \\\"of all our right, title, interest, estate, claim and demand both at law and in equity, of, in, and to the real estate\\\" involved herein.\\nJohn Jacob House did not execute any deed in favor of the attorneys. By the quit claim deeds the attorneys ostensibly acquired a 35 percent interest in the remainder of the trust property. They acquired y2 of the purported interests of Alice and Lizzie; y2 of the interest of Joseph; and 14 of the interest of Arthur, or 21/60ths of the interests of the nephews and nieces.\\nOn July 2, 1936, Hanley and Mullen filed an action in the federal District Court at Omaha, Nebraska, for Alice House Shoults, Lizzie House Shoults, Arthur D. House, John J. House, and Joseph E. House, against Nellie House Montgomery Craven, Emma A. House, William T. Craven as administrator of the estate of John R. House, deceased, and Paul A. Pinion as executor and trustee of the estate of John R. House, deceased, defendants, seeking a judgment of $30,000 for expenses and attorneys' fees incurred by plaintiffs by reason of the fact that defendants attempted to set aside the probate of the will of John R. House, deceased. Based upon the 1926 expectancy tables, the remainder interest would have had a value of approximately $50,000. The plaintiffs alleged that in the event they did not survive the defendant Nellie House Montgomery Craven they would never receive any part of said estate and it would be inequitable and unjust for them to pay their attorneys for the services rendered as proponents of the will of John R. House, deceased. On March 29, 1937, Hanley and Mullen, joined by T. Joseph Byrth, filed a petition of intervention in the action, in which Hanley and Mullen were representing the plaintiffs, alleging that they were entitled to compensation for their services in the full amount of the consideration stipulated in their several contracts of employment. The interveners prayed that a judgment be entered in their favor against defendants; that a lien be impressed upon the trust estate in an amount equal to the difference between the amount of judgment assessed against defendants and the full value of interveners' services as agreed upon by the plaintiffs and interveners.\\nJudgment was rendered against the defendants on August 12, 1937, in the amount of $19,179.75, or $17,500 plus costs incurred of $1,679.75. This judgment was appealed to the Circuit Court of Appeals, which on August 10, 1938, affirmed the judgment as to the court costs but found the fee allowed by the federal District Court to be excessive. The Circuit Court found a proper fee for the services rendered was $7,500. The Circuit Court specifically found the federal District Court had estimated the amount of property involved as being the value of the entire estate. This determination it held to be erroneous. It held the only property involved was the trust property. It found the value of the land at the death of the testator passing into the trust was about $106,000. Judgment was entered on the mandate on the 23rd day of September 1938, for $9,793.27, being $1,679.75 for expenses advanced by the plaintiffs, $7,500 attorneys' fees, and the sum of $613.52 as interest on the sum of $9,179.75 from August 12, 1937, to September 23, 1938. This amount was collected by the attorneys. Appellees argue this represented payment in full for the services rendered by the attorneys.\\nTo put the case in proper perspective, it is now necessary to consider the exceptions of the plaintiffs-appellants who claim under the respective quit claim deeds. They assign as error: (1) The failure of the District Court to establish their claim of a 35 percent interest in the real estate; (2) the failure to hold that as against the successor in title under the quit claim deeds the descendants of the grantors of the deeds were barred by the statute of limitations; and (3) the failure to find that even if it was appropriate to look behind the deeds to the contingent fee contracts and their execution and to place the burden of proof upon the successors in interest, the plaintiffs met their burden of proof on such issue.\\nThe heirs of Alice House Shoults as a class allege the District Court decided all issues correctly.\\nAppellees Robert F. House and James Joseph House assign as error: (1) The failure of the court to hold title to the subject property vested only in the heirs-at-law by blood relation of John R. House, determined as of the date of the death of Nellie House Montgomery Craven, December 29, 1974; (2) the failure to hold the Hanley-Mullen-Byrth interests are barred from recovery by reason of the statute of limitations; (3) the failure to hold the HanleyMullen-Byrth interests had been paid everything properly due them; and (4) the failure to hold the grandchildren of deceased brothers of John R. House, who survived Nellie Craven, should take the property described in paragraph Third of the will of John R. House per capita to the exclusion of great grandchildren of deceased brothers.\\nThe appellees, descendants of Lizzie House Shoults, filed a brief as appellees and a brief on cross-appeal. In their cross-appeal they assign as error the failure of the District Court: (1) To hold title to the subject property vested in the heirs-at-law by blood relation of John R. House, determined as of the date of December 29, 1974; (2) to hold the Hanley-Mullen-Byrth interests barred by reason of the statute of limitations; (3) to hold the HanleyMullen-Byrth interests have been paid everything properly due them; and (4) to hold the grandchildren of deceased brothers of John R. House, who survived Nellie Craven, should take the property described in paragraph Three of the will of John R. House per capita to the exclusion of great grandchildren of deceased brothers.\\nThe threshold legal issue presented herein is the date of the vesting of the remainder interest. The trial court found it vested on December 24, 1926, the date of the death of John R. House, in Arthur David House, John Jacob House, Joseph E. House, Lizzie House Shoults, and Alice House Shoults, each acquiring an undivided one-fifth interest on said date. This conclusion is erroneous and is reversed.\\nWe have repeatedly held the law favors the early vesting of estates and a remainder will be declared a vested one unless a contrary intent is apparent from the will. Berning v. National Bank of Com. Tr. & Sav., 176 Neb. 856, 127 N. W. 2d 723 (1964). In this instance we believe a contrary intent is apparent.\\nAppellees argue it was the intention of the testator to provide for vesting at the death of his daughter. They argue that otherwise she would be his heir-at-law by blood relation. The appellants contend, by the terms of the will, the testator was excluding his daughter from the term \\\"heir-at-law by blood relation.\\\" That contingency was only to be operative if the daughter died without issue.\\nIn Wilkins v. Rowan, 107 Neb. 180, 185 N. W. 437, filed November 17, 1921, or 5 years previous to the will in question, this court said: \\\"The policy of the law has always been to look with favor upon the early vesting of estates, and a remainder will never be held to be contingent if it can reasonably be held to be a vested remainder.\\\" The following quotations from that case are pertinent herein: \\\"1 Schouler, Wills, Executors and Administrators (5th ed.) sec. 562, states: 'In short the law does not favor the abeyance of estates but estates by way of remainder vest at the earliest period possible, unless the will shows a contrary intention. And vested interests liable to devestment are preferred in construction to interests contingent.'\\n\\\"2 Alexander, Commentaries on Wills, sec. 1005, states: 'It is not the certainty of possession or enjoyment which distinguishes a vested remainder, hut the certainty of the right of future possession or enjoyment if the remainderman, who is ascertained, lives until the determination of the preceding estate. Where the devise is to the remainderman \\\"from and after\\\" or \\\"after\\\" or \\\"at\\\" or \\\"on\\\" the death of the life tenant, or words of similar import are employed, such expressions are construed as relating to the time of the enjoyment of the estate and not as to its vesting, and such remainder is a vested one. The uncertainty as to whether or not the remainderman will live to come into actual possession or enjoyment of the estate does not make the remainder contingent, for that is an uncertainty which attaches to all remainders.' \\\"\\nBecause the provision for the daughter involves a testamentary trust, appellees take comfort from a line of Nebraska cases involving testamentary trusts, such as In re Estate of Mooney, 131 Neb. 52, 267 N. W. 196 (1936). There, a testamentary trust was created for the benefit of the testator's son but the will made no provision for the disposition of the estate upon the death of the son. This court held the testator did not die intestate as to any of his estate and announced the rule that upon the failure of an express trust the trustee holds the trust estate upon a resulting trust for the heirs of the testator as of the date of the failure of the trust. This was the death of the son.\\nIn Dennis v. Omaha National Bank, 153 Neb. 865, 46 N. W. 2d 606 (1951), the corpus was to vest absolutely in the issue or descendants of the children, all of whom died without issue. The court determined that the testator in establishing the trust devised all his estate, and the income therefrom as well, to the trustee, which of necessity vested in the trustee the whole estate or full title in fee simple, including the title of the then uncertain and unascertained remaindermen until they were ascertained at the termination of the trust.\\nIn Applegate v. Brown, 168 Neb. 190, 95 N. W. 2d 341 (1959), the will directed that the estate be reduced to cash and the trustees make investments and pay the income to certain beneficiaries. No provision was made for the disposition of the corpus of the trust. This court held the corpus passed to testator's heirs determined as of the date of the termination of the trust.\\nAbbott v. Continental Nat. Bank, 169 Neb. 147, 98 N. W. 2d 804 (1959), is closer on its facts to the present case. There the will set up a trust for the benefit of the testator's wife and directed the trustee to pay the income of the trust fund to her during life \\\"and upon her death to pay the principal thereof to my legal heirs.'' The wife brought an action to determine her interest in the corpus of the trust. The author of this opinion, who was then the trial judge in Abbott, held she had no interest in the corpus of the trust; and that on her death it would pass to the testator's brothers and sisters in whom it vested at his death. This court affirmed the portion of the judgment holding she had no interest in the corpus, but reversed the trial court on the time of vesting. This court held the heirs of the testator were to be determined at the death of the wife and the termination of the trust. Appellees House argue Abbott is controlling herein.\\nAppellants take comfort from and rely on Goodrich v. Bonham, 142 Neb. 489, 6 N. W. 2d 788 (1942). There testator devised certain real estate to his son in trust to pay the income to his daughter, subject to the payment of certain expenses. Upon the death of his daughter, title to the property was to vest in fee simple in his son, the trustee. In case of the death of his son before his daughter, he requested the appointment of some suitable person as trustee to con tinue the trust. The son predeceased the daughter, but prior to his death had been adjudged a bankrupt. In the bankruptcy proceedings he scheduled as real estate owned by him the \\\"reversionary interest\\\" in the property in question. Defendant Bonham purchased the son's interest from the trustee in bankruptcy and received a deed for it. The plaintiffs, testator's heirs, brought an action to construe the will and to quiet the title to the property in them, contending that when the son predeceased the daughter his contingent interest lapsed and that Bonham took nothing under the deed from the trustee in bankruptcy. Bonham's demurrer was sustained and the judgment of dismissal affirmed in this court.\\nThis court in Goodrich followed certain rules for the construction of wills: \\\" the basic rule is that the testator's intent must be determined from the language used in the will, and, when so ascertained, that intent must be given effect, if it is not contrary to law.\\n\\\"In construing a will, it is presumed that the testator intended to dispose of his entire estate, unless the contrary is apparent from the will itself.\\\"\\nIn Goodrich, this court held it was clear from an analysis of the will as a whole that testator intended to create a life estate in trust for his daughter and a remainder in fee simple to the son in the lot in question. It followed the policy that the law looks with favor upon the early vesting of estates and a remainder will never be held to be contingent if it can reasonably be held to be a vested remainder. Goodrich, however, is distinguishable from the present case on the fact that the son was specifically named as the remainderman and was the trustee. There was no question as to the intent of the testator. The court quoted the following from DeWitt v. Searles, 123 Neb. 129, 242 N. W. 370 (1932): \\\" 'Testators are ordinarily and primarily concerned in the com mencement, continuance and termination of the enjoyment of property by them devised and bequeathed. Apart from statute, the weight of authority recognizes this fact, and, when a contrary intent is not clearly expressed, construes such expressions as \\\"upon the death of\\\" as, in effect, related to and affecting the enjoyment of property, rather than establishing and vesting technical estates and involved titles.' \\\"\\nTestator's will was made in his last illness, the day before his death. It was written in longhand on a will form, with an attached sheet, apparently by one of the witnesses, one of whom was an attorney. It made ample provision for testator's wife. It then gave, devised, and bequeathed to the daughter all the income over and above taxes and necessary expenses or upkeep during her lifetime from certain specifically described property. It then gave, devised, and bequeathed that income-producing property to his executor in trust to pay the income to the daughter.\\nWe are concerned with the following provisions: \\\"If my said daughter die without issue, then said real estate described in this paragraph shall descend at her death to my heirs-at-law by blood relation. If my said daughter dies leaving issue then said real estate is to go to her issue absolutely.\\\" Later in the will he stated: \\\" it being my intention hereby to convey and devise unto my executor the above described real estate from which my said daughter is to get the net income, in trust, for the payment of said income to my daughter during her life and at her death without issue surviving her, said real estate shall descend to my heirs-at-law who are related to me by blood, and that if she die leaving issue surviving her, then said real estate shall descend to her lineal heirs-at-law absolutely in fee simple.\\\"\\nWe conclude Goodrich is not controlling on the facts herein. It is further distinguishable upon an aspect of the case which, although mentioned by the appellees, was neglected in their research of the authorities. This aspect is one of first impression in this state. We refer to the fact that Nellie, the daughter of the decedent, was his sole issue at his death and under our statute was the sole heir-at-law related to him by blood.\\nDetermining the time of the vesting of the remainder in this instance is a difficult problem. If we distinguish the Abbott case, which appellees House argue is controlling, it is possible to find authority going either way in other jurisdictions. However, Restatement on the Law of Property has adopted the rule that an incongruity in this situation is present if we follow the rule applied by the trial court. Restatement, Property, \\u00a7 308, comment k, p. 1715, states in part: \\\"k. Contrary intent \\u2014 Postponing time of statute's application \\u2014 Prior interest in sole heir or next of kin. If a person to whom a prior interest in the subject matter of the conveyance has been given is the sole heir of the designated ancestor at the death of such ancestor, there is incongruity in also giving such person all the interest under the limitation to 'heirs' or 'next of kin.' The incongruity is especially great when a will conveys property 'to B and his heirs but if B dies without issue to my heirs' and B is the sole heir of A. The incongruity is almost as great when A, by will, conveys property 'to B for life then to my heirs' and B is the sole heir of A. Thus, the fact that in such cases, B is the sole heir of A at the death of A tends to establish that A intended his heirs to be ascertained as of the death of B, so that B is prevented from sharing in the limitation to the heirs of A.\\\"\\nThe Maine court, in a case closely analogous on the facts to the instant one, in spite of its early vesting rule, held the determination of heirship was to be made at the death of the life beneficiary. In that case, Merrill Trust Co. v. Perkins, 142 Me. 363, 53 A. 2d 260 (1947), testator devised the residue of his estate in trust for the benefit of his granddaughter. He provided if she should die leaving issue then the remaining trust estate was to go to such issue. If she left no issue, then the remainder should go to those persons to whom it would be distributed and to whom it would pass by descent under the statutes of the State of Maine regulating descent and distribution of intestate estates. The granddaughter died in 1945 without issue. The Maine court made no reference to the Restatement rule or the possible incongruity. It cited English cases, as well as prior decisions of its own, in support of the principle that in such situation it is the intent of the testator that the heirs who take such contingent remainder be determined as of the date of the death of the life tenant.\\nThe same rule was applied in an analogous Missouri case, Irvine v. Ross, 339 Mo. 692, 98 S. W. 2d 763 (1936). The testator in effect bequeathed to his daughter property for her life and upon her death, without issue surviving, the property would go to the heirs of the testator. The court stated that since the daughter was the sole heir apparent at the time the testator made his will, it seemed clear that he had intended her to take a life estate and the remainder to go to her descendants if she had any, but if not, to the heirs of the testator taken as of the time of her death and hence his intention as gathered from all the dispositive clauses of the will was not to use the word \\\"heirs\\\" in its technical sense as meaning those living at the decease of the testator.\\nIn Jones v. Petrie, 156 Kan. 241, 132 P. 2d 396 (1943), testator devised land to his widow for life with the remainder at her death to be divided among the other heirs \\\"of my wife and myself, the heirs of my wife to take a one-half (y2) interest and my heirs to take the other one-half (y2) interest, and I give and bequeath such remainder to such heirs of myself and my wife.\\\" In a partition action to deter mine the rights of the parties, the court held that the testator intended to create only one remainder estate vesting at the death of his wife, one-half in her heirs and one-half in the testator's heirs at said time. It reasoned the testator must have known that his wife was his heir if she survived him, and that he did not intend the remainder to vest until the death of his wife.\\nIn a Wisconsin case, In re Latimer's Will, 266 Wis. 158, 63 N. W. 2d 65 (1954), the will provided for a limitation over to the heirs of the testatrix and the heirs of her deceased husband following the expiration of a life estate. The granddaughter, who was the life beneficiary, was also the sole heir-at-law of testatrix' husband. The Wisconsin court held: \\\" 'If a person to whom a prior interest in the subject matter of the conveyance has been given is the sole heir of the designated ancestor at the death of such ancestor, there is an incongruity in also giving such person all the interest under the limitation to 'heirs' or 'next of kin.' \\\" Thus to avoid the incongruity, the determination of the class of persons who qualify as such heirs is ordinarily to be made as of the death of the taker of the prior interest.\\nThe Wisconsin court quoted Restatement and made the following observation: \\\"Professor Lewis M. Simes, author of The Law of Future Interests, and one of the advisors on Property to the American Law Institute, is in agreement with the principle adopted by the Restatement. See 2 Simes, Law of Future Interests, p. 234, sec. 422, wherein Simes states: 'Where the donee of the possessory interest is the sole heir of the testator and there is a future interest to the testator's heirs, the situation is more difficult of solution. Here the heir cannot be excluded if we determine the testator's heirs as of the testator's death, since, if that were done, there would be no one but the sole heir to take the future interest; and, if he is excluded, no one is left. The only way to exclude him is to determine heirship as of a time subsequent to the testator's death and thus include a different group of persons in the class.' \\\"\\nAs this court has said many times, the first consideration in construing a will is to determine the testator's intent and a basic rule in this connection is that the intent must be determined from the language used in the will. See Goodrich v. Bonham, 142 Neb. 489, 6 N. W. 2d 788 (1942).\\nIn this will, the testator set up a testamentary trust for his daughter, who was then 42 or 43 years of age, with a life expectancy of approximately 28 to 30 years. She was married but had no children. However, the possibility she could still have issue was present. If she died leaving issue, testator wanted that issue to take the property in fee simple. This was the first contingency and necessarily would have to be determined at the date of the death of the daughter. If she died without issue, testator wanted the property to go to his heirs-at-law by blood relation. At the time of his death, other than his daughter, his blood relatives were three nephews and two nieces. The testator would surely have known that these nieces and nephews were his sole blood relatives if his daughter were not considered. They were so few it would have been an easy matter to have said \\\"nephews and nieces\\\" if he was thinking in terms of the estate vesting at the time of his death. Rather, he used the term \\\"my heirs-at-law by blood relation.\\\" On two different occasions he indicated he was thinking in terms of the property vesting at the time of his daughter's death. In one place, he said \\\"shall descend at her death to my heirs-at-law, by blood relation.\\\" Where he explains his intention, he again says, \\\"and at her death without issue surviving her, said real estate shall descend to my heirs-at-law who are related to me by blood.\\\"\\nWhile ordinarily such words as \\\"at her death\\\" do not have the effect of postponing the vesting of an estate in remainder, this is not true, if when read in context, the intention of the testator would appear to be otherwise. Construed in the context of the contrary intent expressed by the Restatement rule, we hold the remainder interest herein vested at the date of the death of the daughter rather than that of the testator.\\nIn the will under consideration, John R. House had made ample provision for his wife. It is obvious, he then had it in mind to provide definitely and immediately for the comfort and support of his daughter during her lifetime. His daughter was married and it appears obvious he did not want any spouse to control the property. His daughter was in his mind first and last as the principal person to be provided for. If she had issue, which at that time was still a possibility, he wanted that issue to take the property in fee simple absolute. It also appears obvious he did not want any spouse to succeed to any part of his estate. While the ages of the nieces and nephews is not a matter of record, their ancestors, who were brothers of the testator, had predeceased him. All the nephews and nieces predeceased the testator's daughter. From the way the will is drawn, it seems obvious to us the testator in this instance was thinking of blood relations as of the date of the death of his daughter without issue.\\nCommenting further on the intent of the testator, it is obvious he was particularly desirous that none of his estate pass to those who were not blood relatives at the time of the death of his daughter without issue. If we were to follow the rule applied by the trial court and vest the remainder in the two nieces and three nephews at the time of the death of John R. House, this intent could be thwarted. All the nieces and nephews died before his daughter. Any surviving spouses of those nieces and nephews would be included as their heirs-at-law. Applying the Re statement rule and vesting the remainder interest at the death of the life beneficiary rather than at the death of the testator will carry out the intent of the testator.\\n\\u00c1s suggested at the outset, there are decisions in other jurisdictions going both ways. There are decisions in jurisdictions other than those cited herein which follow the Restatement rule. There are other jurisdictions which hold that the Restatement rule in and of itself is not sufficient to show a contrary intent. Many of these cases are collected in an Annotation at 30 A. L. R. 2d 416. With the split in authority on this issue of first impression, we take cognizance of the Restatement rule, and apply it to the facts in this case.\\nThe conclusion we reach makes it unnecessary to consider the validity of the contracts herein. It is also unnecessary to consider whether the judgment recovered in the federal court action satisfied the fee obligation. On the facts in this case, we hold the remainder interest vested at the termination of the trust, the death of the daughter, December 29, 1974.\\nWe affirm the dismissal of the action of the plaintiffs for the reasons given herein, rather than those given by the trial court. We reverse the judgment of the trial court insofar as it vested the remainder interest in the heirs of the testator determined as of the date of his death. We remand the cause to the District Court with directions to enter judgment in accordance with this opinion; to determine the heirs of the blood of John R. House as of December 29, 1974; and to enter a decree of partition for said heirs.\\nAffirmed in part, and in part REVERSED AND REMANDED WITH DIRECTIONS.\"}"
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+"{\"id\": \"2626324\", \"name\": \"Mayme Chappelear, appellee and cross-appellant, v. Grange & Farmers Insurance Co. of Blair, Nebraska, appellant and cross-appellees\", \"name_abbreviation\": \"Chappelear v. Grange & Farmers Insurance\", \"decision_date\": \"1973-10-05\", \"docket_number\": \"No. 38909\", \"first_page\": \"589\", \"last_page\": 593, \"citations\": \"190 Neb. 589\", \"volume\": \"190\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:15:45.504017+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"parties\": \"Mayme Chappelear, appellee and cross-appellant, v. Grange & Farmers Insurance Co. of Blair, Nebraska, appellant and cross-appellees.\", \"head_matter\": \"Mayme Chappelear, appellee and cross-appellant, v. Grange & Farmers Insurance Co. of Blair, Nebraska, appellant and cross-appellees.\\n210 N. W. 2d 921\\nFiled October 5, 1973.\\nNo. 38909.\\nO\\u2019Hanlon & Martin, for appellant.\\nNeil W. S'chilke of Sidner, Svoboda, Schilke & Wise-man, for appellee.\\nHeard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"word_count\": \"1110\", \"char_count\": \"6529\", \"text\": \"Newton, J.\\nThis is an action to recover windstorm damage to farm buildings from the defendant insurance company. Verdict and judgment were for plaintiff. We reverse that judgment.\\nThere are numerous assignments of error, only two of which need be considered, namely: Failure to sustain defendant's motion for a directed verdict and insufficiency of the evidence to sustain the verdict.\\nThe defendant Grange and Farmers Insurance Company is a local assessment company writing fire and wind insurance. For a number of years plaintiff and her now deceased husband had carried insurance with defendant. The policies were issued for 5-year periods. In 1962 their policy expired and plaintiff took out insurance with another company. On December 11, 1964, she took out another policy with defendant which expired December 11, 1969. The policy provides: \\\"(a) At the time of making application for insurance to the Company, the applicant shall pay a cash percentage of $2.00 for the first $1,000.00 of insurance applied for and 75c for each additional $1,000.00, or fraction thereof, of such insurance.\\\" This new policy charge was paid when the policy was delivered. Annual assessments were made on November 1st of each year to cover the preceding year's losses. Checks were produced showing payment of assessments for each of the years 1965 through 1969. Notwithstanding the above-quoted policy provision, plaintiff now contends the payment made when she obtained the policy was the premium for the year 1965 paid in advance and that each of her other payments were likewise made in advance for the ensuing year; this, notwithstanding the undisputed evidence that assessments were made in November of each year for the preceding year. On this basis she insists the\\\" jpayment made by her on December 13, 1969, was for a new policy. The evidence is clear that she never received a new policy and that none was ever issued by defend ant as no application for it was submitted. An agent of defendant did deliver to plaintiff's son an application form. The son and his wife testified that on its face it resembled the former policy in that it referred to buildings insured and amounts of insurance. Neither would state it was a policy rather than an application and the instrument was not produced. Representatives of defendant denied that a policy had been issued. There is a total failure of proof to sustain plaintiff's contention that she is entitled to recover on a new policy issued in December 1969. \\\"An insurance policy is a contract which requires an offer and acceptance to be effective.\\\" Siewerdsen v. United States F. & G. Co., 184 Neb. 870, 173 N. W. 2d 27.\\nPlaintiff contends that when she forwarded her December 13, 1969, check she asked for a new policy which she never received although the check was cashed. On this basis she alleges she was led to believe that a policy was issued and that defendant is estopped to deny it. She concedes she did not hear from defendant and states, although this is denied by defendant, that she again wrote 2 or 3 months later inquiring about the policy. Again she concedes there was no answer. The policy, as she knew, did not provide for an automatic renewal. In an effort to bolster her contention that the December 13, 1969, check was a payment in advance on a new policy, plaintiff testified that the notations \\\"Dec 11, 67 to Dec 1968\\\" on the May 13, 1967, check, \\\"Dec. 11, 1968-1969\\\" on the April 5, 1969, check, and \\\"New Policy\\\" on the December 13, 1969, check were affixed at the time she forwarded the checks. Bank microfilms of the checks conclusively disproved this. It will be noted that if plaintiff did ask for a new policy she failed to specify its terms relating to property to be insured, amount of insurance, etc.; also, that she was mistaken in her assumption that the check she forwarded was an advance premium rather than payment for an assessment past due. She does not contend that she ever executed and forwarded an application for a new policy on the company's form and she knew the old policy had expired.\\nThe following rules appear to be pertinent: \\\"The essential elements of equitable estoppel are: As to party estopped, (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts; as to the other party, (4) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.\\\" Pester v. American Family Mut. Ins. Co., 186 Neb. 793, 186 N. W. 2d 711.\\n\\\"A party may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, or fraud committed or participated in by him, or on acts or omissions induced by his own conduct, concealment, or representations.\\\" Sanitary & Improvement Dist. v. City of Ralston, 182 Neb. 63, 152 N. W. 2d 111.\\n\\\"The essential element of estoppel is a representation relied upon by the party claiming the benefit of the estoppel, which induced him to act, or refrain from acting to his prejudice.\\\" Willan v. Farrar, 176 Neb. 1, 124 N. W. 2d 699.\\nThere is nothing in this record to indicate that defendant did anything to mislead plaintiff or to sustain an estoppel. Plaintiff's sole contentions were that a new policy had been issued or that defendant was es-topped to deny that this had been done. In our view of the record, the evidence is not sufficient to sustain the verdict and the motion for a directed verdict should have been sustained.\\nThe judgment of the District Court is reversed and the cause dismissed.\\nReversed and dismissed.\"}"
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+"{\"id\": \"2630996\", \"name\": \"State of Nebraska, appellee, v. John F. Aden, appellant\", \"name_abbreviation\": \"State v. Aden\", \"decision_date\": \"1976-05-12\", \"docket_number\": \"No. 40367\", \"first_page\": \"149\", \"last_page\": 158, \"citations\": \"196 Neb. 149\", \"volume\": \"196\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T00:02:09.277411+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Spencer, McCown, Newton, Clinton, and Brodkey, JJ., and Kuns, Retired District Judge.\", \"parties\": \"State of Nebraska, appellee, v. John F. Aden, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. John F. Aden, appellant.\\n241 N. W. 2d 669\\nFiled May 12, 1976.\\nNo. 40367.\\nKirk E. Naylor, Jr., of Naylor & Keefe, for appellant.\\nPaul L. Douglas, Attorney General, and Ralph H. Gillan, for appellee.\\nHeard before Spencer, McCown, Newton, Clinton, and Brodkey, JJ., and Kuns, Retired District Judge.\", \"word_count\": \"2931\", \"char_count\": \"16910\", \"text\": \"Clinton, J.\\nThe defendant, John F. Aden, was charged with the possession of a controlled substance, to wit, marijuana, with intent to deliver. The defendant pled not guilty, waived a trial by jury, and submitted to a trial before the District Judge upon a stipulation as to what the State's testimony would be if witnesses were called. The stipulation preserved objection to the competency of the testimony. The foundation for the objection was that the evidence was obtained as a result of an unlawful arrest and search and seizure of the defendant and his motor vehicle in violation of the Fourth Amendment to the Constitution of the United States and Article I, section 7, of the Nebraska Constitution. The stipulation also provided that in ruling at trial upon the objection to the evidence offered by the State, the court could consider the record of the testimony at an earlier hearing on a motion to suppress made upon the same and other grounds.\\nThe defendant was found guilty and fined the sum of $500. He now appeals to this court and the sole issue before us whether the objection should have been sustained because the evidence admitted was seized in violation of the defendant's constitutional right to be \\\"secure\\\" in his person \\\"and effects against unreasonable searches and seizures,\\\" and must therefore be suppressed under the exclusionary rule of Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A. L. R. 2d 933; and Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726. We reverse and remand.\\nThe stipulation was to the effect that if the State produced witnesses they would testify as follows: That on March 4, 1974, Lancaster County deputy sheriff Harry Stewart stopped, without search or arrest warrant, a blue 1974 pickup with camper shell at a certain location on a public highway in rural Lancaster County; that the defendant Aden was the driver of the vehicle and was the registered owner thereof; that after stopping the vehicle the officer, without warrant, forcibly entered the locked camper shell and found, among other items not relevant or material, \\\"several brown paper grocery bags\\\"; that within two of these bags were found a total of six individually wrapped packages of vegetable material; and that if a certain state chemist were called he would testify that he was a qualified chemist for the State of Nebraska, that he had analyzed samples of the vegetable material previously mentioned, that in his opinion the material was Cannabis Sativa L, and that it weighed approximately 12 pounds. The remainder of the stipulation we set forth verbatim: \\\"IT IS FURTHER STIPULATED that for purposes of the trial of this matter, defendant objects to the introduction of any evidence or testimony on behalf of plaintiff which relates to information obtained or evidence seized pursuant to the stopping of said 1974 Ford pickup on March 4, 1974, and renews his motion to suppress the same as evidence for the alleged reasons that both the seizure of said vehicle and its occupants, and the subsequent search of said vehicle and seizure of evidence was made without probable cause and therefore violated defendant's right to be free from unreasonable searches and seizures of as guaranteed to him by the Fourth Amendment to the Constitution of the United States of America.\\n\\\"FURTHER, it is stipulated that the transcript of the suppression hearings together with the exhibits received at said hearings held in this cause on the 8th day of January, 1975, and the 5th day of February, 1975, now a part of the record in this cause, may be considered by the Court in ruling upon the foregoing objection and motion made by defendant.\\\"\\nUnder this state of the record the sole question before us is whether the record establishes that there was probable cause to justify the search and seizure without warrant. We first state the applicable rules of law. Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. State v. Irwin, 191 Neb. 169, 214 N. W. 2d 595; State v. Dussault, 193 Neb. 122, 225 N. W. 2d 558; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. It is not only the personal knowledge of the officer who makes the search and seizure which may be used to test probable cause, but added thereto may be the collective knowledge of the law enforcement agency for which the officer acts. However, in that case there must have been some communication of knowledge to or direction to act from the department or officer having that knowledge to the officer making the search and seizure. United States v. Wixom, 460. F. 2d 206; United States v. Canieso, 470 F. 2d 1224; United States v. Nieto, 510 F. 2d 1118; United States v. Del Porte, 357 F. Supp. 969, affirmed 483 F. 2d 1399.\\nAt the suppression hearing the State introduced no evidence. The defendant called two witnesses, a passen ger in the pickup at the time it was detained by the police and an officer involved in the subsequent search and seizure.\\nThe passenger witness testified as follows: That he, Aden, and another companion were driving to the rural home of a friend, one Douglas Torrence; that as they approached the residence of the friend on a public road they noted several sheriff's department vehicles in the farmyard. Seeing this they slowed down and continued on at slow speed, about 20 miles per hour. They encountered another sheriff's vehicle which put a spotlight on the pickup. Aden then stopped his pickup. In a short time a person (apparently deputy Stewart) and at least one other officer approached the pickup. They asked the defendant and his companions for identification. This they furnished. They were also told to empty their pockets and place the contents on the truck. This they did. The identifications were in order and no contraband was found. They were not at that time formally told that they were under arrest, but they were told they could not leave. About 20 minutes later one of the officers forced open the rear door of the locked camper shell. No consent for the entry was given by the defendant or his companions. The officer had first asked for a key to the camper. The defendant told him that he had no key. Before making entry the officer looked into the camper with the aid of a flashlight. After the officer forced open the camper and made some examination of material therein, the occupants of the car, including the defendant, were told they were under arrest. The witness testified that he had no knowledge of marijuana being in the camper.\\nDeputy Cox testified that he and deputy Stewart were in charge of the police operation at the Torrence farm. His testimony generally confirmed that of the previous witness. In addition he stated that after the pickup was stopped, the officers checked, apparently by radio, to see if there were any arrest warrants for the occupants of the truck and they determined that there were none. Neither he nor any of the other officers knew the defendant or his companions nor had any information about them. He stated that the occupants were patted down and nothing was found. He did not know whether the cab of the truck had been searched. Deputy Cox further testified that he was not one of the officers who made the initial stop of the vehicle. Twenty minutes elapsed before the occupants of the pickup truck were placed under arrest. As to grounds for the search he testified: \\\"Well, the circumstances of the parties arriving at this location that we were conducting a search warrant on; the information that we prior had that there was involved in this same series of transactions, drug transactions, with the occupants of the residence involved a pickup truck from Omaha; the fact that there was a large dog in the back of this truck, and the Defendant and the other occupants claimed that they had no way of getting the dog out, and when we inquired about how they were going to let the dog out to relieve himself, they said they just planned on letting him wait until they got back to Omaha; the fact that we could see in the back of the truck under the camper shell grocery sacks that contained or appeared to contain rectangular objects; and just the general demeanor of the subjects.\\\" Deputy Cox also stated that he was the officer who, prior to breaking into the truck, wiped some of the dirt from the window of the camper after which he looked in with a flashlight and observed the contents of the camper. Those included sleeping bags, a large dog, camping equipment, and two or three brown paper sacks. Near the top of one of the sacks he saw a very small portion of some plastic or opaque material. He thought he could detect through the sides of the sack a rectangular shape and with reference thereto he later said: \\\"There is nothing distinctive about it that would make it necessarily a brick of marijuana more than anything else.\\\" He further stated that in his experience vans and campers, more than other vehicles, are used to transport controlled substances.\\nIn support of its claim that the evidence shows probable cause for the search, the State relies upon Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; Carroll v. United States, supra; and State v. Romonto, 190 Neb. 825, 212 N. W. 2d 641. None of the cited authorities support the State's position and we can find none that do. Terry v. Ohio, supra, authorizes a limited search in the form of a patdown to determine whether a person whose actions are suspect is armed. This limited search is for the purpose of the officer's protection in a \\\"stop and frisk\\\" situation. In such a case when arms are found, then, of course, an arrest is warranted. That case goes no further. When, in the case now before us, the officers completed their patdown, they had no more information than that with which they had started, namely, a mere suspicion. Carroll v. United States, supra, was the first case in which the United States Supreme Court had occasion to consider the search of a motor vehicle. It held that, because of the mobility of a motor vehicle, no warrant was required if the officers had probable cause to search. The court said: \\\"It would be intolerable and unreasonable if a[n] . . . agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. . . . The meas ure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband . . . therein which is being illegally transported.\\\" In Carroll, the officers knew or had convincing evidence that the Carroll brothers, suspected of transporting illegal liquor, were bootleggers and were plying that trade in Grand Rapids, Michigan. They also had information indicating that the source of the illegal liquor supply was in Detroit which was 152 miles from Grand Rapids. The officers also knew that the car in question (the year was prior to 1923) was traveling from Detroit to Grand Rapids and, as stated in the opinion of the court: \\\"The partners in the original combination to sell liquor in Grand Rapids were together in the same automobile they had been in the night when they tried to furnish the whisky to the officers which was thus identified as part of the firm equipment.\\\" The court held there was probable cause.\\nState v. Romonto, supra, was a \\\"plain sight\\\" doctrine case. The auto in that case was stopped for driver's license and registration check and because one of the license plates was not visible. During this check the officer saw on the front seat of the car a brown ball which from experience he believed to be \\\"temple ball hashish.\\\" The officer then requested and, received permission to examine and search a jacket which was on the seat of the car. He found therein two odd pipes which had been used for smoking marijuana. There was also a strong odor of marijuana in the car. We held there was probable cause.\\nWhat does the record here show as to claimed facts and circumstances within the officers' knowledge or of which they had reasonable trustworthy information which would justify a man of reasonable caution in the belief that an offense had been or was being committed?\\nThe first claimed circumstance was the arrival of the pickup truck in the proximity of the location at which the officers were conducting a search. The record is devoid of any information as to what, if anything, the officers found in their search of the Torrence residence for which they had a warrant; there is nothing in the record, as for example the affidavit on which the warrant was issued, to show probable cause for that particular search; and there is nothing whatever to show that there were any illegal controlled substance activities being carried on at the premises. A couple of illustrations may make our point. If a person seeks entry at a bootlegging establishment, it is, no doubt, some ground for believing he may be there to patronize the bootlegger, or perhaps to make a wholesale delivery. If a person seeks entry to a house of prostitution, it may be reasonable to infer that, depending upon sex, the person is either a patron or an inmate. However, before such inferences have any foundation, it first must be shown by some evidence what the nature of the establishment is. In the record here there is no factual information whatever to show that any illegal activities, drug or otherwise, were being carried on at the farmstead and that the officers had knowledge thereof. Presumably the State introduced no such information because it had none.\\nThe next matter for consideration in determining whether there was probable cause to stop and search the pickup is the statement by deputy Cox to the effect he had information that a pickup truck from Omaha was involved in some unspecified drug operations. No source, reliable or otherwise, is given for this claim of knowledge. The next item is the fact that Aden stated he had no key to the camper and that the dog would have to stay in the camper until they returned to Omaha. What these facts show is at most a refusal to permit a search. If a refusal, for whatever reason, to permit search constitutes reasonable ground for search, then it is plain enough that we write off the Fourth Amendment to the Constitution of the United States and the comparable provisions of our own Consitution. Next, even if we assume that wiping the camper window and looking in the' camper with the use of a flashlight and seeing grocery sacks with some ill-defined rectangular shape therein comes within the perview of the plain view doctrine, we still have no fact which supports a warrantless search. The officer himself said about the shape: \\\"There is nothing distinctive about it that would make it necessarily a brick of marijuana more than anything else.\\\" The same may be said for the fact that he saw some brown plastic near the top of the sack.\\nNext is the claim of the officer that vans and campers are used more than other vehicles for transportation of controlled substances. This may be true, but it is also true that there are tens of thousands of such vehicles that are not used for such purposes. We can hardly say that each and every camper van may be searched. There is no way we can remove the owners and operators of all such vehicles from the protection of the Fourth Amendment. The nature of the vehicle alone surely is not enough, if, in fact, it is at all significant.\\nThe record of information known to the officers in this case does not meet the probable cause requirements of the Constitutions of the United States and of this state. The evidence should have been suppressed.\\nReversed and remanded.\"}"
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+"{\"id\": \"2644858\", \"name\": \"State Insurance Company of Des Moines, Iowa, v. New Hampshire Trust Company\", \"name_abbreviation\": \"State Insurance v. New Hampshire Trust Co.\", \"decision_date\": \"1896-02-04\", \"docket_number\": \"No. 6033\", \"first_page\": \"62\", \"last_page\": 71, \"citations\": \"47 Neb. 62\", \"volume\": \"47\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:36:52.121616+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State Insurance Company of Des Moines, Iowa, v. New Hampshire Trust Company.\", \"head_matter\": \"State Insurance Company of Des Moines, Iowa, v. New Hampshire Trust Company.\\nFiled February 4, 1896.\\nNo. 6033.\\n1. Insurance: Misrepresentations. A representation in an application for insurance that no other insurance existed on the property, is not to he deemed false in such a sense as to invalidate the insurance obtained on such application, merely because a former owner of the property, after having parted with his title, effects other insurance thereon in his own favor.\\n2. -: -. Where the application for insurance, and the policy issued thereon by an insurance company doing business in a sister state bear the same date, it will not be inferred in the absence of evidence upon that point, that the officers of the insurance company at its home office were influenced by misrepresentations contained in the application to approve a risk, which, had they known of such misrepresentation, they would not have approved.\\n3. -: -: Rights oe Mortgagee. Where, by the terms of the policy of insurance, the loss, if any, is payable to a mortgagee as his interest appears at the time of the loss, the right of such mortgagee to maintain an action for such loss is not necessarily defeated by such misrepresentation in the application for insurance, as, by the terms of the contract between the insurer and the insured, would defeat the right of the insured to maintain an action on his own behalf.\\nError from the district court of Seward county. Tried below before Bates, J.\\nSee opinion for statement of tbe case. .\\nCharles Offutt, for plaintiff in error:\\nTbe policy was forfeited by taking subsequent-insurance on tbe same premises. (2 M,ay, Insurance [2d ed.], sec. 364; Phoenix Ins. Co. v. Copeland, 8 So. Rep. [Ala.], 48; German Ins. Co. v. Heiduk, 30 Neb., 288; Reed v. Equitable Fire & Marine Ins. Co., 24 Atl. Rep. [R. I.], 833; Zimmerman v. Home Ins. Co., 42 N. W. Rep. [Ia.], 462.)\\nThe policy was forfeited by an undisclosed mortgage existing at the time of the application. (1 Wood, Fire Insurance, sec. 168; Byers v. Farmers Ins. Co., 35 O. St., 606; Hutchins v. Cleveland Mutual Ins. Co., 11 0. St., 477; Hayward v. Hew England Mutual Fire Ins. Co., 10 Cush. [Mass.], 444; Broum v. People\\u2019s Mutual Ins. Co., 11 Cush. [Mass.], 280; Jacobs v. Eagle Mutual Fire Ins. Co., 7 Allen [Mass.], 132; Falis v. Conway Mutual Fire Ins. Co., 7 Allen [Mfi ;s.], 46; Indiana Ins. Co. v. Brchm, 88 Ind., 578; Ryan v. Spring-field Fire & Marine Ins. Co., 46 Wis., 671; Smith v. Columbia Ins. Co., 17 Pa, St., 253; O\\u2019Brien v. Home Ins. Co., 79 Wis., 399; Addison v. Kentucky & Louisville Ins. Co., 7 B. Mon. [Ky.], 470; Westchester Fire Ins. Co. v. Weaver, 70 Md., 536; Patten v. Merchants & Farmers Mutual Fire Ins. Co., 38 N. H., 338.)\\nThe policy was forfeited by the fact that the insured, Brown, held only the naked legal title, while the real and beneficial owner was Haselwood. {Farmers & Drovers Ins. Co. v. Curry, 13 Bush [Ky.],' 312; Miller v. Amazon Ins. Co., 46 Mich, 463; Fitch-burg Savings Bank v. Amazon Ins. Co., 125 Mass., 431; Carver v. Hatokeye Ins. Co., 69 la,, 202; Davis v. Iowa State Ins. Co., 67 la., 494; Westchester Fire Ins. Co. v. Weaver, 17 Atl. Rep. [Md.], 401; Dowdv. American Fire Ins. Co. of Philadelphia, 41 Hun [N. Y.], 139; McLeod v. Citizens Ins. Co., 3 Rus. & C. [N. S.], 156; Ross v. Citizens Ins. Co., 19 N. B., 126; Scottish Union & Hat. Ins. Co. v. Petty, 21 Fla., 399; Broum v. \\u2022Commercial Fire Ins. Co., 86 Ala., 189; Wineland v. Security Ins. Co., 53 Md., 276; Waller v. Horfhern Assurance Co., 10 Fed. Rep., 232; McFet ridge v. Phoenix Ins. Go., 54 N. W. Rep. [Wis.], 326; Mt. Leonard Milling Go. v. Liverpool & London & Glole. Ins. Go., 25 Mo. App., 259; Gollins v. St. Paul Fire & Marine Ins. Go., 44 Minn., 440; Crescent Ins. Go. v. Camp, 71 Tex., 503; Clay Fire & Marine Ins. Go. v. Huron Salt & Lumler Mfg. Go., 31 Mich., 346; Agricultural Ins. Go. v. Montague, 38 Mich., 548.)\\nThe policy was forfeited by using the insured building as a military armory, drill room, and storage depot. {Hunts v. Niagara District Fire Ins. Go., 16 TJ. O. G. P., 573; Indiana Ins. Go. v. Brehm, 88 Ind., 578; Holly v. Dana, 17 Barb. [N. Y.], Ill; Hervey v. Mutual Fire Ins. Go., 11 TJ. O. O. P., 394; Mooney v. Imperial Ins. Co., 3 Mont. Sup. Ct., 339; Hyte v. Commercial Union Assurance Go., 21 N. E. Rep. [Mass.], 361.)\\nG. F. Holland, contra.\\nReferences to question of subsequent insurance: Niagara Fire Ins. Go. v. Scammon, 28 N. E. Rep. [111.], 919; 2 May, Insurance, sec. 372; 2 Wood Insurance, sec. 377; 2Ftna Fire Ins. Go. v. Tyier, 16 Wend. [N. Y.], 385; Mutual Safety Ins. Do. v. Hone, 2 *N. Y., 235; Burton v. Gore District Mutual Ins. Go., 14 U. O. Q. B., 342.\\nReferences to question relating to undisclosed mortgages: Wilson v. Minnesota Farmers Mutual Fire Association, 36 Minn., 112; Bartlett v. Firemen\\u2019s Fund Ins. Go., 77 la., 155; Breclcinridge v. American Gentral Ins. Go., 87 Mo., 62; Phenix Ins. Go. v. La Points, 118 111., 384; Harriman v. Queen Ins. Go., 49 Wis., 71; Fame Ins. Go. v. Mann, 4 Bradw. [111.], 485; Wheeler v. Traders Ins. Go., 62 N. H., 326; Ayres v. Homo Ins. Go., 21 la., 185; German Ins. Go. v. Miller, 39 111. App., 633; Leach v. Repullic Fire Ins. Go., 58 N. EL, 245; McNamara v. Dalcota Fire & Marine Ins. Oo., 47 N. W. Rep. [S. Dak.], 288; People\\u2019s Mutual Fire Ins. Go. v. Boiversox, 5 O. C. C., 444; Wich v. Equitable Fire & Marine Ins. Go., 2 Colo. App., 484; Sexton v. Montgomery County Mutual Ins. \\u25a0Co., 9 Barb. [N. Y.], 191.\\nReferences to the question relating to the use of the insured building as a military armory, drill room, and storage depot: Thayer v. Providence-Washington Ins. Go., 70 Me., 531; Stennett v. Pennsylvania Fire Ins. Go., 68 la., 674; Northrup v. Mississippi Valley Ins. Go., 47 Mo., 435; Anthony v. German- American Ins. Go., 48 Mo. App., 65; Hahn v. Guardian Assurance Go., 32 Pac. Rep. [Ore.], 683; Williams v. People\\u2019s Fire Ins. Go., 57 N. Y., 274; Gamioell v. Merchants & Farmers Mutual Fire Ins. \\u25a0Go., 12 Cush. [Mass.], 167; Lattomus v. Farmers Mutual Fire Ins. Go., 3 Ilous. [Del.], 404.\\nThere cannot be fraudulent concealment where an applicant for insurance is not questioned as to the contents of the application. (Gampbell v. American Fire Ins. Go., 40 N. W. Rep. [Wis.], 661; Dohn \\u25a0v. Farmers Joint-Stoch Ins. Go., 5 Lans. [N. Y.], 275.)\\nThough the facts were sufficient to constitute a forfeiture, if the agent knew the facts when he issued the policy, the company is estopped from \\u2022setting up the same as a defense. (Commercial Ins. Go. v. Ives, 56 111., 402; Home Mutual Fire Ins. Go. v. Garfield, 60 111., 124; Gerhauser v. North British & Mercantile Ins. Go., 7 'Nev., 174; Planters Mutual Ins. Go. v. Deford, 38 Md., 382; Field v. Ins. Co. of North America, 6 Biss. [U. S.], 121; Bussell v. Slatelns. Go., 55 Mo., 585; Michigan State Ins. Go. v. Lewis, 30 Mich., 41; Richards v. Washington Fire'A Marine Ins. Go., 60 Mich., 420; Andes Ins. Go. v. Shipman, 77 111., 189; Lycoming Ins. Go. v. Jaelcson, \\u202283 111., 302; Liverpool, London & Globe Ins. Go. v. McGuire, 52 Miss., 227; Carr v. Hibernia Ins. Go., 2 Mo. App., 466; Aurora Fire & Marine Ins. Go. v. Kranich, 36 Mich., 289; Mers v. Franklin Ins. Go., 68 Mo., 127; Weeks v. Lycoming Fire Ins. Go., 7 Ins. L. J. [Vt.], 552; Silts v. Hawkeye Ins. Go., 16 Ins. L. J. [Ia.], 106; Grahami v. Ontario Mutual Ins. Go., 14 Ont., 358; Gould v. Dwelling-House Ins. Go., 134 Pa., 570; Planters & Merchants Ins. Go. v. Thurston, OS' Ala., 255; Pelser Mfg Co. v. Sun Fire Office, 15 S. E. Rep. [S. Car.], 562; Jemison v. State Ins. Go., 52 N. W. Rep. [Ia.], 185; Mowryv. Agricultural Ins. Go.t 18 N. Y. Sup., 834; Soli v. Farmers Mutual Ins. Go.,. 52 N. W. Rep. [Minn.], 979.)\", \"word_count\": \"2941\", \"char_count\": \"16650\", \"text\": \"Ryan, C.\\nThere was a verdict, with a judgment thereon, for the defendant in error in this case, in the district court of Seward county. This judgment, on March 24,1892, was rendered for the sum of $2,124 and costs. The policy upon which plaintiff in. error was found liable was issued to J. D. Brown on March 15,1890. The property insured \\u2014 a brick building \\u2014 was totally destroyed by fire on January 16, 1891. The defenses specially pleaded were that in the application for the above insurance it had been falsely represented that Brown was the sole, undisputed owner of the property to be in-' sured; that, likewise, it was falsely represented that there was no other insurance on the property;. that in said application it was falsely represented that the building to be insured was used solely as a. livery barn, whereas, in fact, the upper story thereof was used for an armory; and that by the said application there had not been disclosed the existence of a mortgage upon the premises therein described. These averments of the answer were- supplemented by others to the effect that the plaintiff in error had been deceived by the above described false representations and omission, and so had been induced to insure the property described.\\nIn respect to the alleged false representations, as to the ownership of the insured property, the-bill of exceptions shows that there was introduced in evidence the record of a warranty deed from James A. Haselwood and his wife to the aforesaid Brown, whereby was conveyed the real property on which was the insured building. The plaintiff in error offered the above named Janies A. Haselwood as a witness, and from him elicited the oral, statements that the above deed was a trust deed;that the witness still owned in fee-simple the property therein described; and that he had held possession of, and had collected the rents arising from,, the said property ever since the making of the-aforesaid conveyance. It would be extremely dangerous for this court to assume, upon evidence-of this nature, that the jury wrongfully found that the deed attacked was operative according to its terms. The policy sued upon provided that the loss, if any occurred during the term covered by it, should be payable to the New Hampshire Trust Company, mortgagee, as its interest might appear at the time of such loss. When the policy sued upon was applied for and issued, there was in existence no policy of insurance upon the same property, but, something like nine months, afterward, J ames A. Haselwood procured to be issued by the Farmers & Merchants Insurance Company of Lineoln another policy in his own favor. This last policy was of the date of J une 11,1891. The warranty deed above referred to had been executed by James A. ITaselwood and Ms wife on February 25, 1889, and had been filed for record two days there-' after; so that, if this deed was effective to pass title, as the jury must have assumed that it was, Mr. Haselwood, at the time he procured the insurance in his own favor, had no interest whatever in the property insured. It was not shown that Brown was at all cognizant of Haselwood's attempt to effect insurance in his own behalf, much less does the evidence disclose any approval of this attempt; hence Brown's rights were not impaired by it.\\nBy the failure in the application to state that the building was used for an armory there was no such prejudice as was pleaded in respect thereto; for it was proved beyond question that in the armory there were kept no explosives or inflammable substances, and the keeping of these in said armory was what in the answer was alleged to have increased the risk. The testimony of insurance agents, that armories are usually classified as extra hazardous risks, was simply as to their judgment of what the action of insurance companies, ordinarily, would be in case such a risk was offered. In this case the written application, in which the building to be insured was described as a livery barn, was introduced in evidence. If this application could have subserved any purpose in procuring the issuance of a policy, it must have been, if this quasi-ex pert testimony was material, by influencing the officers of the company, at Des Moines, to accept the proffered risk. There was no attempt to show that the policy was issued by reason of the presentation of this application at the home office; hence there was no competent proof that the alleged misdescription therein was misleading in view of the testimony of the aforesaid insurance agents. The averment of the answer that, without consent of the plaintiff in error, the upper story of the insured building was in January, 1891, and up to the time of the fire, changed so as to become an armory, had no support in the evidence. It was shown, beyond question, that this nse as an armory existed from the erection of the building in 1887; hence the sole question presented on this branch of the case by pleadings and evidence has already been disposed of by the above discussion.\\nThe mortgagee, to whom Tyas payable the loss by the terms of the policy, was the original plaintiff in this case. The amount secured to be paid to> this mortgagee was $2,000, with interest thereon. This mortgage was dated March 13, 1888, and it was filed for record the day following. The mortgage, which was not disclosed in the application for insurance, was made to J. H. Culver on March 13, 1888, to secure the payment of $755. This mortgage was filed for record on March 23, 1888. The application, from which was omitted all mention of this last named mortgage, was dated March 15, 1890, and the policy thereon claimed to have issued was of the same date. The only mention of the defendant in error to be found in all these insurance transactions occurs in the policy sued upon, and is in the following words: \\\" Loss, if any, is payable to the New Hampshire Trust Company, mortgagee, as their interest may appear at the time of loss.\\\" In this policy it was provided with respect to mortgaged premises that, \\\"if the same or any part thereof is incumbered by mortgage, lien, contract of sale, or otherwise, or any existing incumbrance at the time of mating application is not set forth in the application, then, and in every snch case, this policy shall be void.\\\" In Phenix Ins. Co. of Brooklyn v. Omaha Loan & Trust Co., 41 Neb., 834, it was held that by issuing a policy of insurance an insurer was bound to make good such loss and damage as should be caused to the insured property by fire, but that the conditions upon which the payment should be made, as between the insurer and the insured, did not necessarily qualify the right of mortgagee to collect payment under a mortgage slip, which provided that the payment of loss should be made to such mortgagee as his interest appeared at the time of such loss. Under such a provision the contract of insurance, in so far as it related to the right of a mortgagee to recover, was held to be a separate and independent contract from the one which governed the right of the insured in that respect, and the cases cited fully sustain this distinction. It therefore results from the doctrine of the case last cited that the right of the defendant in error to recover the amount of loss as its interest as mortgagee was, at the time of the fire, not defeated by the fact that, as between the insurer and the insured, there had been an omission in the application to describe or refer to the mortgage to Culver, or by the fact that there was a like omission of mention of the use of the building for an armory. In this connection it is deemed appropriate to observe that the evidence justified the amount of the verdict returned by the jury, for there was due as interest the amount of the verdict in excess of $2,000. There is presented by the record no other questions which we can examine, for, if upon the instruction there were such questions, they could not be considered, on account of the manner in which the instructions are grouped ih the petition in error. The judgment of the district court is\\nAffirmed.\\nPer Curiam.\\nUpon consideration of a motion for a rehearing there was found in the brief submitted by the plaintiff in err.or such weight of argument that, without receding from the views expressed in the opinion as to the analogy afforded by the case of Phenix Ins. Co. of Brooklyn v. Omaha Loan & Trust Co., 41 Neb., 834, it is by the court deemed advisable to say that this question will be determined as an original one whenever its consideration becomes necessary. The motion for rehearing is overruled, however, because from what has been noted in the opinion it is evident that the application for insurance in no degree influenced the issue of the policy, and hence the representation as to the non-existence of a mortgage on the insured property was immaterial.\\nRehearing denied.\\nApril 21, 1896.\"}"
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+"{\"id\": \"2651306\", \"name\": \"Albert W. Cox, Administrator, v. John Yeazel et al.\", \"name_abbreviation\": \"Cox v. Yeazel\", \"decision_date\": \"1896-10-07\", \"docket_number\": \"No. 6685\", \"first_page\": \"343\", \"last_page\": 351, \"citations\": \"49 Neb. 343\", \"volume\": \"49\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:06:09.729465+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Albert W. Cox, Administrator, v. John Yeazel et al.\", \"head_matter\": \"Albert W. Cox, Administrator, v. John Yeazel et al.\\nFiled October 7, 1896.\\nNo. 6685.\\n1.Executors and Administrators: Actions. Generally, an action to recover a debt payable to a deceased intestate must be brought by the administrator of the estate.\\n2.-: -. Such an action cannot be maintained by the heirs at law, unless there be no demands against their decedent ancestor and there has been no administration, or the administration has been closed.\\n3. -: -. The right of a foreign administrator to sue in this state is recognized by chapter 23, section 337, Compiled Statutes.\\n4. -; -: Evidence. Held, That the verdict of the jury is unsupported by the evidence.\\nError, from the district court of Adams county. Tried below before Beall, J.\\nBatty & Dungan, for plaintiff in error.\\nTibbets, Morey & Ferris and Bedford Brown, contra:\\nThis action is properly brought by plaintiffs below. They have legal capacity to bring this suit. Where an estate has been administered and all claims against it paid, and only one claim outstanding in its favor, which the administrator is unwilling to sue, and which 1 r a number of years he fails and neglects to protect, the heirs can bring the suit. (Fret-well v. McLemore, 52 Ala., 124; Salter v. Salter, 98 Ind., 522; Sanders v. Moore, 12 S. W. Rep. [Ark.], 783; Vanderveerv. Alston, 16 Ala., 494; Plunkett v. Kelly, 22 Ala., 655; Fro-wner v. Johnson, 20 Ala., 477; Marshall v. Grow, 29 Ala., 278; Amis v. Cameron, 55 Ga., 449; Needham v. Gillette, 39 Mich, 574; Foote v. Foote, 61 Mich., 181; Kilcrease v. Shelby, 23 Miss., 161; Watson v. Byrd, 53 Miss., 480; Rides v. Hilliard, 45 Miss., 359; Wright v. Smith, 19 Nev., 143; George v. Johnson, 45 N. H., 456; Hibbard v. Kent, 15 N. H., 516; Woodman v. Rowe, 59 N. H., 453; Begien v. Freeman, 75 Ind., 398; Hdltsman v. Ifibben, 100 Ind., 338; Lewis v. Lyons, 13 111., 117; Abbott v. People, 10 111. App., 62; McGleary v. Menke, 109 111., 294; Walworth v. Abel, 52 Pa. St., 370; Weaver v. Roth, 105 Pa. St., 408-413; Patterson v. Allen, 50 Tex., 23; Webster v. Willis, 56 Tex., 468; Taylor v. Phillips, 30 Vt., 238; Babbitt v. Bowen, 32 Vt., 437; Richardson v. Cooley, 20 S. Oar., 347; Randel v. Dyett, 38 Hun [N. Y.], 347; Wood v. Weimar, 104 U. S., 787; Gooper v. Davison, 5 So. Rep. [Ala.], 650; Garter v. Owens, 41 Ala., 217; Sullivan v. Lawler, 72 Ala., 68; Thomas v. White, 14 Am. Dec. [Ky.], 56; Gilbert v. Thomas, 3 Ga., 575; Worthy v. Johnson, 52 Am. Dec. [Ga.], 401; Patton v. Gregory, 21 Tex., 513; Roger v. Kennard, 54 Tex., 36; Hargroves v. Thompson, 31 Miss., 211; Dorshcimer v. Rorback, 23 N. J. Eq., 46; Hubbard v. Ricart, 23 Am. Dec. [Vt.], 202.)\", \"word_count\": \"2776\", \"char_count\": \"16014\", \"text\": \"Norval, J.\\nThe case is substantially this: That in 1877 James Yeazel resided in Champaign county, Illinois, and being the owner of considerable real estate in said county, he negotiated a loan, secured by a mortgage thereon, for $5,000, of which sum he loaned $3,000 to his son, Abraham Yeazel, who then resided in this state, to enable the latter to engage in the business of banking. No note was taken for the $3,000 sent to Abraham Yeazel, yet the latter at various times paid interest on the money, and otherwise acknowledged the validity of the indebtedness, but never paid the principal to his father. In 1879, James Yeazel having become financially involved conveyed his lands to his said son Abraham, who then resided at Hastings, for the purpose of placing the same beyond the reach of the creditors of the father. There was no consideration whatever for this conveyance. In 1881 Abraham Yeazel borrowed $8,000 and secured the payment thereof upon the land so conveyed to him, and out of the proceeds arising from this loan the $5,000 mortgage and accrued interest was paid off and canceled, and a judgment recovered against James Yeazel by an Illinois bank was paid, and the balance of the $8,000, amounting to over $1,000, was paid over by the mortgagee to Abraham Yeazel, who retained the same. In 1886 about 100 acres of the land was sold, and $3,000 of the consideration was applied on the mortgage last aforesaid, a new note for $6,000, secured by a mortgage on the remainder of the land, was executed by Abraham Yeazel, and the balance of the $8,000 loan was paid off. Various other sums of money, it is claimed, were loaned by James Yeazel to his said son which were never paid back. On December 5, 1887, Abraham Yeazel and wife conveyed the unsold portion of the land, subject to the $6,000 mortgage, to John Yeazel.in trust for the children of the said James. In January, 1888, the said James Yeazel died intestate, leaving, him surviving, ten children and heirs at law. One White was duly appointed administrator by the probate court of Champaign county, Illinois, and various claims were allowed against the estate. Subsequently, the estate was declared insolvent. Shortly thereafter White resigned, and one Patrick Richards was appointed administrator de bonis non, who qualified as required by law. In 1888 an action was brought by certain of the heirs of James Yeazel in the circuit court of Champaign county to obtain a partition of said real estate, against the resident heirs of the deceased and the administrator de bonis non, but Abraham Yeazel was not a party to the litigation. Pending the action certain of the creditors of the deceased intervened, and filed creditors' bills praying that the deeds from James to Abraham, and from Abraham and wife to John, be set aside as fraudulent as to said creditors, and that the real estate be subjected to the payment of their claims. The prayer of the intervenors was gvanted, and the lands were sold in accordance with the decree. In 1890 Abraham Yeazel died, leaving, him surviving, his widow and a minor child. The widow was appointed administratrix of his estate by the county court of Adams county, and subsequently Albert W. Cox was appointed administrator de bonis non of the estate of Abraham Yeazel, deceased. On January 8, 1891, the defendants in error, as heirs of said James Yeazel, deceased, filed in the county court of Adams county a claim against the estate of Abraham Yeazel, deceased, for the sum of $6,000 on account of moneys so loaned by James to Abraham. Objections to the allowance of the claims were made, and upon the hearing on the testimony adduced by the claimants alone, the county court disallowed the claim. Prom this order of disallowance the claimants appealed to the district court, where they filed a petition setting up therein, inter alia, the matters already detailed. The administrator demurred to the petition upon the following-grounds:\\n1. Plaintiffs have no legal capacity to sue.\\n2. Several causes of action are improperly joined.\\n3. Misjoinder of parties plaintiff.\\n4. The petition does not state a cause of action.\\n5. The several causes of action are barred by the statute of limitations.\\nThe demurrer was overruled by the court, an answer was filed alleging the same defenses interposed by the demurrer, and others which need not be stated here. Claimants filed a reply, and upon a trial of the issues to a jury a verdict was returned against the estate of Abraham Yeazel for $5,215.54, upon which judgment was subsequently rendered. The administrator has brought the record to this court for review.\\nMany interesting legal propositions are discussed in the briefs of counsel, but the most important controverted question presented by the record, and the controlling one in the case, is whether the heirs of James Yeazel can maintain an action to recover the moneys in question. It must be conceded, we think, that two suits cannot be successfully prosecuted to collect the same, \\u2014 one by the heirs of the decedent and another by the personal representative. The question arises, then, in whose favor does the right of action exist? The title to the debt or chose in action did not vest in the heirs of James Yeazel immediately upon his death, but passed to his administrator, who is entitled to all the personal property, rights, and credits of the deceased. They are assets in his hands, chargeable first with the payment of the debts of the estate and costs and expenses of administration. It is only the residue of the personalty remaining after such debts and expenses are paid that descended to the heirs or distributees. (Gilkey v. Hamilton, 22 Mich., 283; Babcock v. Booth, 2 Hill [N. Y.], 181; Valentine v. Jackson, 9 Wend. [N. Y.], 302; Rockwell v. Saunders, 19 Barb. [N. Y.], 473; Laurence v. Wright, 40 Mass., 128; White v. Ray, 4 Ired. [N. Car.], 14; Beecher v. Buckingham, 18 Conn., 110; Neale v. Hagthorp, 3 Bland Ch. [Md.], 551.) If, then, the title to the personal assets of James Yeazel vested in his admin istrator, for the purpose of collecting and disposing of the same for the benefit of the creditors and heirs or distributees, it necessarily follows that the administrator, and not the heirs, is the proper party to bring this action to recover the debt in question.\\nThe'rule is thus stated in Schouler, Executors & Administrators [2d ed.], sec. 239: \\\"The title of the executor or administrator, as representative, extends so completely to all personal property left by the decedent as to exclude creditors, legatees, and all others interested in the estate. They cannot follow such property specifically in the hands of others, much less dispose of it; but the executor or administrator is the only true representative thereof that the law will regard. The legal and equitable title to all the personal property of the deceased, including choses in action and incorporeal rights, vests in fact in the executor or administrator as against all others, during the suitable period for administration, . and he holds this property \\u2022 as a trustee and proper representative of all parties interested therein.\\\" And at section 276 the same author says: \\\"A payment made by a debtor of the estate to anyone, even to the residuary legatee or next of kin, is a mispayment, and from such person the representative may recover.\\\"\\nThe following authorities, in addition to those already cited, sustain the doctrine that the heirs cannot maintain this action: 7 Am. & Eng. Ency. of Law, secs. 232, 258, 307, 360; 2 Woerner, American Law of Administration, sec. 322; Haynes v. Harris, 33 Ia., 516; Rhodes v. Stout, 26 Ia., 313; Baird v. Brooks, 21 N. W. Rep. [Ia.], 163; Richardson v. Vaughan, 23 S. W. Rep. [Tex.], 640; Varner v. Johnston, 17 S. E. Rep. [S. Car.], 483; Highnote v. White, 67 Ind., 596; Finnegan v. Finnegan, 125 Ind., 262; Schouler, Executors & Administrators, secs. 239 to 276; Beattie v. Abercrombie, 18 Ala., 9; 3 Wait, Actions & Defenses, 238, 442; Webster v. Tibbits, 19 Wis., 438; Linsenbigler v. Gourley, 56 Pa. St., 166; Pope's Heirs v. Boyd, 22 Ark., 535; Lemon's Heirs v. Rector, 15 Ark., 436; Snow v. Snow, 49 Me., 159; Cheely v. Wells, 33 Mo., 106; Ketchum v. Dew, 7 Cold. [Tenn.], 532; Pritchard v. Norwood, 30 N. E. Rep. [Mass.], 80; Morse v. Clayton, 13 S. & M. [Miss.], 373; Hollowell v. Cole, 25 Mich., 345; Woodin v. Bagley, 13 Wend. [N. Y.], 453; Marshall v. King, 24 Miss., 85; Allen v. Simons, 1 Curtis [U. S. C. C.], 122; Miller v. Batman, 11 Ala., 609; Murphy v. Hanrahan, 50 Wis., 485; Bradford v. Felder, 2 McCord Ch. [S. Car.], 168; Cochran v. Thompson, 18 Tex., 652; Smith v. Denny, 37 Mo., 20; Leamon v. McCubbin, 82 Ill., 263; Newman v. Schwerin, 61 Fed. Rep., 865; Hazelton v. Bogardus, 8 Wash., 102; Longacre v. Stiver, 35 N. E. Rep. [Ind.], 900; Eisenbise v. Eisenbise, 4 Watts [Pa.], 134; Barlow v. Nelson, 32 N. E. Rep. [Mass.], 359; Palmer v. Green, 63 Hun [N. Y.], 6; Brunk v. Means, 11 B. Mon. [Ky.], 214.\\nThe syllabus of Hollowell v. Cole, 25 Mich., 345, reads as follows: \\\"A son and sole heir of a decedent, upon whose estate an administrator has been appointed and qualified, and has not been discharged, has no authority to enforce collection, in his own name, of a claim which had existed in favor .of said decedent during her lifetime, against the estate of another decedent.\\\"\\nCounsel for plaintiffs below concede the general rule to be that the heirs cannot sue for assets belonging to an estate of an intestate, but that such action must be brought by the administrator. They insist, however, that this rule has a general recognized exception, that when it is shown that the estate owes no debts and that no letters of administration have been granted, the title to the personal property and choses in action passes to the heirs and they may sue to recover the same, and distribute the assets among themselves without the expense of administration. That such doctrine exists and is abundantly sustained by the authorities, cannot be doubted. Where there are no liabilities or debts against the estate of an intestate, there is no necessity for increasing the expense of administration, and in such case the heirs may maintain an action to recover a debt owing the estate. But the rule invoked by counsel is not appli cable to this record. Tbe petition, as well as tbe proof, shows that when the claim was filed by the heirs against the estate of Abraham Yeazel, there was a qualified and acting administrator of the estate of James Yeazel, deceased. His estate had not been fully settled, nor is it alleged that even the costs of administration have been paid; hence, the administrator, and not the heirs, had the right to recover the debts due his intestate. The fact that more than a year subsequent to the bringing of this action the administrator de bonis non was discharged is unimportant and has no bearing upon the issues. The case must be determined upon the rights of the parties when the proceedings were instituted. At that time the heirs had no right of action. The fact that they after-wards acquired title to the assets of their father, if it be a fact, by the discharge of the administrator de. bonis non, could not help them in this action. They could no more maintain a suit by reason of an after-acquired title or right than could a plaintiff recover upon a promissory note to which he had no title when he brought his action thereon, bnt which obligation he subsequently purchased from the original owner. If the administrator de bonis non of the estate of James Yeazel failed, neglected, and refused to take any steps to collect this claim, as is now insisted, the heirs should have had him removed before bringing this suit. If the claim was lost by his neglect, they have their remedy against him upon the bond. It is true, no administrator of the estate of James Yeazel, deceased, was ever appointed in this state, but this cannot aid the plaintiffs below, since the right of a foreign administrator to sue in this state is recognized by statute. (Compiled Statutes, ch. 23, sec. 337.)\\nIt is argued that the question whether the heirs have the right to prosecute the suit is not before us for review, since, after demurring to the petition on the ground that plaintiffs have no legal capacity to sue, .the defendant did not stand upon his demurrer, but filed an answer. Conceding that answering and going to trial constituted a waiver of the first ground of demurrer, the defendant did not thereby waive the fourth objection therein stated, namely, that the petition fails to state a cause of action in favor of the plaintiffs. This defect or objection is always available, and is not lost by answering after the overruling of a demurrer. The petition on its face, as well as the evidence adduced, discloses that an administrator de lonis non of the estate of James Yeazel had been appointed and qualified prior to the filing of this suit and that he had not been discharged. So that the petition and the proofs make out a cause of action in his favor, and not any liability in favor of the heirs. See authorities heretofore cited. The verdict is therefore contrary to the evidence. The conclusion reached makes it uanecessary to consider the other points argued in the brief: The judgment is reversed and the cause remanded.\\nReversed and Remanded.\"}"
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+"{\"id\": \"2665811\", \"name\": \"Albert U. Wyman, Receiver of the Nebraska Fire Insurance Company, appellant, v. National Bank of Commerce, appellee\", \"name_abbreviation\": \"Wyman v. National Bank of Commerce\", \"decision_date\": \"1897-05-18\", \"docket_number\": \"No. 7053\", \"first_page\": \"636\", \"last_page\": 640, \"citations\": \"51 Neb. 636\", \"volume\": \"51\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T20:30:00.873335+00:00\", \"provenance\": \"CAP\", \"judges\": \"Irvine, C., not sitting.\", \"parties\": \"Albert U. Wyman, Receiver of the Nebraska Fire Insurance Company, appellant, v. National Bank of Commerce, appellee.\", \"head_matter\": \"Albert U. Wyman, Receiver of the Nebraska Fire Insurance Company, appellant, v. National Bank of Commerce, appellee.\\nFiled May 18, 1897.\\nNo. 7053.\\nBanks and Banking: Trust Funds Deposited by Corporation: Liability oe Bank. Where certain officers and stockholders of a corporation borrowed money intended by them-to be deposited in a bank and therein held as a trust fund for the creditors of the said corporation, but such intention as well as the insolvent condition of the corporation were unknown to the bank wherein the deposit was made, the payment in good faith of the fund upon the check of an officer of the corporation did not render the bank liable as a trustee to other creditors of the corporation, or to its receiver on their behalf, merely because the proceeds of said check, with the consent of the bank, were used to take up the note on the faith of which the loan had originally been made by the bank.\\nAppeal \\u25a0 from the district court of Douglas county. \\u25a0Heard below before Walton, J.\\nAffirmed.\\nA. G. Walceley, E. Waheley, and Hall cG McCulloch, for appellant.\\nE. J. Cornish, contra.\", \"word_count\": \"1642\", \"char_count\": \"9460\", \"text\": \"Ryan, C.\\nThis action was brought by- Albert U. Wyman, as receiver of the Nebraska Fire Insurance Company, in the district court of Douglas county. There was a judgment against George F. Wright and Samuel R. Johnston, by whom an appeal was taken to this court. As there has been a settlement of this branch of the controversy these parties will be referred to merely for the purposes of the discussion of the right of the receiver to a reversal of the judgment of the district court in favor of the National Bank of Commerce.\\nThe averments of the petition were, in substance, that, on the 14th day of May, 1891, William G, Madden, a holder of certain shares of the stock of the Nebraska Eire Insurance Company, applied for the appointment of a receiver of the aforesaid insurance company; that the attorney general intervened in said proceeding, and that on the application of both these parties there was, about June 6, 1891, a receiver appointed as prayed, on account of the insolvency of the insurance company. It was further alleged that about the 11th day of April, 1887, the insurance company had deposited with the National Bank of Commerce, then known as the Bank of Commerce, the sum of $35,000, to be held for the use of said insurance company, and especially as a guaranty to the holders of policies of insurance which had been or might thereafter be issued by the company, and for the purpose of meeting any liabilities then existing or which might thereafter accrue against said company. The said $35,000, it was averred, was, in the statement filed with the state auditor of public accounts respectively in 1887, 1888, 1889, and 1890, represented as a fund available for the above purposes, all of which facts were known to the officers of the defendant bank. It was further alleged that this fund was held for the use and benefit of, and in trust for, the said insurance company, and especially for its policy holders and other creditors, from the time of its being deposited with the bank until it was wrongfully appropriated as alleged. The allegations with reference to the wrongful appropriation of this fund were made at great length and, condensed as much as may be, they were that about April 11, 1887, the co-defendants of the bank borrowed of it the said sum of $35,000, for which they executed their promissory note to the said bank; that on April 13, 1891, said note, or a renewal thereof, was held by the bank as security for the payment of said sum; that at the time the said money was borrowed, and at the time of the occurrence of other matters complained of, certain of the makers of the aforesaid note sustained the following relations to the insurance company, to-wit: Samuel B. Johnston was a director and was its president; George F.' Wright was a director and a member of its executive committee; J. T. Hart was a director, its general manager, and a member of its executive committee; J. W. Morse was a director, and was its vice-president and treasurer. Of the other makers of the note it was alleged that Henry Laub, Eli Clayton, and George W. Kings-worth were holders of stock of said insurance company. In general terms, it is sufficient for all practical purposes \\u2022 to state that the petition in this connection charged that on the 1.3th day of April, 1891, the insurance company was, and for some time prior thereto had been, hopelessly insolvent, and that its capital at the above named date had become so impaired that the company was unable longer to transact a safe insurance business and comply, with statutory requirements designed to guard against irresponsible insurance, wherefore the state auditor aforesaid revoked its license. Full knowledge of the existence of these conditions, by the petition, was imputed to the officers and managers of the bank. It was further averred by the receiver that the defendants, Johnston and Wright, with others unknown to the receiver, conspired and colluded with one M. J. Burns, a director and secretary of the insurance company, to appropriate the aforesaid sum of $35,000 to the use and benefit of themselves and the other makers of the aforesaid note, and to that end induced Burns to sign the following instrument:\\n\\\"Omaha, Neb., April 13,1891.\\n\\\"National Bank of Commerce; pay to the National Bank of Commerce, for note, or order $35,018.05, thirty-five thousand and eighteen and 5-100 dollars.\\n\\\"The Nebr. Fire Insurance Company.\\n\\\"By M. J. Burns, Secretary\\nIt was further charged that with the proceeds of this check the note aforesaid was paid. It was also alleged that Burns had no authority to apply the aforesaid fund to the payment of the note held by the bank, and that the appropriation thereof to the purpose indicated was in violation of the rights of policy holders and other creditors of the insurance company, and that by reason of the premises, the National Bank of Commerce and the other defendants became and continued to be liable to the receiver for the said sum of $35,000, for which amount, with interest from April 13, 1891, there was a prayer for judgment. There were answers for the several defendants, to which replies were duly filed.\\nThe issues thus presented need not be described, for there were special findings in respect to them by which their nature is sufficiently indicated. In effect, these findings were that the makers above referred to borrowed the sum sought to be recovered in this action; that upon borrowing said sum it was by the parties who had made the note deposited in the bank to the credit of the treasurer of the insurance company for the uses, purposes, and upon the trust described in the petition, and so remained on deposit until April 13, 1891, except that, at some time, a small part of it was used by the insurance company, but not sufficient to reduce the deposit to less than $31,000 at any one time. It was specially found that the sum of $35,000 was described in the annual statements, to the state auditor of public accounts;' that on, and for a considerable time before April 13, 1891, the Insurance company had been insolvent and unable to pay its debts, \\u2014 a fact well known to the makers of the aforesaid note, but this condition was unknown to the officers, managers, agents, and directors of the Bank of Commerce. Other special findings were made, but as they refer only to the acts of the parties held liable, and constituted the ground of such liability, they need not be described, in view of the fact that this branch of the case is not presented for review. It is thus seen that the issues now presented are reduced to a very limited scope of inquiry. The $35,000 was borrowed by certain officers and stockholders of the insurance company and by them this fund was deposited with the bank. It was intended by the parties obtaining and depositing this money that it should be used as a trust fund for the benefit of the creditors of the insurance company. The court found specially, and upon sufficient evidence to sustain such finding, that the officers and agents of the bank had no knowledge of this trust purpose. As shown by the evidence, without contradiction, the credit was at first in favor of the treasurer of the insurance company, after-wards the sum was placed to the credit of the company itself. The loan was solely on the faith of the credit of the individuals who signed the note, and to this amount the insurance company was therefore indebted to those signers, \\u2014 a fact well known to the officers of the bank. As has been held by this court, these creditors of the insurance company, though its officers, were entitled to receive payment of the indebtedness due them, provided they made no use of their official relations to secure an advantage in that respect. (Tillson v. Downing, 45 Neb., 549; Ingwersen v. Edgecombe, 42 Neb., 740; Gorder v. Plattsmouth Canning Co., 36 Neb., 548.) As the bank had no knowledge of the insolvent condition of the insurance company, and was not aware that there was any trust with relation to the deposit in question, there existed no reason why it should have refused to honor the check drawn upon it by a proper officer of the insurance company for the payment of this particular indebtedness of the insurance company. The judgment whereby the bank was held not to be liable was right and accordingly it is\\nAffirmed.\\nIrvine, C., not sitting.\"}"
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+"{\"id\": \"267689\", \"name\": \"In re Interest of Andre W., a child under 18 years of age. State of Nebraska, appellee, v. Andre W., appellant\", \"name_abbreviation\": \"State v. Andre W.\", \"decision_date\": \"1998-08-25\", \"docket_number\": \"No. A-97-1169\", \"first_page\": \"539\", \"last_page\": 549, \"citations\": \"7 Neb. App. 539\", \"volume\": \"7\", \"reporter\": \"Nebraska Court of Appeals Reports\", \"court\": \"Nebraska Court of Appeals\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:16:49.219340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hannon, Irwin, and Inbody, Judges.\", \"parties\": \"In re Interest of Andre W., a child under 18 years of age. State of Nebraska, appellee, v. Andre W., appellant.\", \"head_matter\": \"In re Interest of Andre W., a child under 18 years of age. State of Nebraska, appellee, v. Andre W., appellant.\\n584 N.W.2d 474\\nFiled August 25, 1998.\\nNo. A-97-1169.\\nDennis R. Keefe, Lancaster County Public Defender, and Jenny R. Witt for appellant.\\nGary Lacey, Lancaster County Attorney, and Marcie Hagerty for appellee.\\nHannon, Irwin, and Inbody, Judges.\", \"word_count\": \"3375\", \"char_count\": \"20326\", \"text\": \"Irwin, Judge.\\nI. INTRODUCTION\\nAndre W. appeals the adjudication order of the separate juvenile court of Lancaster County in which the court found beyond a reasonable doubt that Andre had knowingly or intentionally possessed a controlled substance, to-wit, cocaine, in violation of Neb. Rev. Stat. \\u00a7 28-416(3) (Reissue 1995), and therefore concluded that Andre was a child as defined by Neb. Rev. Stat. \\u00a7 43-247(2) (Supp. 1997). On appeal, Andre contends that the juvenile court erred in failing to grant his motion to suppress. For the reasons stated below, we affirm.\\nII. FACTUAL BACKGROUND\\nA juvenile petition was filed in this case on September 18, 1997. The State alleged that Andre was a child as defined by \\u00a7 43-247(2) because he had possessed cocaine in violation of \\u00a7 28-416(3). Andre filed a motion to suppress all evidence seized as a result of a seizure and search of his person, contending that his constitutional rights were violated. A hearing was held on the motion on October 27. Dennis W. Miller, the police officer who discovered the cocaine on Andre's person as a result of a pat-down search for weapons, testified for the State. Andre also testified.\\nThe facts are generally undisputed. We summarize the testimony of Miller, a police officer with the Lincoln Police Department. Miller is a detective sergeant with 18 years' experience who is assigned to the specialized drug unit of the department. On September 17, 1997, at approximately 9:50 p.m., Miller was supervising the execution of a search warrant at 2805 F Street, a residential apartment. The warrant was a night time, no-knock warrant authorizing a search for controlled substances, other drug-related evidence, and an individual known as Crumb. Crumb was described in the warrant as a \\\"black male 5'7\\\", thin build, wearing a white T-shirt and blue slacks.\\\"\\nThe officers gained forcible entry into the apartment. All persons found inside were handcuffed and removed from the residence. Andre, a young black male dressed in a white T-shirt, blue jeans, and high-top tennis shoes, was found on a bed in a bedroom of the apartment. Andre indicated that he did not live at the apartment.\\nAfter Andre was taken outside, Miller conducted a pat-down search of Andre's person for weapons. According to Miller, at the time of the pat down, Andre was suspected of distribution of cocaine. Informants had indicated that no one actually lived at the apartment and that the only use of the apartment was to distribute crack cocaine. The informant had purchased crack cocaine from a person who described his contact at the apartment as a younger black male named \\\"Crumb,\\\" dressed in a white T-shirt and blue jeans.\\nAs part of the pat-down search, Miller had Andre remove his high-top tennis shoes in order to search for weapons. He did so because, based on his experience, people encountered in this type of situation often have weapons, including knives and razor blades, hidden in their socks and shoes. While patting down Andre's socks, Miller felt an object inside one sock that he \\\"immediately\\\" knew to be crack cocaine, based on his training and experience. Miller then removed the crack cocaine and arrested Andre.\\nAfter hearing the evidence, the court overruled the motion to suppress. On October 30, 1997, a trial was had on stipulated facts, at which time Andre preserved his objection to the receipt of the evidence obtained as a result of the seizure and search. Thereafter, the court found beyond a reasonable doubt that Andre had illegally possessed cocaine and exercised its jurisdiction over him. This appeal timely followed.\\nIII. ASSIGNMENTS OF ERROR\\nGenerally, Andre assigns that the juvenile court erred in overruling his motion to suppress and that there was insufficient evidence to adjudicate Andre under the Nebraska Juvenile Code.\\nIV. ANALYSIS\\n1. Standard of Review\\nIn reviewing a trial judge's ruling on a motion to suppress, the ultimate determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, a trial judge's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. Konfrst, supra; State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of that of the lower court. J.C. Penney Co. v. Balka, 254 Neb. 521, 577 N.W.2d 283 (1998).\\n2. Detention\\nAndre first argues that the seizure of his person was an arrest which was not supported by probable cause. In response, the State argues that pursuant to the U.S. Supreme Court's holding in Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), the detention of Andre was a permissible investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).\\n(a) Summers Case\\nIn Summers, supra, an occupant of a residence was detained by police while they executed a search warrant for narcotics. After narcotics were found on the premises, the occupant was arrested and searched. The defendant sought to suppress the narcotics, claiming that he was detained in violation of the Fourth Amendment to the U.S. Constitution. The U.S. Supreme Court concluded that the detention of the defendant was constitutionally permissible.\\nIn assessing the justification for the detention, the Summers Court considered the law enforcement interests and the nature of the facts supporting the detention. The legitimate law enforcement interests identified by the Court were the interest in preventing flight and, \\\"of greater importance,\\\" the interest in minimizing the risk of harm to the officers. 452 U.S. at 702. The Court stated:\\nAlthough no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.\\n452 U.S. at 702-03.\\nThe Court also found it appropriate to consider the existence of a search warrant. The Court stated that the search warrant\\nprovides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.\\n452 U.S. at 703-04.\\n(b) Application to Facts\\nJust as was the defendant in Summers, supra, Andre was detained by the police during the execution of a search warrant for controlled substances. The police could reasonably believe that Andre was an occupant of the premises because he was found on a bed in a bedroom and because he matched the general description set forth in the search warrant of the individual called Crumb. Based on the Summers holding, we conclude that the detention of Andre was constitutionally permissible.\\n3. Pat-Down Search\\nAndre also challenges the police's right to conduct a pat-down search. He argues that such a search is unconstitutional pursuant to the U.S. Supreme Court's holding in Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).\\n(a) Relevant Case Law\\nPursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a police officer who reasonably believes that a person may be armed and dangerous is entitled for the protection of himself or herself and others to conduct a carefully limited search of the outer clothing of such person in order to discover weapons which may be used to assault him or her. See, State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997); State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990).\\nIn Ybarra, supra, a pat-down search was conducted on several patrons of a public tavern. The patrons were searched during the execution of a warrant to search the tavern and a bartender for controlled substances. The Court rejected the State's argument that despite a lack of probable cause to search Ybarra, the pat down was justified as a search for weapons under the Terry doctrine. The Ybarra Court held that \\\"[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.\\\" 444 U.S. at 92-93. The Court regarded the pat-down search to be a \\\"generalized 'cursory search for weapons.' \\\" 444 U.S. at 93-94. The Court observed that \\\"a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.\\\" Id. at 91.\\nWe do not find Ybarra to be controlling, because of its factual dissimilarity to the case before us. The Ybarra holding is limited by the facts of that case. Ybarra involved the patting down of customers at a tavern, whereas our case involves the patting down of occupants of a private residence. The reasons set forth by the U.S. Supreme Court in Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), to justify the detention of occupants of a private residence during the execution of a warrant apply with equal force to justify the patting down of occupants of a private residence during the execution of a search warrant. The execution of a warrant to search for controlled substances may give rise to sudden violence and other frantic efforts. See id. Furthermore, the search warrant provides an objective justification for the police to believe those in the residence are engaged in criminal activity and are armed and dangerous. Id.\\nIn People v. Thurman, 209 Cal. App. 3d 817, 257 Cal. Rptr. 517 (1989), a California appeals court addressed a situation factually similar to that before us. In distinguishing Ybarra, supra, the court stated:\\nUnlike a business open to the general public, a private residence does not attract casual visitors off the street. When the private residence has been judicially determined as the probable site of narcotic transactions, the occupants are very likely to be involved in drug trafficking in one form or another. Moreover, because of the private nature of the surroundings and the recognized propensity of persons \\\"engaged in selling narcotics [to] frequently carry firearms to protect themselves from would-be robbers,\\\" [citations omitted] the likelihood that the occupants are armed or have ready accessibility to hidden weapons is conspicuously greater than in cases where, as in Ybarra, the public freely enters premises where legal business is transacted.\\n209 Cal. App. 3d at 824-25, 257 Cal. Rptr. at 520-21. The Thurman court rejected the defendant's argument that the police had no reason to believe he was armed and dangerous and that therefore, under Terry, supra, the search was unlawful. The court stated:\\nWe have no hesitation whatever in holding that [the officer] acted reasonably and prudently in conducting the pat search of [the defendant] in the circumstances. Here, a neutral and detached magistrate had judicially approved a warranted search for evidence of drug trafficking at the private residence where appellant was found. The officers whose duty required them to execute the warranted search were thus well aware they were engaged in an undertaking fraught with the potential for sudden violence. They were\\nnecessarily cognizant of the very real threat that the occupants of the residence were within an environment where weapons are readily accessible and often hidden, nor could they discount the possibility that one or more of the individuals found inside were personally armed.\\n. . That [the defendant's] posture, at that moment, was non-threatening does not in any measure diminish the potential for sudden armed violence that his presence within the residence suggested. To require an officer to await an overt act of hostility, as [the defendant] suggests, before attempting to neutralize the threat of physical harm which accompanies an occupant's presence in a probable drug trafficking residential locale, would be utter folly.\\n209 Cal. App. 3d at 823, 257 Cal. Rptr. at 520. Other jurisdictions have adopted the Thurman holding. See, State v. Guy, 172 Wis. 2d 86, 492 N.W.2d 311 (1992), cert. denied 509 U.S. 914, 113 S. Ct. 3020, 125 L. Ed. 2d 709 (1993); State v. Alamont, 577 A.2d 665 (R.I. 1990); State v. Zearley, 444 N.W.2d 353 (N.D. 1989). See, also, State v. Trine, 236 Conn. 216, 673 A.2d 1098 (1996) (applying reasoning of Summers, supra, to justify pat-down search of occupants of private residence during execution of search warrant). Although we recognize that some jurisdictions have applied the Ybarra holding to pat-down searches of occupants of private residences, see, United States v. Ward, 682 F.2d 876 (10th Cir. 1982); United States v. Cole, 628 F.2d 897 (5th Cir. 1980), cert. denied 450 U.S. 1043, 101 S. Ct. 1763, 68 L. Ed. 2d 241 (1981); State v. Carrasco, 147 Ariz. 558, 711 P.2d 1231 (Ariz. App. 1985); Lippert v. State, 664 S.W.2d 712 (Tex. App. 1984); State v. Broadnax, 98 Wash. 2d 289, 654 P.2d 96 (1982), we find more persuasive the line of cases applying the Thurman holding.\\n(b) Resolution\\nIn the case before us, the police were executing a search warrant on a private residence. The warrant authorized the search for controlled substances and other items related to the distribution of controlled substances. The police were aware that according to informants, the only use of the apartment to be searched was to distribute crack cocaine. When the police forcibly entered the apartment, there were several individuals, including Andre, present. Andre was found on a bed in a bedroom and matched the general description provided in the warrant of the person dealing drugs from that apartment. As discussed above, it was proper for the police to detain Andre. Under these circumstances, we conclude that Miller's belief that Andre could be armed and dangerous was reasonable. Therefore, the pat down of Andre for weapons for officer safety reasons was constitutionally permissible.\\n4. Scope of Pat-Down Search\\nNext, we address the scope of the pat-down search. Andre argues that the officer exceeded the lawful scope of a pat-down search when the officer had him remove his shoes and patted his socks. During the pat down of Andre's socks, the officer felt an object which he \\\"immediately\\\" recognized to be crack cocaine.\\nAs discussed above, police may conduct a limited search of the outer clothing of an individual they reasonably believe is armed and dangerous. See, State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997); State v. Caples, 236 Neb. 563, 462 N.W.2d 428 (1990). Neither this court nor the Nebraska Supreme Court has addressed whether such a search may include the removal of high-top shoes and the patting down of socks. However, other states which have addressed issues similar to those before us have found that a pat down which includes the removal of a shoe and patting down of a sock, or a look into a boot, is legal if the officer conducted the search with the appropriate intentions, that is, to reveal weapons. See, Hodges v. State, 678 So. 2d 1049 (Ala. 1996); Stone v. State, 671 N.E.2d 499 (Ind. App. 1996); State v. Mitchell, 87 Ohio App. 3d 484, 622 N.E.2d 680 (1993); Thompson v. State, 551 So. 2d 1248 (Fla. App. 1989); Commonwealth v. Borges, 395 Mass. 788, 482 N.E.2d 314 (1985).\\nIn the case before us, Miller testified at the suppression hearing that his purpose in having Andre remove his high-top tennis shoes and in patting down Andre's socks was to search for weapons. Miller testified that based on his training and experience, people encountered while a warrant to search for controlled substances is being executed often have weapons hidden in their socks and shoes. According to Miller, weapons that may be hidden in socks and shoes include knives and razor blades.\\nIt is clear from the record that Miller had Andre remove his shoes and patted down Andre's socks with the proper intentions, that is, to ensure that Andre had no hidden weapons. Therefore, we conclude that the scope of the pat-down search was proper.\\n5. Seizure of Crack Cocaine\\nFinally, we address the seizure of the crack cocaine from Andre's sock. While patting down Andre's sock, Miller felt an object which he knew \\\"immediately\\\" was crack cocaine. He then removed the object from the sock and arrested Andre.\\nA Terry search is ordinarily limited to outer clothing. See Caples, supra. However, in Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the U.S. Supreme Court held that an officer may make a warrantless seizure of nonthreatening contraband detected during a pat-down search permitted by Terry, so long as the search stays within the bounds marked by Terry. The Court reached its conclusion by drawing an analogy to the plain-view doctrine. The Court stated:\\nIf a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified[.]\\n508 U.S. at 375-76. This has become known as the plain-feel doctrine. See State v. Craven, 253 Neb. 601, 571 N.W.2d 612 (1997).\\nIn State v. Craven, 5 Neb. App. 590, 560 N.W.2d 512 (1997), affirmed 253 Neb. 601, 571 N.W.2d 612, a panel of this court applied the plain-feel doctrine. This application of the plain-feel doctrine was affirmed by the Nebraska Supreme Court. In Craven, a police officer felt an object during a pat-down search which, based upon his training and experience and without manipulation or further examination, he recognized as an object of criminal activity. As a result, the officer was justified in plac ing his hand in a pocket in order to retrieve what he reasonably believed to be contraband: See id.\\nSimilarly, in the case before us, Miller testified that upon feeling an object inside Andre's sock during the pat-down search, he \\\"immediately\\\" recognized it as crack cocaine, based upon his training and experience. As a result, Miller possessed a reasonable belief that Andre was illegally in possession of a controlled substance. Therefore, based on Craven, supra, Miller was justified in placing his hand inside Andre's sock and retrieving the crack cocaine.\\nV. CONCLUSION\\nIn summary, the detention of Andre, the subsequent pat-down search, and the seizure of the crack cocaine were proper. As a result, Andre's motion to suppress was properly denied. Because the crack cocaine was properly admitted at trial, there was sufficient evidence for the juvenile court to find Andre to be a child as defined by \\u00a7 43-247(2). Therefore, Andre's second assigned error is without merit.\\nWe affirm the judgment of the separate juvenile court of Lancaster County.\\nAffirmed.\"}"
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+"{\"id\": \"2725601\", \"name\": \"Sophia L. Bennett et al. v. Charles C. McDonald\", \"name_abbreviation\": \"Bennett v. McDonald\", \"decision_date\": \"1900-03-21\", \"docket_number\": \"No. 10,422\", \"first_page\": \"47\", \"last_page\": 51, \"citations\": \"60 Neb. 47\", \"volume\": \"60\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:20:03.579192+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sophia L. Bennett et al. v. Charles C. McDonald.\", \"head_matter\": \"Sophia L. Bennett et al. v. Charles C. McDonald.\\nFiled March 21, 1900.\\nNo. 10,422.\\n1. Evidence: Influence-on Jury. The admission o\\u00ed immaterial evidence which could not have influenced the minds of the jury is not reversible error.\\n2. Sale of Property! Fraud: Rights of Creditors: Res Gestas: Conversations of Ven-dor and Vendee. In the trial of an action in which a sale of property is questioned as having been made in fraud of the rights of creditors, it is proper to receive in evidence conversations of the vendor and vendee in negotiating and consummating- contracts out of which arose the consideration for the alleg-ed fraudulent transfer.\\n3.--: -: -: Evidence: Motives or Conduct of Parties. In the trial of actions in which a fraudulent transfer of property is alleg-ed, any evidence which reasonably tends to illumine the transaction and exiflain the motives or conduct of the parties is admissible.\\n4. District Court: Judicial Notice: Contents of Brief. The district court will not take judicial notice of the contents of a brief filed by one of the litigants in this court when the cause was pending- here on appeal or error.\\n5. Instructions Not Based on Evidence. It is not error to refuse instructions which are not based 'on the evidence.\\n6. Evidence Sufficient. Evidence examined, and found sufficient to support the judgment.\\nError to the district court for Douglas county. Tried below before Dickinson, J. Rehearing of case found on page 234, 59 Nebr.\\nJudgment below affirmed.\\nHall & MeOulloch, for plaintiffs in error:\\nThis was a transaction between relatives, and the burden of proving actual consideration, and that the transaction was in good faith, was upon McDonald, the pur chaser. Plummer v. Rummel, 26 Nebr., 142; Steinkraus v. Korth, 44 Nebr., 777.\\nW. W. Morsman and E. M. Morsman, contra,\\nas to Iona fides of transaction between relatives and as to the burden of proof, cited: Thompson v. Loenig, 13 Nebr., 386; Fisher v. Herron, 22 Nebr., .185; Bartlett v. Oheeshrough, 23 Nebr., 767.\\nA preponderance was sufficient. Stevens v. Garson, 30 Nebr., 550; Oarson v. Stevens, 40 Nebr., 112; McEvony v. Rowland, 43 Nebr., 97; Steinkraus v. Korth, 44 Nebr., 777. There is no authority for holding that the fact must be clearly proven. Such a rule requires more than a preponderance, and in a civil case, a preponderance is all that is required.\", \"word_count\": \"1574\", \"char_count\": \"9277\", \"text\": \"Sullivan, J.\\nThis is the second hearing of this case. The events in which the litigation had its origin are chronicled in the former decision (Bennett v. McDonald, 59 Nebr., 234), reversing the judgment of the district court for what was conceived to be error in the admission of testimony given by McDonald as a witness in his own -behalf. A further and more thorough examination of the record has given us a clearer and better view of the scope and purpose of the evidence held to have been erroneously admitted, and we are now convinced that we were entirely wrong upon both points decided adversely to the plaintiff.\\nIn regard to the first point, it was said that the witness should not have been permitted to testify that he directed Conroy to invoice the stock in question at wholesale prices, because that fact was not relevant to the \\u2022 issue, and may have induced the jury to believe that the transaction under investigation was an honest one. It may be c\\u00f3nceded that the evidence had no legitimate tendency to prove that the sale by Irish to McDonald was made in good faith and without any intent to hinder, delay or defraud the vendor's creditors; but, considering tbe purpose for wbicb tbe testimony, was offered, and its absolute isolation from tbe other facts developed at tbe trial, we can not believe that it was heeded by tbe jury, or that it swayed them in the slightest degree in favor of tbe plaintiff's theory of tbe case. Tbe invoice was made before tbe sale of tbe stock, and bad, so far as tbe record shows, no relation to, or connection with, that transaction. It was not received in evidence and tbe jury were not advised of its contents. It bad, in our judgment, no bearing whatever upon tbe good faith of either McDonald or Irish. Tbe questions propounded to McDonald were evidently designed to lay tbe foundation for other evidence touching tbe value of tbe property in controversy, at tbe time it was seized by Bennett under tbe order of attachment. Tbe foundation was not fully established, and tbe invoice was not used. It is possible, of course, that tbe jury may have regarded tbe direction given by McDonald to Conroy as evidence bearing upon tbe principal fact in dispute; but if so, they must have acted irrationally, and this we will not presume. Few verdicts would stand, if courts proceeded on tbe assumption that every item of irrelevant or immaterial evidence admitted during tbe trial of a cause was, through tbe perversity of tbe jury, permitted to tell in favor of tbe successful party.\\nWe pass now to tbe consideration of tbe third and fourth assignments of error, wbicb were sustained by our former decision. These assignments challenge tbe correctness of some rulings of tbe court admitting in evidence certain conversations between McDonald and Irish. It is contended by counsel for tbe defendants that proof of what was said between tbe parties is mere hearsay; and* we were induced on tbe former bearing to so bold. A little reflection, with a fuller comprehension of tbe record, has satisfied us we were wrong. Tbe alleged consideration for tbe transfer in question was an indebtedness, emerging, it is claimed, out of a series of transac tions between Irish, acting for himself, and McDonald acting as the agent of his wife. Whether this indebtedness was genuine or fictitious, real or simulated, was the nub'and core of the whole controversy. To show that it was real, and that it was the ultimate and honest product of all the dealings between the parties, it was proper that every one of their business transactions should be dissected and its elements laid bare. The balance claimed to be due from Irish to McDonald was the result of a number of contracts, settlements and agreements for the correction of errors. To prove these things, it was necessary to show what the parties said to each other in relation to the several matters at the time they were under consideration. Such evidence was clearly original, and was, in fact, the only means by which it could be proven that contract relations existed between them. \\\"Where there is a series of transactions,\\\" say the supreme court of Indiana, \\\"bound together and resulting in one consummated contract, all that is said and done by the parties in the course of their negotiations, and as part of the consummated agreement, are competent in all cases where they are relevant and affect the question of consideration.\\\" Colt v. McConnell, 116 Ind., 249, 255. Authorities in support of our conclusion that the rulings of the trial court upon this branch of the case were correct are not wanting. Kenney v. Phillipy, 91 Ind., 511, 513; Porter v. Walts, 108 Ind., 40; Paul v. Berry, 78 Ill., 158; Kimball v. Huntington, 10 Wend. [N. Y.], 675; Bradner, Evidence, 345.\\nThere are some other assignments of error based on the admission and rejection of testimony, but they do not merit special consideration. In actions of this character, both parties are entitled to a wide range of evidence. Anything reasonably tending to illumine the transaction under investigation by explaining the motives or conduct of the parties is generally received, and given to the jury for what it is worth. In dealing with the evidence, the trial court exercised admirable judgment, and has made a record which, for its size, is singularly free from rulings of doubtful propriety.\\nIt is claimed that the law of the case as settled in Bennett v. McDonald, 52 Nebr., 278, was disregarded at the trial. The brief referred to in that decision is not in the record before us, and the district court was not bound to take judicial notice of its contents. The court, therefore, did not err in making its rulings in accordance with the general law.\\nIt is argued that the verdict is contrary to the ninth instruction, which informed' the jury that the written statements made by Irish to the McDonalds were not conclusive evidence that the business was profitable, and that it was necessary to show, in some way, an actual net gain. There was other evidence of profits. Besides, the jury might, under the instruction, base their finding on the written statements referred to, although regarding them as disputable evidence of the facts to which they bore witness.\\nThe defendants tendered instructions whereby, they sought, to submit to the jury the theory that Irish and Mrs. McDonald were partners. These requests were properly refused, because there was no evidence tending to prove a partnership, and for other sufficient reasons which it is. needless to mention.\\nThe contention that the verdict is not supported by sufficient evidence can not be sustained. Two juries have found in favor of the plaintiff. Both verdicts were sustained by the trial court, and we see no special reason to doubt the justice of plaintiff's claim. The judgment heretofore rendered by this court is vacated, and the judgment of the district court\\nAffirmed.\"}"
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+"{\"id\": \"2775949\", \"name\": \"William A. Harrison et al., appellants, v. Frederick J. Harrison et al., appellees\", \"name_abbreviation\": \"Harrison v. Harrison\", \"decision_date\": \"1907-11-21\", \"docket_number\": \"No. 14,992\", \"first_page\": \"103\", \"last_page\": 112, \"citations\": \"80 Neb. 103\", \"volume\": \"80\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:31:38.762017+00:00\", \"provenance\": \"CAP\", \"judges\": \"Epperson and Good, CO., concur.\", \"parties\": \"William A. Harrison et al., appellants, v. Frederick J. Harrison et al., appellees.\", \"head_matter\": \"William A. Harrison et al., appellants, v. Frederick J. Harrison et al., appellees.\\nFiled November 21, 1907.\\nNo. 14,992.\\n1. Specific Performance: Oral Contract: Evidence: Performance. The law is well settled in this state that an oral agreement to convey real estate will be specifically enforced where the evidence of such agreement is clear arid satisfactory, and the plaintiff has fully performed on his part.\\n2. -: -: -. Where the acts performed by the plaintiff tend to show, not only that there was an agreement, but also throw some light on the nature of that agreement, the evidence cannot be said to rest wholly in parol, the parol evidence being auxiliary to the proof afforded by the case itself.\\n3. Declarations against interest cannot be annulled or explained away by. counter declarations.\\nAppeal from the district court for York county: Arthur J. Evans, Judge.\\nAffirmed.\\nCharles F. Stroman and Gilbert Bros., for appellants.\\nPower <\\u00a3- Meelcer, F. J. Harrison and E. F. Harrison, contra.\", \"word_count\": \"3358\", \"char_count\": \"18323\", \"text\": \"Duffie, C.\\nThis action was brought to partition the southeast quarter of section 29, township 10, of range 2, in York county, Nebraska. The land was owned by James Harrison, who died intestate in February, 1905, leaving as his only heirs the plaintiffs William. A. Harrison, a son, Hattie E. Shepardson, a married daughter, and the defendant Frederick J. Harrison, his youngest son. The following facts are not in dispute: The wife of James Harrison, the decedent, and the mother of the children above named, died in 1873, in the state of Iowa, where the family then lived. At the time of their mother's death William A. Harrison was about six years old, Frederick J. about three years, and Hattie but a few weeks old. Some four years after the death of their mother, the children William A. and Hattie E. came to York county, Nebraska, with their grandfather, Frederick J. and his father remaining in Iowa until about seven years later, when they also came to York county. The father never remarried, and, after moving to York county, James Harrison, who was a stone mason, continued to work at his trade, boarding most of the time at restaurants and hotels up to the year 1893. In the year 1890 James Harrison and Frederick J. went to Denver, Colorado, where Frederick secured employment as an apprentice to a plumber of that city, and during his employment there for less than a year gained some knowledge of the trade. In the summer of 1891 he came to Lincoln, Nebraska, and his father returned to York county. The farm in question was purchased by the father in the year 1892, and in the spring of 1893 he and his son Frederick J. moved upon the farm, living there together until 1898, when Frederick J. was married, bringing his wife to the farm, where they continued to live with the father until his death in February, 1905. In the meantime William A. Harrison had married, and was'living in the state of Colorado. The daughter Hattie had married one Shepardson and was living-with her husband in York, county, some three or four miles distant from her father's farm. After the death of James Harrison, Frederick J. continued in possession of the farm, asserting title thereto under an alleged oral agreement with his father. This action for partition was commenced by his brother and sister, and in an answer and cross-bill filed by Frederick J. it is alleged that, from the time that his father came to York county in 1884 until the latter part of 1891, he continued to work at his trade as a mason in the city of York, boarding and lodging first at one place and then another, having no fixed place of abode, and none of his children or other relatives with him; that, during the latter part of the year 1891 and the early part of 1892, his father urged him to give up his plan of pursuing the plumber's trade, and to make arrangements so that they could live together during the remainder of his father's life, and, as an inducement to do so, his father offered to purchase a farm in York county where they would malee a home and live together; that, in consideration thereof, upon the father's death, the farm should become the property of the said Frederick J. Harrison ; that he accepted this proposition and came to York county from Lincoln in the spring of 1892, and, with his father, selected the farm in question, his father paying $4,000 therefor; that the farm was leased at the time, so that they did not occupy it until the spring of 1893, when they took possession together under their said oral agreement, and from that time forth defendant continued in possession with his father and occupied the same until his father's death. It is alleged that he fully performed the agreement upon his part, and that, because of said agreement and his performance thereof, he became the owner of said farm, and that the plaintiffs have no right, title or interest therein. The prayer is for a decree quieting his title. The district court entered a decree quieting title in the defendant Frederick J. Harrison, from which the plaintiffs have appealed.\\nIn a brief of exceptional merit plaintiffs insist that this court has gone to extreme lengths in enforcing oral agreements for the conveyance of real estate, and that there is danger of wholly ignoring the statute of frauds and the statute of wills in a too liberal policy of allowing the title to real estate to be questioned or ordered transferred from one party to another on evidence which is wholly oral. It is said that there were special equities in the case of Kofka v. Rosicky, 41 Neb. 328, and in Teske v. Dittberner, 63 Neb. 607, which appealed to the court for a relaxation of the rigid rule requiring evidence of the clearest and most satisfactory character to justify a court in decreeing specific performance of an oral contract for the conveyance of real estate; but, as is well said.in Kofka v. Rosicky, supra, the statute of frauds should not be so rigidly adhered to as to accomplish a fraud against one of the persons affected by the contract to which it is sought to be applied, and the discretion of the court ought to be applied to each particular case when the general rules and principles which govern the court will not furnish any exact measure of justice between the parties. The statute itself recognizes the right of a court of equity to establish a claim against, or a right to a conveyance of, real estate by oral evidence in providing that \\\"nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance.\\\" Comp. St. 1905, ch. 32, sec. 6. By a series of decisions ending with Peterson v. Estate of Bauer, 76 Neb. 661, this court has firmly established the rule that oral contracts relating to interests in real estate will be specifically enforced when the evidence establishing such a contract is clear and satisfactory. In the case last cited it is said by Mr. Justice Letton : \\\"It is impossible to reconcile the views of the various courts of the United States upon the questions presented, but this court has adopted the rule in Kofka v. Rosicky, supra, and we are content to abide by the doctrine of that case as being the most apt to prevent injustice and to do equity. In such a case, if the trial court, bearing in mind the ease with which claims may be presented when the other party to the alleged contract is dead, carefully scrutinizes the evidence and weighs the same, taking fully into consideration the nature of the claims and the known inaccuracy of memory with reference to oral statements made years before the time of the trial, we think the evil consequences to estates which may accrue and which the counsel for the defendant so strongly set forth may be greatly minimized. The difficulty of proving contracts made many years before, when the lips of both participants are sealed, one by death and the other by the law, operates to the disadvantage of the claimant, and it may prevent a just recovery in as many cases as the ease with which claims may be trumped up may operate to spoliate estates.\\\" That this court does not stand alone in the rule adopted is shown from the following cases: Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 305; Winne v. Winne, 166 N. Y. 263, 82 Am. St. Rep. 647; Twiss v. George, 33 Mich. 253; Svanburg v. Fosseen, 75 Minn. 350, 74 Am. St. Rep. 490; Brinton v. Van Cott, 8 Utah, 480; Davies v. Cheadle, 31 Wash. 168; McCullom v. Mackrell, 13 S. Dak. 262; Bryson v. McShane, 48 W. Va. 126, 49 L. R. A. 527; Howe v. Watson, 179 Mass. 30.\\nIt being settled that the statute of frauds does nol stand in the way of the enforcement of contracts of the character alleged by the defendant, the important question in this case is: Does the evidence entitle him to the relief awarded by the district court? In the fall of the year 1891 the defendant was rooming with O. J. Wineingen in the city of Lincoln. One evening 'during the fall he brought his father to the house, where lie remained with him during the night. Mr. Wineingen testified that in a talk between himself, the' defendant and defendant's father, had during the evening and before bedtime, the old gentleman said that \\\"he wanted Fred to go with' him and live with him; that he had no home; that he had one boy that he tried to help, but it seemed that he did not take any interest in him, and thought if he could get Fred to go home with him he was going to buy a farm, or had a farm; I won't s\\u00e1y as to that, but he wanted to get him with him to live with him, and if Fred wanted to get married he would have a home with Fred, and Fred would have what was left.\\\" Mrs. Wineingen testified that the old gentleman said \\\"that he had come to see if he could get Fred to go home with him; that he told Fred that he would get a farm if he would come aud go home with him aud stay with him, and he said that when he was through with it Fred could have it.\\\" Again she said: \\\"He said he had come down to see if he could not persuade Fred to go home with him, and that he would buy a piece of land or farm if he would come and live with him. He said: 'When I am through with it, it shall be his.' \\\" This conversation between the old gentleman and witness was had in Fred's presence. The following morning Fred and his father met C. W. McKee at the depot in Lincoln. The following question was asked McKee: \\\"Will you please tell the court just what conversation you had, what was said between James Harrison, Fred's father, and yourself in Fred's presence there at the time, and what Fred said?\\\" He answered: \\\"Why, yes; Fred introduced me to his father, and we stood and talked a little bit, as people generally when they meet; I don't know as I can recall, something about the weather, how he was getting along, what lie had been doing, something to that effect, and Fred Harrison says: 'What do you think?' he said: 'The old man is going to take me home with him.' I said: 'Is that so? Maybe that will be a very good thing.' Then Mr. Harrison, Feed's father, said: 'I came down here to persuade Fred to go home with me,' and, he says, 'I am going to buy a farm,' he said, 'and I want Fred to make a home for me as long as I live, and when I am gone,' he said, 'the farm is Fred's.' \\\" Sidney Roberts, who met them on this occasion, testified that Fred introduced him to his father; that the old gentleman said that he wanted to make a home for him and Fred; that he had no particular home, and that he would like to get a place where he could make a home; that he thought he could get a place near York; that Fred would stay with him, and when he died he would give Fred the farm; that when he died Fred could have it, it would be Fred's place. \\\"I told Fred it would be a good idea for him to go with his father; and he replied that he believed that he would.\\\" Mrs. Briley testified that some time' in tlie year 1892 Fred and liis father came to her house after the supper hour, and Fred's father apologized for making her get an extra supper, and stated why it was; that they had been out in the country looking at a farm that he was intending to buy. He then went on and told her that he was going to buy a farm to make him and Fred a home; that he had got tired of boarding around and knocking around for a home; that he and Fred always got along well together, and that it would be nice for them both to have a home. During the time that Fred and his father were in possession of the farm the father talked witli his neighbors relating to the arrangement under which they were living there. Mr.\\\"E. F. Chittenden testified that \\\"he would come down Sundays and take dinner or supper, and, when he got to talking about the farm, I asked him why it was that he would go and buy a farm. He was not able to run it. He was a stone mason, and not able physically to work it. He told me that he bought it with the expectation of having it for Fred. He had made arrangements for Fred to take care of him, and he was to have the farm. That is what he told me, I think, two or three times, or that once anyhow.\\\" Further on he testified that the old gentleman said that Fred should have the farm when he was through with it himself; that Fred was to take care of him as long as he lived, and he expected Fred to have the farm; that is the reason he had it, not for his own use to farm himself, but he expected Fred to have it; that Fred was to have the place for taking care of him. Mr. Benner testified that \\\"James Harrison came to his place one day and seemed to be tired; that he asked him why he did not keep his money when he had it, and not lay it out in a farm, as he was not able to work; that the old gentleman replied that he bought it for Fred.\\\"\\nThe fact that Fred abandoned the plumber's trade and went to live with his father upon the farm, where he worked without pay of any kind for five years, or until his marriage in 1898, is a circumstance which, we think, strongly corroborative of the claim that this service was performed under the agreement alleged in the answer and cross-bill and testified to by the witnesses. Tt is not usual for a young man, after attaining his majority, to go on a farm, and live alone with his father, having no women folks to look after the housework, without pay as the services are performed or an agreement for remuneration in the future. Defendant testified on cross-examination that after his marriage in 1898 he received one-half the crop raised upon the farm, but he explained that this was under an agreement made at that time, his father recognizing that he should have a portion of the crop in order to properly care for his wife and supply her with such household necessities as she might require. All the circumstances make the defendant's claim consistent and probable. His father had reached an advanced age. He had no home. He was living at boarding houses and hotels, with no one but strangers to look after his wants. It was natural that he should desire a permanent home and the companionship and care of some near relative. Under these circumstances it is not difficult to believe that he should make such a contract with Fred as the witnesses have related. It is hardly fair to presume that he would ask his son to abandon a trade,, which he had partially learned, to live with him without pay until his death; and, as before stated, it is hardly probable that one who had his own way to make, in the world would care to give up some years of his life to the care of a farm -without some inducement held out to him to do so. The evidence, we think, conforms to the rule stated in Waterman, Specific Performance of Contracts, sec. 261, that the act performed tends to show, not only that there was an agreement, but also throws light on the nature of that agreement, so that neither the fact of an agreement nor even the nature of that agreement rests solely upon parol evidence, the parol evidence being auxiliary to the proof afforded by the circumstances of the case itself. A reading of the record convinces us that the agreement was made as alleged; that there has been complete perform anee on the part of the defendant, and that he is entitled to a specific performance of the contract.\\nThe testimony of the neighbors to declarations of James Harrison that the farm was bought for Fred and -that Fred was to have it after his death was taken by the court upon the principle that declarations against interest are always admissible, and that such declarations on the part of the decedent were in derogation of his absolute title to the farm; that he recognized and admitted that defendant had an equity in the land. The plaintiffs offered to show that on one or more occasions the decedent had made statements to the effect that he would not give his property to one child; that he would divide it equally among his children; that he stated that they wanted him to give the place to Fred, but he would not get it, and other similar declarations claimed to have been made by him. The court refused to receive this testimony, and error is claimed. Foster & Foster v. Nowlin, 4 Mo. 18, is cited as an authority to the effect that declarations made by a party since deceased, declaring that certain property belonged to him, was admissible and competent to rebut other evidence of his declaration to the contrary. We do not think that the weight of authority sustains this holding. In Wilson v. Patrick, 34 Ia. 362, it was held that antecedent declarations of a party that he was absolute owner of certain property were not admissible to counteract his admissions that he owned it as security only; and in Nutter v. O'Donnell, 6 Colo. 253, it is said that declarations against interest cannot be annulled or explained away by counter declarations. The rule announced in Foster & Foster v. Nowlin, supra, is no longer the law in Missouri, as that case is disapproved and the principle repudiated in Turner v. Belden, 9 Mo. 797.\\nThe evidence satisfies us that the decree entered by the district court was the proper one, that there is no reversible error in the record, and we recommend an affirmance of the judgment.\\nEpperson and Good, CO., concur.\\nBy the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is\\nAffirmed.\"}"
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+"{\"id\": \"2783336\", \"name\": \"Alice L. Licht, appellant, v. Association Services, Inc., a Nebraska corporation, et al., appellees\", \"name_abbreviation\": \"Licht v. Association Services, Inc.\", \"decision_date\": \"1990-11-30\", \"docket_number\": \"No. 88-861\", \"first_page\": \"616\", \"last_page\": 626, \"citations\": \"236 Neb. 616\", \"volume\": \"236\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:14:25.400138+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"parties\": \"Alice L. Licht, appellant, v. Association Services, Inc., a Nebraska corporation, et al., appellees.\", \"head_matter\": \"Alice L. Licht, appellant, v. Association Services, Inc., a Nebraska corporation, et al., appellees.\\n463 N.W.2d 566\\nFiled November 30, 1990.\\nNo. 88-861.\\nDonald B. Stenberg, of Stenberg Law Offices, for appellant.\\nRick L. Williams, of Peterson Nelson Johanns Morris & Holdeman, for appellees.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"word_count\": \"3052\", \"char_count\": \"18841\", \"text\": \"Caporale, J.\\nPlaintiff-appellant, Alice L. Licht, seeks to recover damages from her former corporate employer, defendant-appellee Association Services, Inc., and from defendants-appellees Bob Patterson and Alan Croson, cotrustees of a fund the corporation established for the postdissolution adjustment of claims against it. More specifically, Licht seeks to recover for accrued but unused vacation pay and for services rendered at the request of the corporation and cotrustees in winding up the corporation's affairs. The corporation filed a motion for summary judgment seeking dismissal of Licht's suit, Licht filed a motion for summary judgment against all defendants, and the cotrustees each filed a general demurrer. The district court denied Licht's motion, granted the corporation's motion, and dismissed Licht's petition as to all defendants without ruling on the demurrers filed by the cotrustees. Licht asserts the district court erred in (1) sustaining the corporation's motion, thereby dismissing her suit against it, (2) overruling her motion, and (3) dismissing her action against the cotrustees. We affirm in part, and in part reverse and remand for further proceedings.\\nThe corporation, which Licht had served as executive vice president, apparently filed its statement of intent to dissolve with the Secretary of State in early October 1985. On April 4, 1986, the corporation filed articles of dissolution with the Secretary of State, who in turn issued a certificate dated the same day reciting that such articles had been filed with his office. Neb. Rev. Stat. \\u00a7 21-20,104 (Reissue 1987) reads, in relevant part:\\nThe dissolution of a corporation... by the issuance of a certificate of dissolution by the Secretary of State... shall not take away or impair any remedy available to or against such corporation... for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution.\\nLicht filed her petition on Tuesday, April 5,1988.\\nConcluding that Licht filed her petition 1 day after the survival period of \\u00a7 21-20,104 had expired, the district court granted the corporation's motion for summary judgment. Licht presents several challenges to the dismissal of her suit: first, that the corporation did not comply with the statutory requirements for dissolution and was therefore never dissolved; second, that the document which the district court concluded is a certificate of dissolution is not such a certificate; third, that the survival period ended on April 5 rather than April 4, 1988; fourth, that the district court failed to rule on whether the corporation \\\"waived or extended its date of dissolution\\\" by establishing the trust and providing that it remain in existence for 2 years 1 day after the filing of the corporation's articles of dissolution; and fifth, that the district court failed to rule on whether the submission of one or more of her claims with the corporation constituted commencement of an action or proceeding within the meaning of the survival statute.\\nThe statutory provisions which Licht asserts the corporation failed to follow are Neb. Rev. Stat. \\u00a7 21-2086 and 21-20,125 (Reissue 1987). Section 21-2086(1) requires that a corporation mail to known creditors notice that the corporation has filed and recorded its \\\"statement of intent to dissolve\\\" with the Secretary of State and.the appropriate county clerk's office. The relevant portion of \\u00a7 21-20,125 requires the corporation to publish notice of its statement of intent to dissolve. The corporation is required to file proof of publication of this notice with the Secretary of State and with the county clerk of the county in which the registered office of the corporation is located.\\nLicht has stated that, to the best of her knowledge, no notice was ever mailed to her. Neither the corporation nor the cotrustees have disputed this claim. There is no evidence that notice of the filing of the statement was ever published, and the Secretary of State has certified that no proof of publication was ever filed with his office.\\nLicht was, however, aware the corporation was dissolving, since she worked on the dissolution before October 1985 and continued to work on it through early March 1986. Indeed, as noted earlier, one of her claims is based upon services rendered in preparing the corporation for dissolution. The question before us, therefore, is: What is the effect of the corporation's failure to follow the notice procedures set out in \\u00a7 21-2086 and 21-20,125 upon a claim filed by a party involved in the dissolution of the corporation? Licht proposes that this failure means the corporation did not fulfill all the prerequisites to dissolution and therefore was never legally dissolved. The corporation and cotrustees, on the other hand, contend that since Licht was already aware of the dissolution, she was not prejudiced by the corporation's inaction, and the failure to give notice should not defeat dissolution.\\nThe question is one of first impression for this court. Other jurisdictions have held that the failure to comply with all of the provisions of the relevant corporate dissolution statutes voids the dissolution as to creditors whose rights have been prejudiced thereby. See, Alpine Prop. Owners v. Mountaintop Dev., 365 S.E.2d 57 (W. Va. 1987); DSS v. Winyah Nursing Homes, Inc., 282 S.C. 556, 320 S.E.2d 464 (1984). See, also, Bonsall v. Piggly Wiggly Helms, Inc., 275 S.C. 593, 274 S.E.2d 298 (1981); 16A W. Fletcher, Cyclopedia of the Law of Private Corporations \\u00a7 8007.1 (Supp. 1990). Although these courts were not faced with unprejudiced creditors, the clear implication is that the dissolution would be valid as against them.\\nThe alternative approach championed by Licht is to void the dissolution in its entirety. She points to no cases from this or any other court adopting this approach but, rather, points to what she asserts is the main purpose of the dissolution statutes, the protection of creditors. The approach adopted in Alpine Prop. Owners and the other decisions cited above assures that creditors whose rights have been prejudiced by the corporation's failure to give notice will be protected; it thus satisfies the policy concern raised by Licht without voiding nonprejudicial dissolutions.\\nThe notice which \\u00a7 21-2086 requires be mailed to known creditors is notice that the corporation has filed and recorded a statement of intent to dissolve. Clearly, this notice is intended to inform the creditor that the corporation has begun the process of dissolution, so that the creditor can act on its claim before the survival period runs. Surely, Licht's involvement provided her with more detailed and current knowledge of the corporation's status than that which she would have gained had she received only a notice of the October 1985 filing of the corporation's intent to dissolve.\\nSection 21-20,125 requires that the corporation publish notice of its dissolution, thus giving constructive notice of the dissolution to unknown creditors and to the world at large. Obviously, a party's actual knowledge of a fact fulfills the purpose of a statutory requirement that constructive notice be given of that fact. See Universal C. I. T. Credit Corp. v. Vogt, 165 Neb. 611, 86 N.W.2d 771 (1957). Under the circumstances, Licht's rights could not have been prejudiced by the corporation's failure to publish notice. Indeed, we note that Licht has framed her challenge in terms of the corporation's failure to meet a condition precedent to dissolution, rather than upon any claim of prejudice, and that she offered no evidence of having been prejudiced.\\nBecause Licht had actual knowledge that the corporation was undergoing dissolution, her claim that the corporation's failure to mail and publish notice prevented its dissolution must be, and hereby is, rejected.\\nLicht next asserts that the document issued by the Secretary of State when the corporation filed its articles of dissolution is not, in law and fact, a certificate of dissolution as provided for in Neb. Rev. Stat. \\u00a7 21-2092 (Reissue 1987) of the Nebraska Business Corporation Act. She contends that the document merely certifies that articles of dissolution were filed. However, an affidavit by the Secretary of State identifies the document as a certificate of dissolution. While this affidavit does not answer whether the certificate is sufficient as a matter of law to trigger the running of the survival period set forth in \\u00a7 21-20,104, it does, since it is not rebutted, resolve the factual question as to whether the document was meant to serve as a certificate of dissolution.\\nAs to the legal sufficiency of the document, \\u00a7 21-2092 provides our only guidance. It sets out the following procedure by which a certificate of dissolution is issued:\\nThe original and a duplicate copy of such articles of dissolution shall be delivered to the Secretary of State, who shall, when all fees provided by law shall have been paid:\\n(1) File the original in his office;\\n(2) Return to the corporation or its representative the duplicate copy stamped with the date of filing in the office of the Secretary of State; and\\n(3) Issue a certificate of dissolution.\\nNothing in the statutory scheme sets forth any requirements as to the form or contents of the certificate of dissolution. Given that the Secretary of State is required to issue the certificate upon the filing of articles of dissolution and the payment of the required fees, there is little reason to draw a distinction between a document which certifies that articles of dissolution were filed and a certificate of dissolution, particularly when the issuer did not intend to draw any such distinction. Accordingly, the district court did not err in its conclusion that the document in question, under the circumstances of this case, is a certificate of dissolution for the purpose of triggering the period of survival. Whether the dissolution is subject to being voided with respect to creditors who did not otherwise have notice is, as suggested earlier, a different question.\\nLicht next contends that the district court erred in computing when the survival period ended, claiming that \\\" [t]wo years after-April 4, 1986 is April 5, 1988 \\u2014 the date the Petition was filed herein.\\\" Brief for appellant at 36. She, however, ignores Neb. Rev. Stat. \\u00a7 25-2221 (Reissue 1989), which provides the general rule for computing the passage of time. Thereunder,\\nthe period of time within which an act is to be done in any action or proceeding shall be computed by excluding the day of the act, event, or default after which the designated period of time begins to run. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a day during which the offices of courts of record may be legally closed____\\nIn application, when the period is given in terms of months or years, the last day of the period is the appropriate anniversary of the triggering act or event, unless that anniversary falls on a Saturday, Sunday, or court holiday. Applied to the facts before us, this means that, as the district court determined, the statutory survival period expired April 4, 1988. See, State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989); State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981). Cf. State v. Oldfield, ante p. 433, 461 N.W.2d 554 (1990) (applying State v. Jones).\\nLicht also claims that the corporation waived or extended its date of dissolution by establishing the trust with a life extending 2 years 1 day after the filing of the articles of dissolution. It is unclear exactly what she means by this, for corporate existence ceases upon filing and recording the articles of dissolution, and the date of dissolution of a corporation is the date the certificate of dissolution is issued. See \\u00a7 21-2092 and 21-20,104. If Licht is asserting that the corporation was unaffected by the issuance of the certificate of dissolution or that establishing the trust somehow postponed the effect of the issuance of the certificate, she is arguing against the language of \\u00a7 21-2092 and 21-20,104. If, on the other hand, she is contending that the corporation's actions waived the 2-year period contained in \\u00a7 21-20,104, her position requires further scrutiny.\\nWaiver is the voluntary and intentional relinquishment or abandonment of a known existing legal right, or conduct from which such a relinquishment can be inferred. Donaldson v. Farm Bureau Life Ins. Co., 232 Neb. 140, 440 N.W.2d 187 (1989); Farmers State Bank v. Farmland Foods, 225 Neb. 1, 402 N.W.2d 277 (1987). Section 21-20, 104 is a survival statute, not a statute of limitations, and, as such, gives life to claims which would otherwise be extinguished. Van Pelt v. Greathouse, 219 Neb. 478, 364 N.W.2d 14 (1985). Absent the survival statute, a dissolved corporation could not sue or be sued. Id.; Christensen v. Boss, 179 Neb. 429, 138 N.W.2d 716 (1965). Therefore, the rights created by the statute are the right of the corporation to sue during the survival period and the right of others to sue the corporation during that same period. The only right available to the corporation to waive is its own right to sue. Since any waiver of this right would not extend the survival period of another's right to sue, it could not help Licht.\\nLicht next cites Neb. Rev. Stat. \\u00a7 21-20,135 (Reissue 1987) to support her proposition that \\\"[a] corporation may voluntarily extend the date of its dissolution.\\\" Brief for appellant at 28. The portion of the statute Licht relies upon creates a procedure for, in specified circumstances, the \\\"extension, restoration, renewal or revival\\\" of a corporation's existence \\\"before the expiration of the time limited for its existence.\\\" The statute does not, however, come into play, for even if the statute otherwise applies to the circumstances of this present case, a matter we need not and do not decide, there is no evidence that the corporation filed with the Secretary of State the certificate required by a portion of the statute to which Licht does not refer.\\nFinally, in regard to the corporation's motion, Licht asserts that notwithstanding her failure to file her petition until April 5, 1988, she nonetheless commenced an \\\"action or other proceeding\\\" within the meaning of \\u00a7 21-20,104 by filing a claim with the corporation before the survival period had run. To support her position, she cites Connors v. Darryll Waggle Const. Inc., 631 F. Supp. 1188 (D.C. 1986). Connors involved an action brought under the federal Employee Retirement Income Security Act of 1974 against a dissolved corporation. The court found that the plaintiff's notice and demand for payment constituted a commencement of action or other proceeding for the purposes of an Illinois survival statute essentially identical to \\u00a7 21-20,104. Connors, however, is inapplicable, for in that case the notice and demand for payment was the first step in a claim resolution procedure required by the federal act and, as such, clearly constituted the commencement of a proceeding; in the case before us, Licht's notice to the corporation is not required by nor part of any statutory or contractual procedure. Neb. Rev. Stat. \\u00a7 25-217 (Reissue 1989) tells us that an action is commenced on the date the petition is filed with the court.\\nA party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts and the moving party is entitled to judgment as a matter of law. Mason State Bank v. Sekutera, ante p. 361, 461 N.W.2d 517 (1990). The foregoing determinations compel the conclusion that insofar as the corporation's motion is concerned, there exists no genuine issue as to any material fact or as to the ultimate inferences which may be drawn therefrom and that it is entitled to judgment as a matter of law. It therefore necessarily follows that the district court did not err in sustaining the corporation's motion for summary judgment, thereby dismissing Licht's suit against it.\\nThe second assignment of error, claiming the district court erred in overruling Licht's motion for summary judgment, is controlled by the rule that although the denial of such a motion is not a final order and thus not appealable, when adverse parties have moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all the motions for summary judgment and may determine the controversy which is the subject of those motions, making an order specifying the facts that appear without substantial controversy and directing such further proceedings as it deems just. See Matson State Bank v. Sekutera, supra.\\nThe determination that the corporation is entitled to summary judgment necessarily means that the district court did not err in overruling Licht's motion for summary judgment against the corporation.\\nLeft for consideration is the third and final assignment of error, which questions the propriety of the district court's dismissal of Licht's suit against the cotrustees. Licht urges that action was erroneous because the cotrustees were not parties to the corporation's motion for summary judgment and because different factual and legal issues are implicated. She is correct.\\nSince the cotrustees did not file a motion for summary judgment against Licht, the overruling of her motion as to them is not a final order, and we are therefore without jurisdiction to review that ruling.\\nThe matter pends against the cotrustees on unresolved demurrers. Thus, whether the expiration of the survival period prevents her from stating a cause of action against the cotrustees derived from claims against the corporation, or whether she has otherwise stated a cause of action against them based on their own independent acts, are questions not yet ripe for appellate review. See Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980).\\nAccordingly, we affirm the district court's grant of the corporation's motion for summary judgment, reverse its dismissal of the suit against the cotrustees, and remand for further proceedings consistent with this opinion.\\nAffirmed in part, and in part reversed and REMANDED FOR FURTHER PROCEEDINGS.\"}"
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+"{\"id\": \"2826308\", \"name\": \"Charles R. Poston v. State of Nebraska\", \"name_abbreviation\": \"Poston v. State\", \"decision_date\": \"1909-01-23\", \"docket_number\": \"No. 15,927\", \"first_page\": \"240\", \"last_page\": 246, \"citations\": \"83 Neb. 240\", \"volume\": \"83\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T00:26:26.352573+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rose, J., not sitting.\", \"parties\": \"Charles R. Poston v. State of Nebraska.\", \"head_matter\": \"Charles R. Poston v. State of Nebraska.\\nFiled January 23, 1909.\\nNo. 15,927.\\n1. Criminal Law: Assignment of Errors: Motion for New Trial. In a case brought to this court by a petition in error, exceptions to the giving or refusing of instructions will not be considered unless such rulings are specifically assigned in the motion for a new trial.\\n2. Witnesses: Cross-Examination. The rule' that the right to cross-examine a witness is confined to matters brought out in his direct examination, obtains in a criminal prosecution the same as in a civil action, and a defendant in such prosecution will not be permitted to 'prove matters of defense upon the cross-examination of a witness for the state, where such matters are not brought out or suggested by the direct examination.\\n3. Intoxicating Liquors: Keeping for Unlawful Sale: Evidence. In a prosecution for a violation of the provisions of section 7170, Ann. St. 1907, making it a crime for a person to keep and have in his possession intoxicating liquor for the purpose of unlawful sale, the state chemist, who analyzed the' liquor found in the defendant\\u2019s possession, is a competent witness to testify as to the per cent, of alcohol contained therein, and, where such liquor is designated in the information as an intoxicating liquor called \\u201cbeer,\\u201d it is competent for such witness to give the amount or per cent, of alcohol contained therein, and the amount or per cent, of alcohol contained in the different kinds of beer commonly sold and used in this state.\\n4. Witnesses: Cross-Examination: Incrimination. Where a defendant in a criminal case testifies in his own behalf, he is subject to the same rules of cross-examination as any other witness, and may be required to testify on his cross-examination as to \\u25a0 any matters brought out or suggested by him on his direct examination, and ordinarily he cannot avail himself of the objection that the evidence may incriminate him.\\n5. Intoxicating Liquors: Unlawful Sales: Evidence. Where it is shown in a criminal prosecution that certain liquor has been sold by the defendant from time to time as a beverage, it is competent for the state to prove that during such time certain persons had been seen in an intoxicated condition in the defendant\\u2019s place of business as tending to show that the liquor so sold was intoxicating in its effect.\\n6. Indictment and Information: Separate Counts: Election. In a criminal prosecution, -wiiere two or more counts are properly joined in an information, and there is evidence tending to prove the facts alleged in each of them, the state will not be required to elect upon which of the several counts it will rely for a conviction.\\nError to the district court for Harlan county: Harry S. Dungan, Judge.\\nAffirmed.\\nJohn Everson, for plaintiff in error.\\nWilliam T. Thompson, Attorney General, and Grant G. Martin, contra.\", \"word_count\": \"2199\", \"char_count\": \"12736\", \"text\": \"Barnes, J.\\nThe plaintiff in error, hereafter called the defendant, was prosecuted for a violation of the provisions of section 7170, Ann. St. 1907, making it unlawful for any per-, son to-keep for the purpose of sale, without a license, any malt, spirituous or vinous liquor in this state. The first count of the complaint charged defendant with keeping and having in his possession certain intoxicating liquor called \\\"barley mead,\\\" for the purpose of unlawful sale. The second count charged him with having in his possession, for the same purpose, certain intoxicating liquor called \\\"beer.\\\" The third count charged him with having in his possession certain intoxicating liquor called \\\"whiskey,\\\" for the purpose of sale without a license. There was a search and seizure of three barrels of liquor called \\\"barley mead,\\\" which was found in the defendant's possession. He was held to answer to the district court, where an information was filed against him by the county attorney charging the same offenses set forth in the complaint before the magistrate. His trial resulted in a conviction upon the first count of the information, and a verdict of not guilty as to the second count; the prosecution in the meantime having dismissed as to the third count. Defendant was thereupon adjudged to pay a fine of $100 and the costs of prosecution, and. from that judgment he has brought the case here by petition in error.\\nHis first seven assignments of error relate to the giving and refusal to give certain instructions to the jury, and these assignments will be considered together.\\nWe find from an examination of the record that in the defendant's motion for a new trial no complaint was made of the giving or refusal to give ihstructions. It is therefore contended by the attorney general that this court has no right to consider any of these assignments. It seems clear that this contention must be sustained. In Cleveland Paper Co. v. Banks, 15 Neb. 20, it was held that \\\"under the general assignment, in the motion for a new trial, of 'errors of law occurring at the trial,' only such errors as appear in the bill of exceptions can be considered. If objection is made to any of the instructions, it must be specifically assigned.\\\" This rule, so far as we are able to ascertain, has been approved and followed in all cases where this question has arisen since the decision above mentioned. In Hamilton v. Goff, 45 Neb. 339, it was said: \\\"It has long been the rule of this court that exceptions to the giving or refusing of instructions will not be noticed unless such rulings are specifically assigned in the motion for a new trial\\\" \\u2014 citing Cleveland Paper Co. v. Banks, supra, and Omaha & R. V. R. Co. v. Walker, 17 Neb. 432. The rule announced in these cases is decisive of this question as presented by the record in the case at bar.\\nThe eighth assignment of error is as follows: \\\"The court erred in refusing the defendant the right to cross-examine the witness for the state, T. W. Carroll, and in sustaining the objections to such cross-examination.\\\" The record discloses that the examination in chief of this witness was limited to the seizure of the liquor in question on March 16, 1908. The rule that the cross-examination of a witness should be limited to matters brought out upon his examination in chief is too well settled to require the cita tion of authorities to support it. It is contended, however, that it was the purpose of the defendant by the cross-examination in question to bring out the fact that the liquor seized was not in his place of business on the 14th day of March, two days before its seizure; that it arrived after the 14th inst., and was stored away by him pending his investigation of his right to sell it. The record shows that he was permitted to ask the witness whether he made a search under the warrant on March 14, and the answer was, \\\"No.\\\" The witness was thereupon excused by the defendant with leave to recall him for further cross-examination, but he was not recalled during the trial. It also appears that the witness on direct examination testified that he searched the defendant's place of business on the 16th day of March, 1908, and was not interrogated upon his direct examination as to any other search or seizure than the one which occurred upon that day. So, technically speaking, the objection to the testimony attempted to be brought out by the defendant on the cross-examination of this witness was well founded. It further appears that the defendant was permitted to show the fact that the sheriff came to his place of business on the 14th day of March, and found no liquor in his possession; that on the 16th he accosted the defendant while at the depot, and told him that he desired to search his premises. This is the only search and seizure mentioned in the record. The defendant was permitted to show all of the facts and circumstances surrounding that transaction, and to introduce on his own behalf, testimony of the fact sought to be elicited from the sheriff by the' cross-examination in question. It is apparent, therefore, that he was not deprived of any substantial right by the refusal of the court to permit him to cross-examine the witness on that point.\\nIt is also contended that the court erred in receiving the testimony of the state chemist, Redfern, who analyzed the barley mead which .was found in the defendant's possession. It appears that the witness upon his redirect examination was permitted to testify as to the per cent, of alcohol contained in the different hinds of beer commonly sold and used in this state, naming them, as well as the per cent, of alcohol contained in the liqnor in question. The defendant admitted having this liquor in his possession, and testified that he had from time to time for at least a year previous to his arrest sold the same as a beverage. It was therefore competent for the state to prove that the liquor was intoxicating in character, and it was proper for the chemist to testify as to the amount or per cent.' of alcohol contained therein. Again, the defendant was charged in the second count of the information with having in iiis possession certain intoxicating liquor called \\\"beer\\\" for the purpose of selling the same without a license; and this evidence tended to show that the liquor seized belonged, to the class of intoxicating liquors called \\\"beer.\\\"\\nDefendant further alleges error in the refusal of the court to sustain his objections to Ms cross-examination while testifying in his oavu behalf. The record discloses' that after the defendant had admitted having the. liquor in question in his possession, and after having stated that he was not intending to sell it, but just keep it in order to ascertain whether he had the right to sell it or not, he was asked on cross-examination by the prosecuting attorney if it was not a fact that he had this kind of liquor in his possession before the time set forth in the information. Over the objections of his counsel that the question was not proper cross-examination,- he was required to answer. His reply was.: \\\"Yes, sir.\\\" He was then asked if he had been selling this same kind of liquor called barley mead, and over his objections he was required to testify, and stated that he had been selling it, and that he had been keeping it in his place of business for sale. It is now contended that this was not proper cross-examination, and that it required the defendant to giAre testimony incriminating himself. We think the examination was entirely proper. One of the questions for the consideration of the jury, according to defendant's own theory of the case, was whether or not his possession of the liquor was for the purpose of unlawful sale. He had voluntarily taken the. witness stand in his own behalf, and had testified to his intention and purpose in regard to that matter. It was therefore proper for the state to prove by him on cross-examination that he had theretofore been selling it as a beverage as tending to show the real purpose of such possession. Again, having voluntarily become a witness in his own behalf, he was subject to the ordinary rules of cross-examination, the same as any other witness.\\nComplaint is also made of the fact that the state was alloAved to introduce evidence tending to show that from time to time during the previous year certain persons had been seen in an intoxicated condition in the defendant's place of business. While this testimony was rather immaterial, it was apparently offered for the purpose of showing that the liquor in question which had been sold by the defendant was intoxicating in its effect. Taking this evidence in connection with the fact that the defendant had been openly selling this liquor under a claim that it was a nonintoxicant, this evidence was not only proper, but it was in no way prejudicial to the defendant's substantial rights.\\nFinally, it is contended that the court erred in not requiring the state to elect upon which of the two counts of the information it would rely for a conviction. In an-SAver to this complaint it is sufficient to say that the counts were properly joined, and there was evidence before the jury tending to sustain the charge contained in each of them. It also appears that the case Avas submitted to the jury upon proper instructions, and the defendant was found guilty upon the first count of the information, and not guilty as to .the second count. So it is apparent that he suffered no prejudice by the failure of the court to sustain his motion. In such a case the state will not be required to make an election.\\nA careful examination of the record satisfies us that the defendant bad a fair and impartial trial, that be was not restricted in any manner in tbe presentation of bis defense, and tbe judgment of tbe district court is therefore\\nAffirmed.\\nRose, J., not sitting.\"}"
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+"{\"id\": \"2828149\", \"name\": \"State of Nebraska, appellee, v. Several Parcels of Land (Wiman), appellant\", \"name_abbreviation\": \"State v. Several Parcels of Land\", \"decision_date\": \"1908-12-17\", \"docket_number\": \"No. 15,243\", \"first_page\": \"13\", \"last_page\": 19, \"citations\": \"83 Neb. 13\", \"volume\": \"83\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T00:26:26.352573+00:00\", \"provenance\": \"CAP\", \"judges\": \"Duffie, Good and Calkins, CC., concur.\", \"parties\": \"State of Nebraska, appellee, v. Several Parcels of Land (Wiman), appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Several Parcels of Land (Wiman), appellant.\\nFiled December 17, 1908.\\nNo. 15,243.\\n1. Statutes: Construction: Taxation: Irregularities. Statutory-provisions with reference to special assessments are strictly enforced, but liberally construed with reference to general taxes, when an irregularity complained of has not been prejudicial.\\n2. Constitutional Law: Taxation. Irregularity in the process of taxation can be said not to amount to due process of law, only when the proceedings are arbitrary, oppressive or unjust.\\n3. -: -: Notice. To constitute due process of law it is not necessary that notice be given of each step in the process of taxation. It is sufficient if the taxpayer has an opportunty to appear, at some time, before a tribunal having jurisdiction, and there procure an adjustment of his liabilities.\\nAppeal from the district court for Douglas county: Abraham L. Sutton, Judge.\\nAffirmed.\\nTV. H. Herdman and TV. A. Saunders, for appellant.\\nHarry E. Burnam, I. J. Dunn and John A. Ri\\u00f1e, contra.\", \"word_count\": \"2112\", \"char_count\": \"12147\", \"text\": \"Epperson, C.\\nThe trial court ordered a sale of appellant's property under the provisions of the scavenger act, finding that the regular taxes for the years 1894, 1895, 1896 and 1897 of the city of Omaha Avere liens upon appellant's property. Before decree appellant ansAvered, alleging that the taxes Avere illegal because of the insufficiency of the notices of the meetings of the board, of equalization. There is no contention that the taxes Avere unjust or inequitable, or levied for an unlaAvful or unauthorized purpose, or exceeded the constitutional and statutory limitations. The question of due process of laAV is involved. The notices of the meetings of the board of equalization for the years 1895, 1896 and 1897 were each published in tAVo papers printed in the English language, and one printed in the German language. This was an irregularity. Each notice should have been published in three English papers. The notice of equalization upon Avliich. the 1894 tax was levied was published six consecutive days, but the last publication was four days prior to the meeting of the board. Section 85, ch. 12a, Comp. St. 1893, which was in force at the times in controversy, provided in part: \\\"The city clerk shall complete the assessment roll for the city on or before the second Monday in October of each year, unless otherAvise ordered by the council, and AAdien such roll is completed, the council shall hold a session of not less than five days, as a board of equalization, giAdng notice of said sitting for at least six days prior thereto in three daily papers of the city. The mayor and council shall make the annual levy at the first regular meeting of the city council in February of each year.\\\" It has been held that the notice must be published six days immediately prior to the convening of the board. Leavitt v. Bell, 55 Neb. 57; Medland v. Connell, 57 Neb. 11; Wakeley v. City of Omaha, 58 Neb. 245. The above construction was placed on the statute in cases where special assessments were involved. It is not our purpose to reaffirm the above rule, but for the purposes of this opinion we assume that the rule was properly applied in the cases cited. There are reasons for holding that a strict adherence to the statutory provisions regarding notice is necessary in irder to make valid a special assessment, equalization and levy, which cannot be said to apply to proceedings for the equalization and levy of regular or general taxes. Statutory provisions with reference to special assessments are usually strictly adhered to, but liberally construed as to regular taxes, unless an actual wrong is done. \\\"Laws for the assessment and collection of general taxes stand upon a somewhat different footing and are construed with the utmost liberality, sometimes even to the extent of holding that no notice whatever is necessary.\\\" Turpin v. Lemon, 187 U. S. 51. In the case of special taxes, the amount thereof is based upon an assessment, not of the actual value, but of benefits to the property involved. The board of equalization assess the benefits upon the consideration of evidence adduced upon a hearing or trial. The value of the property is immaterial. The law imposes regular taxes annually upon all property according to the principles of equality and uniformity, in return for which the.taxpayers all alike receive the' protection of the law and other benefits of our government. In the case of regular or general taxes, the assessment is made by the assessor of the actual value of the property, and without notice to the taxpayer, and before the statutory notice of the meeting of the board of equalization is required. The assessment stands as the basis for the distribution of the burden of taxation, unless changed by the board of equalization, or otherwise, as provided by statute. In such cases the authority of the board of equalization, to act does not necessarily depend upon notice to be given to tlie taxpayer, unless it is sought to raise the assessed valuation of his property over that fixed by the assessor, and even then the general published notice would be insufficient. The valuation of the property had been previously fixed by proceedings which operated alike upon all property. The object of the statutory notice complained of in this case is to give an opportunity to the taxpayer to appear and show that his property was valued too high by the assessor, or that other property in the district has been valued too low. Relief asked of a board of equalization is in the nature of an appeal from the judgment of the assessor; and, unless it is pointed out that the assessor committed some prejudicial error, a denial of an appeal cannot be said to be a denial of due process of law. The case would be different if the appellant herein was contending that his property was assessed too high, or if he was in any way the victim of discrimination or irregularity; but no such complaint is made. He simply alleges that he was denied due process of law because the notice of the meeting, of the board of equalization was not published strictly as required by statute, or, in other words, that he was denied an appeal from an assessment, which we must presume was legal. \\\"It is only where the proceedings are arbitrary, oppressive or unjust that they are declared to be not due process of law.\\\" Glidden v. Harrington, 189 U. S. 255. At most, the defects in the notices, so far as they relate to the equalization of general taxes, must be considered as irregularities only, and insufficient alone to avoid the levy.\\nAgain, it cannot be said that due process of law is lacking, in proceedings for taxation, although the statutory notice is omitted at some particular stage, if the maxims of the law provide an alternative remedy which is sufficient to correct any wrong done. As a safeguard for the protection of a taxpayer, our legislature made provisions, now appearing as section 11061, Ann. St. 1907, which gives to a taxpayer the right to an injunction in the event that the objectionable tax, or some part thereof, be levied or assessed for an illegal or unauthorized purpose. It further provides that, if such.person claims the tax, or some part thereof, to be invalid for the reason that the property upon which it was levied was not liable to taxation \\\"or that such property had been twice assessed during the same year, he may pay the same under protest, and recover the amount from the municipality; or, if for any reason the taxes are invalid, he may obtain judgment in a court having jurisdiction, with interest, from the municipality making the invalid levy. Under these provisions an adequate remedy is awarded to whomsoever may be denied the right of appearing before the board of equalization, if he is injured thereby. It is not necessary to constitute .due process of law that notice of each step of the process of taxation be given. It is sufficient that the taxpayer have an opportunity to appear, at some time, before a tribunal having jurisdiction, and there procure an adjustment of his liabilities.\\nIn Security Trust & Safety Vault Co. v. City of Lexington, 203 U. S. 323, it was held that the failure of the city to require a notice of a special assessment for back taxes to the taxpayer does not deprive him of his property without due process of law, where the state court has afforded him an opportunity to be heard on the question of the validity and the amount of the taxes. In the opinion we find the following: \\\"But in this case the state court has afforded to the taxpayer full opportunity to be heard on the question of the validity and amount of the tax, and after such opportunity has rendered a judgment which provides for the enforcement of the tax as it has been reduced by the court, the reduction amounting to over five thousand dollars. The plaintiff has, therefore, been heard, and on the hearing has succeeded in reducing the assessment. What more ought to be given? The state court in this case has held the taxpayer entitled to a hearing and has granted and enforced such right, and upon the trial has reduced the tax. In so doing the court below has not assumed the legislative function of making an assessment. It has merely reduced, after a full hearing, the amount of an assessment made by the assessor under color at least of legislative authority.\\\" In McMillen v. Anderson, 95 U. S. 37, Mr. Justice Miller said with reference to a license tax levied by the state of Louisiana: \\\"It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. But this is not and never has been, considered necessary to the validity of a tax. Nor is the person charged with such a tax without legal remedy by the laws of Louisiana. It is probable that in that state, as in others, if compelled to pay the tax by a levy upon his property, he can sue the proper party, and recover back the money as paid tinder duress, if the tax was illegal.\\\" The same jurist, in Davidson v. New Orleans, 96 U. S. 97, said: \\\"It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.\\\" In King v. Portland City, 184 U. S. 61, it is said: \\\"The manner of notice and the specific period of time in the proceedings when he may be heard are not very material, so that reasonable opportunity is afforded before he has been deprived of his property or the lien thereon is irrevocably fixed. So it has been held that it is sufficient if the party is accorded the right of appeal or to be heard upon an application for abatement (see Towns v. Klamath County, 33 Or. 225; Weed v. Boston, 172 Mass. 28), or the assessment is to be enforced by a suit to which he is to be made a party (Hagar v. Reclamation District, 111 U. S. 701; Walston v. Nevin, 128 U. S. 578), or the right of injunction against collection is accorded, by which the validity of the assessment may be judicially determined. McMillen v. Ander son, 95 U. S. 37. In such case he cannot be heard to complain that his property is being taken without due process of law.\\\"\\nUnder the doctrine of the United States supreme court, and consonant with sound reasoning, it would appear that a taxpayer, who has the opportunity, before the amount of general taxes was finally fixed and determined, to show to a board of equalization or to a court of competent jurisdiction, empowered to make an adjustment of the amounts equitably and legally due, that the assessment of his property was unjust or excessive or arbitrary, cannot complain that his property is being taken without due process of law.\\nWe recommend that the judgment of the lower court be affirmed.\\nDuffie, Good and Calkins, CC., concur.\\nBy the Court: For the reasons given in the foregoing opinion, the judgment of the district court is\\nAffirmed.\\nFawcett, J., dissents.\"}"
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+"{\"id\": \"2833979\", \"name\": \"Richard L. Chapman, Sr., appellant, v. Union Pacific Railroad, a corporation, appellee\", \"name_abbreviation\": \"Chapman v. Union Pacific Railroad\", \"decision_date\": \"1991-03-22\", \"docket_number\": \"No. 89-1329\", \"first_page\": \"617\", \"last_page\": 629, \"citations\": \"237 Neb. 617\", \"volume\": \"237\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:22:14.041935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"parties\": \"Richard L. Chapman, Sr., appellant, v. Union Pacific Railroad, a corporation, appellee.\", \"head_matter\": \"Richard L. Chapman, Sr., appellant, v. Union Pacific Railroad, a corporation, appellee.\\n467 N.W.2d 388\\nFiled March 22, 1991.\\nNo. 89-1329.\\nLloyd R. Bergantzel for appellant.\\nGayla L. Fletcher and Kathleen J. Ford for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"word_count\": \"3908\", \"char_count\": \"24553\", \"text\": \"Shanahan, J.\\nIn two \\\"divisions\\\" of his amended petition, Richard L. Chapman, Sr., asserted actions against his employer, Union Pacific Railroad, a corporation, for personal injuries which Chapman sustained in an automobile accident that occurred during Chapman's employment on December 6, 1985. The district court for Douglas County struck certain allegations from \\\"DIVISION I\\\" of Chapman's amended petition and, after sustaining a demurrer to \\\"DIVISION II,\\\" dismissed Chapman's action asserted in that division when Chapman declined to replead and stood on the allegations of Division II. At the close of evidence in Chapman's case in chief, the district court, on Union Pacific's motion, directed a verdict for the railroad. We affirm.\\nCHAPMAN'S AMENDED PETITION\\nDivision I: Federal Employers ' Liability A ct.\\nIn Division I of Chapman's amended petition, under the heading \\\"Federal Employer's Liability Act,\\\" Chapman alleged that at the time of the accident, he was a Union Pacific employee in the interstate operation of a motor vehicle supplied by Union Pacific, which was then engaged in the \\\"business of interstate commerce and interstate transportation as a common carrier by railroad.\\\" Chapman drove the railroad's vehicle from Omaha, Nebraska, to Council Bluffs, Iowa. When Chapman stopped Union Pacific's vehicle at a stop sign in Council Bluffs, an automobile, apparently driven by an uninsured motorist, struck the rear end of the Union Pacific vehicle.\\nAccording to Chapman's amended petition, Union Pacific was negligent by:\\n(a) Failing to provide Plaintiff with a vehicle equipped with headrests, (b) Failure to provide Plaintiff with vehicle with both seatbelts and shoulder harness, (c) Failure to comply with Iowa uninsured/underinsured requirements. . (e) Failure to inform Plaintiff that he was not covered by any type of uninsured or underinsured coverage.\\nChapman concluded that Union Pacific's \\\"negligence was a violation of the Federal Employers' Liability Act,\\\" 45 U.S.C. \\u00a751 etseq. (1988).\\nDivision II: Negligence.\\nIn Division II of his amended petition, under the heading \\\"Negligence,\\\" Chapman, by reference, incorporated and reasserted all allegations contained in Division I. Chapman then alleged that Union Pacific failed to notify him that \\\"he was not covered by an automobile insurance policy which contained uninsured or underinsured coverage\\\" and failed to notify Chapman that \\\"he should acquire proper automobile insurance,\\\" since Union Pacific, a self-insurer, see Neb. Rev. Stat. \\u00a7 60-562 (Reissue 1988), did not provide \\\"uninsured/underinsured\\\" motorist protection on its vehicles. Those omissions, Chapman alleged, constituted negligence which resulted in Chapman's damages from the vehicular accident described in Division I of the amended petition.\\nUNION PACIFIC'S PLEADINGS\\nIn a motion under Neb. Rev. Stat. \\u00a7 25-833 (Reissue 1989) (irrelevant matter stricken), Union Pacific requested, among other things, that paragraph 9(c) and (e) of Division I in Chapman's amended petition be stricken as irrelevant to Chapman's action under the Federal Employers' Liability Act. Also, Union Pacific demurred to Division II of Chapman's amended petition and, pursuant to Neb. Rev. Stat. \\u00a7 25-806 (Reissue 1989), claimed that the amended petition failed to state a cause of action, since the Federal Employers' Liability Act was Chapman's \\\"exclusive remedy\\\" under the circumstances.\\nDISTRICT COURT'S JUDGMENTS\\nThe district court sustained Union Pacific's motion and struck paragraph 9(c) and (e) from Division I of Chapman's amended petition. The court also sustained Union Pacific's demurrer to Division II of Chapman's amended petition. When Chapman declined to replead, but stood on the allegations of his amended petition, the court dismissed Division II of Chapman's amended petition. Chapman's case proceeded to trial on Division I with paragraph 9(c) and (e) deleted or stricken by the court. At the conclusion of Chapman's case in chief, the district court directed a verdict for Union Pacific.\\nASSIGNMENTS OF ERROR\\nChapman contends that the district court erred (1) in striking paragraph 9(c) and (e) from Division I of Chapman's amended petition, (2) in sustaining the demurrer to Division II, and (3) in directing a verdict for Union Pacific.\\nFEDERAL EMPLOYERS' LIABILITY ACT\\nThe Federal Employers' Liability Act provides in pertinent part:\\nEvery common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in commerce, [that is, liability] for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.\\nAny employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.\\n45U.S.C. \\u00a7 51.\\nWe assume that a motor vehicle may be characterized as \\\"equipment\\\" for the purpose of the preceding provision in the Federal Employers' Liability Act. See, e.g., Mortensen v. Southern Pacific Co., 245 Cal. App. 2d 241, 53 Cal. Rptr. 851 (1966) (absence of vehicular seatbelts; actionable negligence under the Federal Employers' Liability Act).\\nThe Federal Employers' Liability Act was enacted pursuant to the power granted to Congress for regulation of interstate commerce under the commerce clause of U.S. Const. art. I, \\u00a7 8. Second Employers' Liability Cases, 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327 (1912); Parden v. Terminal R. Co., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964). As a statute of the United States, the Federal Employers' Liability Act, enacted pursuant to the U.S. Constitution, is a part of \\\"the supreme Law of the Land.\\\" U.S. Const, art. VI, cl. 2. See, also, State ex rel. Douglas v. Karnes, 216 Neb. 750, 346 N.W.2d 231 (1984) (the supremacy clause of the U.S. Constitution binds the several states, subordinates state law, including legislation, to a congressional enactment, and supersedes state law which conflicts with federal law). The Federal Employers' Liability Act preempts state law and statutorily supplies uniform law controlling a railroad employee's claim for damages caused by negligence of the employer railroad while the employee is engaged in the railroad's interstate commerce activity. Second Employers' Liability Cases, supra; Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S. Ct. 312, 96 L. Ed. 398 (1952).\\nAmong objectives of the Federal Employers' Liability Act are protection of railroad employees' safety and health and promotion of measures to prevent injury to railroad employees. Parden, supra; Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949); Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082 (1930); Minneapolis &c. R. Co. v. Rock, 279 U.S. 410, 49 S. Ct. 363, 73 L. Ed. 766 (1929).\\nThe U.S. Supreme Court stated in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 329-30, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958):\\n[I]n interpreting the FELA, we need not depend upon common-law principles of liability. This statute, an avowed departure from the rules of the common law [citation omitted], was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. [Citation omitted.] The cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. [Citation omitted.] The Senate Committee which reported the Act stated that it was designed to achieve the broad purpose of promoting \\\"the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden.\\\"\\nThe Federal Employers' Liability Act is a broad remedial statute and should be interpreted liberally to fulfill the intent of Congress. Atchison, T. & S. F. R. Co. v. Buell, 480 U.S. 557, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987).\\nCourts of the United States and courts of the several states have concurrent jurisdiction over claims controlled by the Federal Employers' Liability Act. 45 U.S.C. \\u00a7 56. In disposing of a claim controlled by the Federal Employees' Liability Act, a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 105 S. Ct. 1347, 84 L. Ed. 2d 303 (1985), and Geris v. Burlington Northern, Inc., 277 Or. 381, 561 P.2d 174 (1977), but substantive issues concerning a claim under the Federal Employers' Liability Act are determined by the provisions of the act and interpretative decisions of federal courts construing the Federal Employers' Liability Act, see, Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 108 S. Ct. 1837, 100 L. Ed. 2d 349 (1988); Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 52 S. Ct. 45, 76 L. Ed. 157 (1931); Southern Ry. v. Gray, 241 U.S. 333, 36 S. Ct. 558, 60 L. Ed. 1030 (1916); Seaboard Air Line v. Horton, 233 U.S. 492, 34 S. Ct. 635,58 L. Ed. 1062 (1914). See, also, McDermott v. Chicago & N. W. R. Co., 124 Neb. 727, 730, 248 N.W. 59, 60 (1933): \\\"The state courts are bound by the interpretation of the federal act [Federal Employers' Liability Act] given by the federal courts.\\\" Thus, if the Federal Employers' Liability Act applies to an employee's negligence claim, the act supersedes a state's common and statutory law, even though the employee seeks relief in a state court. Erie R. R. Co. v. Winfield, 244 U.S. 170, 37 S. Ct. 556, 61 L. Ed. 1057 (1917).\\nThus, when the Federal Employers' Liability Act applies to a railroad employee's negligence claim, the cause of action against the railroad employer and recovery for negligent injury to a railroad employee are exclusively controlled by the Federal Employers' Liability Act. See, Second Employers' Liability Cases, 223 U.S. 1, 32 S. Ct. 169, 56 L. Ed. 327 (1912); Janelle v. Seaboard Coast Line R. Co., 524 F.2d 1259 (5th Cir. 1975); Geris v. Burlington Northern, Inc., supra.\\nTHE STRICKEN ALLEGATIONS\\nChapman claims that reversible error occurred as the result of the district court's striking paragraph 9(c) and (e) of the amended petition regarding provision for indemnification against Chapman's bodily injury from a collision between Union Pacific's vehicle and a vehicle driven by an uninsured or underinsured motorist. Chapman does not refer to any federal statute or decision regarding the Federal Employers' Liability Act which supports Chapman's contention that a railroad employer's failure to provide uninsured or underinsured motorist protection for the railroad's vehicle, used in interstate commerce activity, renders the vehicle an \\\"unsafe workplace\\\" or \\\"defective\\\" as a basis for a claim under the act. We are unable to locate any federal statute or decision whereby uninsured or underinsured motorist indemnificatory protection is required for a railroad's vehicle under federal law.\\nThe statutory law of Iowa and Nebraska, the states in which Chapman drove the Union Pacific vehicle, does not require uninsured or underinsured motorist coverage whether the owner is self-insured or not. See, Iowa Code Ann. \\u00a7 516A.1 (West 1988) (uninsured and underinsured motorist coverage optional); Neb. Rev. Stat. \\u00a7 60-509.01 and 60-577 (Reissue 1988) (uninsured and underinsured motorist coverage optional).\\nAs noted, under the statutory law of Iowa and Nebraska, there is no requirement that a vehicle operated within either state must be covered by indemnificatory protection against an uninsured or underinsured motorist. Hence, Union Pacific was under no statutory duty to provide indemnification against an uninsured or underinsured motorist in collision with its vehicles. As Chapman's self-insured employer and owner of the vehicle in question, Union Pacific had the option to provide uninsured and underinsured protection on its vehicles, but made no such provision. Even if some nonstatutory duty were fashioned, to complete the allegation of causation for actionable negligence, namely, the railroad's legal obligation to inform Chapman concerning the absence of uninsured or underinsured motorist protection on its vehicle, Chapman had to plead, under principles for pleading a negligence case in Nebraska, that if the railroad had informed him about the absence of such protection, he would have obtained uninsured or underinsured motorist insurance coverage for the Union Pacific vehicle. See State Auto. & Cas. Underwriters v. Farmers Ins. Exchange, 204 Neb. 414, 282 N.W.2d 601 (1979). Cf. Reynolds v. Atlantic Coast Line, 336 U.S. 207, 69 S. Ct. 507, 93 L. Ed. 618 (1949) (complaint must allege proximate cause). Consequently, by itself, absence of uninsured or underinsured indemnificatory protection on Union Pacific's vehicle has no bearing on Chapman's negligence action against the railroad. On the one hand, if the insurance coverages were unavailable to an employee concerning an employer-owned vehicle in Chapman's case, then the alleged absence of uninsured or underinsured motorist protection is irrelevant to a negligence action under the circumstances. On the other hand, if the insurance coverages were available, Chapman failed to allege that on the railroad's notice that the vehicle in question was not protected by indemnification against damages from an uninsured or underinsured motorist, he could have obtained the insurance coverage, a sequence of events necessary to complete causation for actionable negligence. Without that complete and necessary allegation about Chapman's ability to obtain insurance coverage to protect against an uninsured and underinsured motorist, protection which Union Pacific did not supply, Chapman's allegations about nonexistence of uninsured or underinsured motorist protection for Union Pacific's vehicle was irrelevant to a negligence action. For that reason, any allegation that Union Pacific failed to provide uninsured and underinsured protection or notify Chapman regarding the absence of such protection is irrelevant to the negligence action. Therefore, the district court properly struck paragraph 9(c) and (e).\\nDISMISSAL OF DIVISION II\\nNext, Chapman contends that the district court erred by dismissing the cause of action asserted in Division II of Chapman's amended petition.\\n\\\" 'In reviewing an order sustaining a demurrer, the Supreme Court accepts the truth of facts well pled and the factual and legal inferences which may be reasonably deduced from such facts, but does not accept conclusions of the pleader.' \\\" Security Inv. Co. v. State, 231 Neb. 536, 538, 437 N.W.2d 439, 442 (1989).\\nWhen ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.\\nSchuyler State Bank v. Cech, 228 Neb. 588, 593, 423 N.W.2d 464, 468 (1988). Accord Parrett v. Platte Valley State Bank, 236 Neb. 139, 459 N.W.2d 371 (1990).\\nFrom Chapman's allegations in Division II of his amended petition, we assume that the vehicle which collided with Union Pacific's vehicle was either uninsured for negligently caused personal injury to another person or, if covered by liability insurance concerning personal injury to another, the insurance coverage was insufficient to indemnify Chapman's loss.\\nAs we construe the cause of action asserted in Division II of the amended petition, Chapman sought a recovery for his damages caused by Union Pacific's alleged common-law negligence in failing to inform Chapman that the railroad had not provided any indemnity protection against an uninsured or underinsured motorist who might negligently operate a vehicle in collision with the railroad's vehicle driven by Chapman. However, according to Chapman's allegations for the cause of action asserted in Division II, any of Union Pacific's negligence was occasioned by the railroad's and Chapman's conduct in the course of interstate commerce. Since the Federal Employers' Liability Act preempts state law concerning an employee's negligence claim against the railroad employer, the cause of action asserted in Division II of Chapman's amended petition is exclusively controlled by the Federal Employers' Liability Act and, therefore, is not a cause of action determined or disposed by state law concerning an action based on common-law negligence. See \\u00a7 25-806(1) (lack of subject matter jurisdiction). Thus, Chapman's alleged facts for the cause of action asserted in Division II of his amended petition failed to state a cause of action based on negligence determined by state law because there was no allegation that all alleged negligent conduct occurred in intrastate commerce. See \\u00a7 25-806(6). Consequently, the district court correctly dismissed the common-law cause of action asserted by Chapman in Division II of his amended petition. Chapman's second assignment of error is without merit.\\nDIRECTED VERDICT\\nChapman claims that there was evidence to establish a cause-and-effect relationship between Chapman's injuries and the lack of an appropriate seatbelt with shoulder harness and suitable headrest for the driver of Union Pacific's vehicle, and contends that the district court improperly excluded testimony of Chapman's expert witness, George E Lynch, an accident reconstructionist, who sought to testify about feasibility of proper seatbelt and headrest devices. Therefore, according to Chapman, the district court erred in directing a verdict against Chapman on the issue of causation for Chapman's injury sustained in the motor vehicle accident.\\nAn action brought under the Federal Employers' Liability Act must be submitted to a jury if the jury could reasonably find that \\\"employer negligence played any part, even the slightest, in producing the injury . for which damages are sought.\\\" Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957). Therefore, \\\"the role of the jury is significantly greater in . FELA cases than in common law negligence actions. The right of a jury to pass upon a question of fault and causation must be most liberally viewed.\\\" Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir. 1980).\\nTo recover under the Federal Employers' Liability Act, an employee must prove the employer's negligence and that the alleged negligence is a proximate cause of the employee's injury. In a case under the Federal Employers' Liability Act, a court cannot allow a jury to speculate concerning the cause of an employee's injuries and must withhold or withdraw the employee's case from the jury unless evidence provides a basis for the reasonable inference that the employee's injury was caused by the employer's negligence. A., T. & S. F. Ry. Co. v. Toops, 281 U.S. 351, 50 S. Ct. 281, 74 L. Ed. 896 (1930). Cf. Zeller v. County of Howard, 227 Neb. 667, 671, 419 N.W.2d 654, 657 (1988): \\\"To prevail in an action based on negligence, a plaintiff must prove four essential elements: the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.\\\" See, also, Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N. W.2d 56 (1987). \\\" 'Expert evidence is often required to establish the causal connection between the accident and some item of physical or mental injury unless the connection is a kind that would be obvious to laymen, such as a broken leg from being struck by an automobile.' \\\" Moody v. Maine Cent. R. Co., 823 F.2d 693, 695-96 (1st Cir. 1987) (quoting 4 F. Harper, F. James & O. Gray, The Law of Torts \\u00a7 20.2 (2d ed. 1986)). Cf. Mendoza v. Omaha Meat Processors, 225 Neb. 771, 785, 408 N.W.2d 280, 289 (1987):\\nUnless the character of an injury is objective, that is, an injury's nature and effect are plainly apparent, an injury is a subjective condition, requiring an opinion by an expert to establish the causal relationship between an incident and the injury as well as any claimed disability consequent to such injury.\\nAccord Fees v. Rivett Lumber Co., 228 Neb. 617, 423 N.W.2d 483 (1988).\\nWe bear in mind that Chapman alleged very specific negligence of Union Pacific in reference to its vehicular equipment, namely, lack of a proper seatbelt and headrest. In the histories given by Chapman to his two physicians who testified for him, and in the background for the medical opinions expressed in Chapman's trial, there is no reference to a seatbelt or headrest. Neither physician, testifying for Chapman, causally related Chapman's injury and the seatbelt or headrest questions raised by Chapman.\\nDr. Patrick Bowman testified that \\\"there is a relationship between [Chapman's] symptoms . . . and the accident of 6 December 1985.\\\" Dr. Charles Pigneri testified that \\\"a great portion of [Chapman's] low back pain and his symptoms were as a direct result of the accident occurring on 12-6-85.\\\"\\nChapman's action is not against the driver whose car struck the rear end of the Union Pacific van driven by Chapman. Whether the medical testimony for Chapman would be sufficient to submit the causation issue to a jury in a negligence action against the other driver is immaterial. Rather, while Chapman does not allege that Union Pacific caused the collision, he does allege that Union Pacific negligently failed to equip its vehicle with certain devices which would have prevented or reduced Chapman's injuries.\\nChapman presented no medical testimony which suggests that if Union Pacific's van had had a seatbelt and shoulder-harness arrangement, the belt system would have prevented Chapman's injury or reduced the extent of his injury. Furthermore, there is no medical testimony which indicates that if Union Pacific's vehicle had been equipped with a headrest, that device would have prevented or reduced Chapman's injury. Cf. Hartel v. Long Island Rail Road Company, 476 F.2d 462 (2d Cir. 1973), cert. denied 414 U.S. 980, 94 S. Ct. 273, 38 L. Ed. 2d 224 (a railroad's failure to install certain protective devices did not, as a matter of law, cause an employee's death, when those devices, if installed, would have been ineffective).\\nWe do not address the question concerning exclusion of Lynch's testimony regarding the seatbelt system and headrest for the Union Pacific van. Even if Lynch had testified about those devices as safety features on the van, Chapman's medical proof presented nothing for the jury on the issues of whether the seatbelt system and absent headrest caused Chapman's injury. Thus, Chapman's evidence failed to establish a prima facie negligence case for submission to the jury. See Ches. & Ohio Ry. v. Carnahan, 241 U.S. 241, 36 S. Ct. 594, 60 L. Ed. 979 (1916) (a Federal Employers' Liability Act plaintiff must prove proximate cause). See, also, Dale v. Thomas Funeral Home, ante p. 528, 529, 466 N.W.2d 805, 807 (1991): \\\"A 'prima facie case' means that evidence sufficiently establishes elements of a cause of action and, notwithstanding amotion for a directed verdict in a jury trial or a motion to dismiss in a nonjury trial, allows submission of the case to the fact finder for disposition.\\\"\\nAccordingly, we affirm the district court's judgment in Chapman's case.\\nAffirmed.\"}"
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+"{\"id\": \"2834837\", \"name\": \"State of Nebraska, appellee, v. Columbian M. Rodgers, appellant\", \"name_abbreviation\": \"State v. Rodgers\", \"decision_date\": \"1991-03-08\", \"docket_number\": \"No. 90-072\", \"first_page\": \"506\", \"last_page\": 511, \"citations\": \"237 Neb. 506\", \"volume\": \"237\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:22:14.041935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Columbian M. Rodgers, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Columbian M. Rodgers, appellant.\\n466 N.W.2d 537\\nFiled March 8, 1991.\\nNo. 90-072.\\nThomas M. Kenney, Douglas County Public Defender, and Cheryl M. Kessell for appellant.\\nRobert M. Spire, Attorney General, and Denise E. Frost for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"word_count\": \"1832\", \"char_count\": \"11084\", \"text\": \"Fahrnbruch, J.\\nColumbian M. Rodgers, claiming that the trial court erred in failing to suppress certain evidence and in receiving that evidence at the defendant's trial, appeals his conviction for possession with intent to deliver cocaine.\\nRodgers also complains that his sentence of not less than 2 nor more than 5 years' imprisonment is excessive. Rodgers was given 212 days' credit on the sentence for time served while he was awaiting disposition of his case. We affirm.\\nOn October 31,1989, Rodgers, after waiving a jury trial, was tried before the district court for Douglas County on a charge of possession with intent to deliver a controlled substance (cocaine), a Class II felony, in violation of Neb. Rev. Stat. \\u00a7 28-416(l)(a) (Cum. Supp. 1988), carrying a penalty of not less than 1 nor more than 50 years' imprisonment. Neb. Rev. Stat. \\u00a7 28-105 (Reissue 1985).\\nThe State's evidence at trial consisted of a seven-page exhibit of police and laboratory reports, which was received without a timely objection. That exhibit reflected that on June 12, 1989, Daniel L. Clark, an Omaha Police Division officer, was in the area of the Logan Fontenelle housing project, which was known for a high rate of drug trafficking. The officer had made numerous drug arrests there. While patrolling in his cruiser, Clark observed four people, two of whom were sitting on a porch of a unit at the east end of a complex. A third, the defendant, was leaning over the porch with his hands extended. The two people seated on the porch were looking closely at something in Rodgers' hands. Clark suspected that a narcotics transaction was taking place. A fourth person was located 15 feet to the east of the defendant.\\nWhen Officer Clark drove his cruiser to the south side of the project, the fourth person, appearing startled, turned in the direction of Rodgers and shouted \\\"one time.\\\" According to Clark, shouting \\\"one time\\\" is used to alert drug dealers that a police officer is near. At that alert, Rodgers turned, looked at Clark, quickly straightened his stance, placed whatever he was holding into his right hand, clenched his right hand into a fist, and quickly walked away from Clark. Rodgers walked toward the north and around a corner of the project unit. As Rodgers rounded the corner of the housing unit, Clark observed the defendant reaching both hands toward the zipper in the front of his pants. Clark left his cruiser and began to approach the defendant. Rodgers was then out of the sight of the officer for 5 seconds. When Rodgers reappeared from around the corner of the housing unit, he walked directly toward Clark and said, \\\"There[']s not any work over here Red.\\\" According to Clark, \\\"There[']s not any work\\\" means in street language \\\"There[']s nobody selling crack\\\" cocaine. At that point, Clark observed that the front zipper of Rodgers' pants, where Rodgers had earlier been reaching, was opened wide and that the defendant's pants were spread apart in the zipper area. Clark suspected that Rodgers had hidden contraband in the front of his underwear. Clark patted Rodgers for weapons, but found none. During the pat-down, Clark felt bulges in both front pockets of Rodgers' pants, which bulges Rodgers said were cash. These \\\"wads\\\" of money consisted of several $20, $10, and $5 bills.\\nClark directed Rodgers to walk around the corner of the complex, where no one was present. At a suppression hearing, Clark testified he placed Rodgers under arrest for suspicion of possession of a controlled substance with intent to deliver when he took the defendant around the corner of the housing unit. There Clark instructed Rodgers to pull the front of his pants and underwear away from his body. Rodgers complied with Clark's instruction and the officer observed two plastic bags, one containing marijuana and the other crack cocaine, in Rodgers' underwear. Clark then placed Rodgers in handcuffs. Officer Mike Stewart arrived as backup, and both officers began walking Rodgers toward Clark's cruiser. While walking to the cruiser, Rodgers pulled out the bag of marijuana and discarded it. The marijuana was retrieved by Stewart, who gave it to Clark. Rodgers was then taken to police headquarters, where 35 \\\"rocks\\\" of crack cocaine were confiscated from the underwear Rodgers was wearing.\\nAt police headquarters, Clark informed Rodgers of each of his Miranda rights, which the defendant waived. The defendant agreed to talk to the officer and stated that he had been selling cocaine to pay a debt. Rodgers admitted to selling cocaine three times at a ballfield, selling cocaine after his release from the Youth Development Center-Kearney in the summer of 1988, intending to give marijuana to the two people on the porch, and putting the bag of marijuana in his underwear when he went around the corner of the housing unit. The laboratory report confirmed that the items seized were marijuana and 35 rocks of crack cocaine.\\nAfter Rodgers was charged with possession of cocaine with intent to deliver, the defendant filed a motion to suppress \\\"any and all evidence obtained\\\" from him because it was obtained subsequent to what he alleged was an \\\"unlawful arrest.\\\" After an evidentiary hearing, the trial court overruled Rodgers' motion to suppress. At that hearing, Clark testified that drug dealers in the Logan Fontenelle area hide drugs in their underwear and that he had previously found contraband down the front of dealers' pants on \\\"numerous occasions.\\\"\\nIn his first assignment of error, Rodgers claims that the trial court erred in overruling his motion to suppress evidence and in allowing the evidence to be received at the defendant's bench trial over objection. However, the bill of exceptions reveals that no timely objection was made to the State's offer of the police and laboratory reports before they were received in evidence.\\nIn a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must perform the additional procedural step of objecting at trial to the admission of the evidence which was the subject of the suppression motion in order to preserve the question of admissibility for appeal. State v. Cole, 236 Neb. 269, 460 N.W.2d 665 (1990); State v. DiBaise, 232 Neb. 217, 440 N.W.2d 223 (1989).\\nIn Rodgers' case, the trial consisted of the State's offering into evidence exhibit 1, consisting of seven pages of police and laboratory reports. When the State made its offer, the court asked Rodgers' counsel whether there was any objection to exhibit 1, to which the defense counsel responded, \\\"No, Your Honor.\\\" The exhibit was received in evidence. At that point the State rested. The court then asked, \\\"Does the defendant wish to present evidence?\\\" Defense counsel replied,\\nNo, the defendant does not wish to present evidence, but would object to \\u2014 renew our motion to suppress that was filed and heard by the Court in September of this year, would renew that motion, and object to the Court's consideration of any evidence regarding drugs found on the defendant as being fruits of an illegal search and seizure.\\nThe defendant's renewed motion to suppress and his objection were subsequently overruled, and the court found the defendant guilty as charged.\\nIf a party fails to make a timely objection to evidence, the party waives the right to assert on appeal prejudicial error concerning the evidence received without objection. State v. Cole, supra; State v. Chapman, 234 Neb. 369, 451 N.W.2d 263 (1990); Neb. Rev. Stat. \\u00a7 27-103(1)(a) (Reissue 1989). Objection to the admission of evidence is not timely unless it is made at the earliest opportunity after the ground for the objection becomes apparent. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990). Clearly, the defendant failed to timely object to the State's evidence. The defendant's motion and objection came after the evidence was received by the trial court. Any issue of an improper search and seizure was not preserved for appeal, and therefore Rodgers' first assignment of error has no merit.\\nIn his second assignment of error, Rodgers claims that his sentence is excessive. An order imposing a sentence within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion. State v. Hall, ante p. 169, 465 N.W.2d 150 (1991). Rodgers' sentence was well within the statutory limits and in fact was at the lower end of the prescribed statutory penalty.\\nRodgers claims the court abused its discretion in sentencing him. Specifically, Rodgers argues that the court did not consider in its decision his age, the type of crime, or the crime's lack of violence. See State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990). The record does not support Rodgers' contention that these factors were not considered. There is no question that the sentencing judge considered Rodgers' age when he remarked, \\\"All I can do is take into consideration that he is only 16, is salvageable, has got a long life ahead of him.\\\" At the time of sentence, Rodgers was within 37 days of being 17 years old. The court also considered the type of crime Rodgers committed, when the court referred to community frustration with the drug epidemic. Finally, the court remarked about the violence and theft associated with the drug epidemic. Rodgers claims that the crime he committed was not an act of violence. While ostensibly true, this court has recognized that possession with intent to deliver a controlled substance is not a victimless crime. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990). Additional factors to consider include past criminal conduct. Rodgers' presentence report reflects that the defendant had committed four previous felonies. As a result of his illegal activities, Rodgers had previously been removed from his home on three different occasions.\\nThe factors listed by the defendant are among those to be considered in the imposition of a sentence, see State v. Turner, 221 Neb. 852, 381 N.W.2d 149 (1986), but there is no mandatory list.\\n\\\"[I]n considering a proper sentence, the trial court is not limited in its discretion to any mathematically applied set of factors. It is necessarily a subjective judgment and includes the observations of the sentencing judge as to the demeanor, attitude, and all facts and circumstances surrounding the life of the defendant____\\\"\\nState v. Dean, ante p. 65, 76, 464 N.W.2d 782, 790 (1991), quoting State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981). Based on the foregoing standard, we cannot say that the sentence imposed upon Rodgers was an abuse of discretion. Rodgers' second assignment of error is also without merit. The judgment and sentence of the district court are affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2836535\", \"name\": \"Lester Lantis et al., appellants and cross-appellees, v. City of Omaha, a municipal corporation, appellee and Cross-Appellant\", \"name_abbreviation\": \"Lantis v. City of Omaha\", \"decision_date\": \"1991-03-29\", \"docket_number\": \"No. 87-1090\", \"first_page\": \"670\", \"last_page\": 676, \"citations\": \"237 Neb. 670\", \"volume\": \"237\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:22:14.041935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"parties\": \"Lester Lantis et al., appellants and cross-appellees, v. City of Omaha, a municipal corporation, appellee and Cross-Appellant.\", \"head_matter\": \"Lester Lantis et al., appellants and cross-appellees, v. City of Omaha, a municipal corporation, appellee and Cross-Appellant.\\n467 N.W.2d 649\\nFiled March 29, 1991.\\nNo. 87-1090.\\nEric W. Kruger, of Rickerson, Welch & Kruger, and J. Patrick Green for appellants.\\nHerbert M. Fitle, Omaha City Attorney, and Michael A. Goldberg for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"word_count\": \"1981\", \"char_count\": \"11982\", \"text\": \"Fahrnbruch, J.\\nComplaining that the trial court erred (1) in failing to admit testimony of their expert witness and (2) in failing to properly instruct the jury, Lester and Viola Lantis, husband and wife, and other parties who are mortgagees of the land involved appeal a $48,500 verdict awarded them against the City of Omaha for the partial taking of land upon which a trailer court was located.\\nOn appeal, this eminent domain proceeding initially was heard by the Appellate Division of the District Court. We affirmed the jury verdict of the district court for Douglas County. See Lantis v. City of Omaha, 235 Neb. xvii (case No. 87-1090, May 18, 1990). Subsequently, this court granted a rehearing. Following the rehearing, we again affirm the verdict of the district court.\\nThroughout the appeal to this court, the appellants have specifically assigned as error the trial court's failure to (1) admit the testimony of the landowners' valuation witness, (2) instruct the jury on the \\\"before and after\\\" measure of just compensation in a case of a partial taking, and (3) give the landowners' requested instruction No. 12.\\nThe trailer court involved in this lawsuit, Garden Valley Trailer Court, owned by the Lantises, is located on 7.78 acres of improved real estate located at approximately 16th and Jaynes Streets in Omaha. The mobile home park is bisected into a north and a south parcel by a tract of land owned by a third party. Both parcels of the mobile home park, prior to condemnation, contained improved trailer lots, consisting of concrete pads with utility hookups for gas, water, sewer, electric, and telephone services for each mobile home. Before the eminent domain proceedings, there existed 122 to 129 usable mobile home sites at the park. The City of Omaha condemned approximately 47 feet of the north portion of the trailer court for construction of the Storz Expressway. This partial taking eliminated 15 of the mobile home spaces and rendered 4 other spaces useless because they then were so situated that a mobile home could not be pulled in and out of each of those 4 spaces. The City of Omaha also obtained a 16,878.9-square-foot construction easement for a 1-year period from the trailer court and took 11,700 square feet of concrete and 510 feet of chain link fence.\\nDuring the course of the trial, the appellants offered testimony of George McCabe, Ph.D., a professor of finance at the University of Nebraska-Lincoln, as to the appellants' \\\"just compensation.\\\" Through a motion in limine, the City of Omaha objected to the use of Dr. McCabe's testimony, his report entitled \\\"Value of Garden Valley Trailer Court,\\\" and his estimate of the reduction in value of the trailer court. The City of Omaha claimed that McCabe utilized an inappropriate method in arriving at damages in this eminent domain case.\\nOutside the presence of the jury, the trial court permitted the appellee to conduct a voir dire examination of McCabe. At the conclusion of the examination, McCabe's testimony was the subject of an offer of proof by the appellants, to which testimony the appellee objected. The trial court sustained the City of Omaha's motion in limine and objection. Appellants, in their first assignment of error, claim that the trial court's rejection of McCabe's testimony was erroneous.\\nThe condemnees called only McCabe as an expert witness. McCabe testified that he was not a licensed real estate appraiser in Nebraska, that he did not hold himself out as an expert in the appraisal of real estate, that he had never before appraised a trailer court, and that he made no independent study on his own to verify or study any market sales. At the trial court level, the City of Omaha questioned whether McCabe was qualified to testify as an expert witness in an eminent domain proceeding. The condemner did not preserve that issue for appellate review, and we therefore make no determination in regard to that matter. The record reflects that McCabe valued the Lantis trailer court as an ongoing business both before and after the taking and determined the difference between the two to be the condemnees' just compensation.\\nThere are basically two means by which just compensation in partial takings is determined. 7A Nichols, The Law of Eminent Domain \\u00a7 12.02 (rev. 3d ed. 1990). Under one method the value of the entire tract is found just prior to the taking, the value of the remaining tract is evaluated after the taking, and the difference of these two quantities gives the compensation. Id. The appellants acknowledge that McCabe used this method to determine just compensation and in so doing valued the trailer court as an \\\"ongoing concern.\\\" Using this \\\"before and after\\\" valuation of an ongoing concern, McCabe found the appellants' just compensation to be $121,736.\\nThe second means by which just compensation in partial takings is determined involves determining the market value of the land taken and then measuring the difference in value of the remainder before and after the taking. Id. This is the measure of compensation used for partial takings of land in eminent domain proceedings in this state. \\\"The measure of compensation for land taken for public use is the fair and reasonable market value of the land actually appropriated and the difference in the fair and reasonable market value of the remainder of the land before and after the taking.\\\" (Emphasis supplied.) Harmony Lanes v. State, 193 Neb. 826, 830, 229 N.W.2d 203, 206 (1975). Accord, Verzani v. State, 188 Neb. 162, 195 N.W.2d 762 (1972); Berlowitz v. State, 180 Neb. 164, 141 N.W.2d 764 (1966); Chaloupka v. State, 176 Neb. 746, 127 N.W.2d 291 (1964).\\nMcCabe did not purport to testify as to the value of the real estate actually taken, nor did he purport to testify as to the difference in the fair and reasonable market value of the remainder of the land before and after the taking. This deficiency in and of itself was sufficient reason for the trial court's refusal to permit McCabe to testify as to the compensation to which the appellants were entitled.\\nIn sustaining the condemner's objection to McCabe's testimony, the trial court declared: \\\"There's no question in my mind that the witness, George McCabe, Ph.D., is incorporating into his computations regarding the fair market value of this property future and anticipated profits. In so doing, he's in contravention of Nebraska law as I understand it.\\\" The trial court's perception that McCabe utilized profits in determining appellants' just compensation is conceded in appellants' brief: \\\"To allow capitalization of income, but not capitalization of profits, is to swallow the camel and then strain at the gnat.\\\" Brief for appellants at 28. In Y Motel, Inc. v. State, 193 Neb. 526, 227 N.W.2d 869 (1975), we held that gross rentals may be admissible to allow a jury to gauge comparability of sales relied upon for comparison and, upon proper foundation, that gross rental may be received as an item to which prospective buyers give substantial consideration. We also held in YMotel that in an eminent domain proceeding, anticipated profits from the continued carrying on of a business in an established location cannot be considered in estimating damages due a landowner and that the profits of a business cannot be shown for the purpose of proving the value of the property. Accord Verzani v. State, supra.\\nA trial court's ruling in receiving or excluding an expert's opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Fuglsang v. Blue Cross, 235 Neb. 552, 456 N.W.2d 281 (1990); Aetna Cas. & Surety Co. v. Nielsen, 222 Neb. 92, 382 N.W.2d 328 (1986); Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985). In this case there was no abuse of discretion. To the contrary, it would have been an abuse of discretion to admit in evidence McCabe's testimony, since he used the wrong measure of damages. Because McCabe used the wrong measure of damages in formulating what he determined to be just compensation in this case, his testimony would not assist the jury either in understanding the evidence or in determining a fact in issue and, therefore, was not relevant. See Neb. Rev. Stat. \\u00a7 27-702 (Reissue 1989). Evidence which is not relevant is not admissible. Neb. Rev. Stat. \\u00a7 27-402 (Reissue 1989).\\nAppellants' second and third assignments of error can be considered together. The appellants' assigned errors claim that the trial court failed to give their requested instruction No. 12 and that the instructions given were not proper. After a careful review of the instructions given, we find they are an accurate and proper statement of the law. All the jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal. Denesia v. St. Elizabeth Comm. Health Ctr., 235 Neb. 151, 454 N.W.2d 294 (1990). In this case, the trial court submitted the usual standard eminent domain instructions, which clearly stated the proper measure of damages in a partial taking case such as this. Instruction No. 12 offered by the appellants embraced the same improper measure of damages contained in McCabe's proffered testimony. Therefore, appellants' requested instruction No. 12 was properly refused.\\nIn its brief, the appellee purports to cross-appeal, and in its assignment of error claims the trial court erred \\\"in denying Appellee's motion nunc pro tunc for an order requiring the condemnees to return damages awarded them for the acquisition of Tract No. 46A to the County Court.\\\" Appellee did not argue this assignment of error. Errors assigned but not discussed will not be considered by this court. Horst v. Johnson, antep. 155, 465 N.W.2d 461 (1991).\\nWe dismiss appellee's cross-appeal and affirm the judgment of the district court.\\nAffirmed. Cross-appeal dismissed.\"}"
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+"{\"id\": \"2836949\", \"name\": \"Data Security, Inc., appellee, v. Alan L. Plessman and Paul Plessman, appellants\", \"name_abbreviation\": \"Data Security, Inc. v. Plessman\", \"decision_date\": \"1993-04-06\", \"docket_number\": \"No. A-91-391\", \"first_page\": \"659\", \"last_page\": 669, \"citations\": \"1 Neb. App. 659\", \"volume\": \"1\", \"reporter\": \"Nebraska Court of Appeals Reports\", \"court\": \"Nebraska Court of Appeals\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:47:40.130480+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sievers, Chief Judge, and Hannon and Irwin, Judges.\", \"parties\": \"Data Security, Inc., appellee, v. Alan L. Plessman and Paul Plessman, appellants.\", \"head_matter\": \"Data Security, Inc., appellee, v. Alan L. Plessman and Paul Plessman, appellants.\\n510 N.W.2d 361\\nFiled April 6, 1993.\\nNo. A-91-391.\\nAlan L. Plessman for appellants.\\nRichard P. Garden, Jr., of Cline, Williams, Wright, Johnson & Oldfather, for appellee.\\nSievers, Chief Judge, and Hannon and Irwin, Judges.\", \"word_count\": \"3086\", \"char_count\": \"18363\", \"text\": \"Irwin, Judge.\\nAppellee, Data Security, Inc. (Data), brought a replevin action for the return of a Data stock certificate delivered to appellant Alan L. Plessman as security for a loan from him and appellant Paul Plessman.\\nAlan Plessman and Paul Plessman appeal from the district court's order sustaining Data's motion for summary judgment and overruling appellants' motion for summary judgment. Appellants' assignments of error can be combined to assert that the district court erred in (1) finding that the 4,000 shares of stock were security for payment of a promissory note and that the transaction between the parties was governed by Neb. U.C.C. art. 9, (2) finding that Data had an absolute right to redeem the stock and that the right could not be waived prior to default, (3) finding that the liquidated damage clause in paragraph 3(g) of the supplemental agreement is unconscionable and constitutes a penalty, (4) sustaining Data's motion for summary judgment, (5) overruling appellants' motion for summary judgment, and (6) overruling appellants' motion for new trial.\\nSTANDARD OF REVIEW\\nAn appellate court's review is governed by the rule that summary judgment is proper when there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from any material fact and the movant is, as a matter of law, entitled to judgment. Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991). Moreover, when reviewing a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.\\nAlthough the denial of a motion for summary judgment is not a final order and is not appealable, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, an appellate court obtains jurisdiction over both of the motions and may determine the controversy which is the subject of those motions, making an order specifying the facts which appear without controversy and directing such further proceedings as it deems just. Id. In this case, counsel agreed that there were no issues of material fact.\\nBACKGROUND\\nData is a closely held corporation. Cary Gray, Brian Boles, and Rodney Basler were the original stockholders of Data. They remain the principal stockholders of Data and are officers and directors of the corporation. Appellant Alan Plessman is an attorney who began representing Data in 1985, when he prepared Data's articles of incorporation. On March 14, 1987, appellants loaned $120,000 to Data. Data executed a note which became due in 1 year and an investor agreement which set forth the terms of the loan. The loan documents were prepared by Alan Plessman. Appellants were referred to in the loan documents as investors. Pursuant to the initial loan agreement, Data granted 3 percent of the issued and outstanding shares of Data to Alan Plessman and 3 percent of such shares to Paul Plessman. The right to possession of these shares is not in dispute in this appeal. The terms of the loan included Data's promise to pay to appellants within 6 months from the date of the note, March 14, 1987, the sum of $6,000, which sum represented 6 months' interest on a principal sum of $120,000, and within 12 months from the date of the note, the principal amount of $120,000 together with interest for an additional 6 months equaling $6,000.\\nData timely paid the first 6 months' interest. By January or February 1988, it became evident that Data could not repay the original loan when it became due. On March 14, 1988, Alan Plessman wrote to Basler and Gray, demanding payment of the loan in full. As an alternative, Alan Plessman outlined a proposal for a 2-year extension of the loan, which was to be secured by 4,000 shares of stock in Data. Data executed a promissory note dated March 14 for $108,000 (renewal note) and, on March 28, executed a \\\"Supplemental Investor Agreement for Data Security, Inc.\\\" The renewal note and supplemental agreement were prepared by Alan Plessman, and the supplemental agreement required Data to issue an additional 2 percent of Data's stock to Alan Plessman and an additional 2 percent of such stock to Paul Plessman. The supplemental agreement also required Data to issue a certificate evidencing 4,000 shares of treasury stock, which was to be held by Alan Plessman as security for the renewal note. It is the right to possession of the latter 4,000 shares which is at issue in this case.\\nThe controversy in this case arises from the interpretation of paragraph 3(g) of the supplemental agreement, which provides as follows:\\nSaid Promissory Note shall be secured by 4,000 shares of stock in DATA, free and clear of other lien or encumbrance, presently authorized but not yet issued by DATA. Said shares shall be issued to DATA as Treasury Stock. DATA shall endorse said share certificates in blank and the same shall be held in trust in a safe deposit box by Alan L. Plessman. Failure to have said shares issued, endorsed over, and delivered, within 30 days from and after the date of this agreement, shall cause acceleration of all payments and the entire principal and accrued interest, as reflected by said Promissory Note, shall be immediately due and payable and deemed delinquent. Upon full and timely payment of principal and accrued interest due on the Promissory Note, said stock certificate shall be returned to DATA, at which time, said shares of Treasury Stock shall be and remain unvotable, and owned by DATA free of lien or encumbrance, except as otherwise determined or authorized by a unanimous vote of the Board of Directors of DATA. So long as the terms and provisions of said Promissory Note are being fully and timely performed, said shares of stock shall not be voted or votable by anyone. In the event of failure of DATA to make in full, when due, any of the payments set forth above, said voting restriction shall be immediately lifted and said shares shall be accepted by INVESTORS in partial payment of the principal and interest due on the Promissory Note, using a value of $1.00 for each of said shares; provided that said transfer of shares shall not excuse or relieve DATA from its obligation to pay the principal and accrued interest due on said Promissory Note after credit for said stock value, which shall be applied first to accrued interest and then to principal. This paragraph provides for liquidated damages and is not deemed to be a penalty. DATA may, five (5) years from the date of the conveyance of such additional shares of corporate stock to INVESTORS, buy back said shares.\\nThe renewal note was to be repaid in four installments over 2 years. The first installment, $19,020, was paid by its due date of September 14,1988. The second payment, $18,240, was due on March 14, 1989. On March 14, Gray mailed a check in the amount of $18,240 to Paul Plessman. Paul Plessman deposited the check to his account at Jones National Bank. Although the check was received 1 day late, neither appellant declared a default under the renewal note. The third payment, $17,460, was timely made, and the fourth and final installment, $76,680, was due on March 14, 1990. There is no dispute that the final check was mailed 1 day late. On March 17, Paul Plessman deposited the check to his account at Jones National Bank.\\nIt is the contention of appellants that Data forfeited what amounts to 40 percent of its stock because the check representing the final payment was 2 days late. In a letter dated March 27, Alan Plessman acknowledged that Data had \\\"paid off its promissory note of March 14, 1988,\\\" the renewal note, and returned the original promissory notes. He also stated that as the last payment had not been made when due as required by paragraph 3(g) of the supplemental agreement, he was sending a check in the amount of $4,000 \\\"as the price for purchase of the 4,000 shares.\\\"\\nOn April 3, Gray wrote a letter to appellants and returned the $4,000 check to them. Gray also sent two checks to appellants, one in the amount of $97.65, which represented 2 days' interest on the renewal note, and the other in the amount of $250 for, as explained in the letter, \\\"any expense reasonably incurred by [appellants] in retaking, holding and preparing the collateral for distribution, in arranging for the sale and to the extent provided by the Agreement and not prohibited by law, attorney's fees and legal expenses associated with this matter to date\\\" by reason of Data's default under the renewal note. See Neb. U.C.C. \\u00a7 9-506 (Reissue 1992). Appellants do not claim that this amount was insufficient.\\nDISCUSSION\\nIn Arcadia State Bank v. Nelson, 222 Neb. 704, 386 N.W.2d 451 (1986), this court reiterated that the subject matter of a replevin action is very narrow. \\\" '[SJince the main issue in a replevin action is one of title and right to possession, all matters foreign thereto must be excluded from consideration and are not available as defenses.' \\\" Id. at 711, 386 N.W.2d at 457. \\\"[T]he issue in replevin is not ownership of the property . . . but the right to immediate possession at the time of the commencement of the action.\\\" (Emphasis in original.) Id. at 712, 386 N.W.2d at 457-58.\\nBarelmann v. Fox, 239 Neb. 771, 778, 478 N.W.2d 548, 554 (1992).\\nApplicability of Neb. U.C.C. Art. 9.\\nThe contract in this case clearly demonstrates that Data's debt to appellants was secured by the stock. The supplemental agreement, in paragraph 3(g), provided that \\\"[s]aid Promissory Note shall be secured by 4,000 shares of stock in DATA.\\\" Thus, the evidence demonstrates that the loan transaction was mutually intended to be a secured transaction.\\nNeb. U.C.C. \\u00a7 9-102(1) (Reissue 1992) provides: \\\"Except as otherwise provided in section 9-104 on excluded transactions, this article [article 9] applies (a) to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, or accounts.\\\"\\nComment 1 to \\u00a7 9-102 states:\\nExcept for sales of accounts and chattel paper, the principal test whether a transaction comes under this article is: is the transaction intended to have effect as security? . . . When it is found that a security interest as defined in section 1-201(37) was intended, this article applies regardless of the form of the transaction or the name by which the parties may have christened it.\\nNeb. U.C.C. \\u00a7 1-201(37) (Reissue 1992) defines a security interest as an interest in personal property or fixtures which secures payment or performance of an obligation. Appellants had a security interest in the 4,000 shares of Data stock to secure payment of the loan to Data. The supplemental agreement, signed on March 28, 1988, stated in paragraph 3(g) that the accompanying promissory note for $108,000 \\\"shall be secured by 4,000 shares of stock in DATA.\\\" Therefore, Neb. U.C.C. art. 9 is applicable to this transaction.\\nRight to Redeem.\\nUnder \\u00a7 9-506, even after default, at any time before the secured party has disposed of the collateral or entered into a contract for its disposition, the debtor has a right to \\\"redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition____\\\"\\nThe record shows that Data did everything necessary to redeem the collateral because it made all required payments of principal and interest and, in addition, tendered to Alan Plessman and Paul Plessman the sum of $250 in payment of any expenses reasonably incurred by appellants in retaking, holding, and preparing the collateral for distribution or sale. Data also tendered to appellants the sum of $97.65, which represented interest at the stated rate of 16.5 percent per annum on that portion of the indebtedness which remained unpaid between March 15 and March 17,1990.\\nAppellants maintain that Data waived its right to redeem the stock, and they rely on paragraph 3(g) of the supplemental agreement in support of this claim. Appellants' argument that under Neb. U.C.C. \\u00a7 1-102 (Reissue 1992), the provisions of the code may be, and were, varied by agreement is not completely accurate. Section 1-102 states that the code's provisions may be varied by agreement except as otherwise provided in the code.\\nNeb. U.C.C. \\u00a7 9-501(3) (Reissue 1992) provides:\\nTo the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied except as provided . . . but the parties may by agreement determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable;\\n(d) section 9-506 which deals with redemption of collateral.\\nComment 4 to \\u00a7 9-501 makes it clear that a debtor may not waive the right to redeem in a predefault agreement:\\nSection 1-102(3) states rules to determine which provisions of the code are mandatory and which may be varied by agreement. In general, provisions which relate to matters which come up between immediate parties may be varied by agreement. In the area of rights after default our legal system has traditionally looked with suspicion on agreements designed to cut down the debtor's rights and free the secured party of his or her duties: no mortgage clause has ever been allowed to clog the equity of redemption. The default situation offers great scope for overreaching; the suspicious attitude of the courts has been grounded in common sense.\\nSubsection (3) of this section contains a codification of this long-standing and deeply rooted attitude: the specified rights of the debtor and duties of the secured party may not be waived or varied except as stated.\\nUnder \\u00a7 9-506, the debtor has a right to redeem collateral at any time before the secured party has disposed of collateral or entered into a contract for its disposition unless otherwise agreed in writing after default. Under \\u00a7 9-501(3)(d), a debtor's right of redemption may not be waived or varied except as provided in \\u00a7 9-506, which means only in writing and after default. Thus, any agreement to a waiver of a right of redemption prior to default was invalid. There is no assertion that Data waived its right of redemption after default.\\nOther courts have held that a predefault waiver of a right of redemption is ineffective as a matter of law. In Trimble v. Sonitrol of Memphis, Inc., 723 S.W.2d 633 (Tenn. App. 1986), a creditor sold its business and took back notes for the purchase price. The purchaser, in turn, executed a stock pledge agreement which provided:\\n\\\"Upon the occurrence of any default under any of the Notes or the Stock Purchase Agreement, all rights of Buyer to exercise voting and other shareholder rights and to receive dividends shall cease irmediately [sic], and all such rights shall become vested in Seller, who shall have the sole and exclusive authority to exercise such voting and other shareholder rights and to receive such dividends.\\\"\\nId. at 637.\\nThe purchaser defaulted, and the seller argued that the stock vested in the seller without any regard to the purchaser's right to redeem. The court held that the stock pledge agreement which purported to vest the stock in the seller upon the purchaser's default was prohibited under both common law and Tenn. Code Ann. \\u00a7 47-9-501(3) (1979).\\nIn another case, Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980), the defendants executed promissory notes secured by stock. The notes provided that the defendants could either pay the notes in cash or surrender the stock. Shortly after executing the notes, the defendants gave notice that they were electing to pay the notes by surrendering the stock. The defendants subsequently tendered to the plaintiff a cashier's check to pay the notes, together with a letter revoking their prior tender of the stock. The plaintiff refused the tendered payment and claimed ownership of the stock. The court stated:\\nThe UCC provides that a debtor generally has a right to redeem the collateral \\\"unless otherwise agreed in writing after default.\\\" . . . The UCC also provides that the right secured by \\u00a7 109A-9 \\u2014 506 (the right to redeem collateral) cannot be waived or varied except as provided in that section. . . . Thus, the right to redeem collateral may be waived by an agreement in writing, after default, but cannot be waived by an agreement in writing before default. There being no default at the time of the purported waiver or election on November 10,1976, those elections are not binding upon the debtors.\\n(Citations omitted.) Kellos, 245 Ga. at 133, 263 S.E.2d at 140.\\nParagraph 3(g).\\nData also argues that paragraph 3(g) of the supplemental agreement is unconscionable and constitutes a penalty. Because we dispose of this case based upon provisions of the Nebraska Uniform Commercial Code, as stated above, it is not necessary to discuss this assignment of error.\\nMotion for New Trial.\\nThe standard of review of an order denying a motion for new trial is whether the trial court abused its discretion. A motion for new trial should be granted only where there is error prejudicial to the rights of the unsuccessful party. Kumar v. Douglas County, 234 Neb. 511, 452 N.W.2d 21 (1990). We find no abuse of discretion in the trial court's denial of the motion for new trial.\\nCONCLUSION\\nBecause (1) the transaction was one governed by Neb. U.C.C. art. 9 and (2) Data had a right of redemption under \\u00a7 9-506, the provisions of which Data fulfilled, Data was entitled to possession of the stock certificate evidencing 4,000 shares of Data stock as a matter of law at the time of the commencement of the replevin action. Thus, the granting of Data's motion for summary judgment in this replevin action was proper and is, therefore, affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2851086\", \"name\": \"Gas 'N Shop, Inc., petitioner, v. State of Nebraska and Nebraska Liquor Control Commission, respondents\", \"name_abbreviation\": \"Gas 'N Shop, Inc. v. State\", \"decision_date\": \"1990-01-26\", \"docket_number\": \"No. 89-807\", \"first_page\": \"309\", \"last_page\": 310, \"citations\": \"234 Neb. 309\", \"volume\": \"234\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:34:56.705814+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"parties\": \"Gas \\u2019N Shop, Inc., petitioner, v. State of Nebraska and Nebraska Liquor Control Commission, respondents.\", \"head_matter\": \"Gas \\u2019N Shop, Inc., petitioner, v. State of Nebraska and Nebraska Liquor Control Commission, respondents.\\n451 N.W.2d 81\\nFiled January 26, 1990.\\nNo. 89-807.\\nDonald L. Dunn and Kim M. Robak, of Rembolt Ludtke Parker & Berger, for petitioner.\\nEdwin C. Perry and Maureen A. Lauren, of Perry, Guthery, Haase & Gessford, P.C., for respondents.\\nWilliam E Austin, Lincoln City Attorney, and Joel D. Pedersen for amicus curiae City of Lincoln.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.\", \"word_count\": \"362\", \"char_count\": \"2232\", \"text\": \"White, J.\\nPetitioner, Gas 'N Shop, Inc., a Nebraska corporation, made application to this court for leave to commence an original action pursuant to Neb. Const, art. V, \\u00a7 2. The application recited that the action was one for declaratory judgment, contending that 1989 Neb. Laws, L.B. 781 is unconstitutional.\\nThis court informed the petitioner that the application for leave to commence an original action would be considered when a stipulation by the Attorney General and the petitioner was received. The court further required that an agreed statement of facts accompany the petition. The stipulations were filed, and the court granted leave to commence the original action.\\nIn its petition, Gas 'N Shop alleged that it was the holder of 24 liquor licenses for use in its convenience stores and was, at the time of its filing, an applicant for a 25th license. The petition alleged that L.B. 781 was unconstitutional for various reasons, all relating to the conditions of obtaining a license and the substantive and procedural rules for the revocation of a license.\\nThere are no allegations of threatened or pending revocation of any liquor licenses in the application to commence an original action, the petition, or the stipulation of facts. As previously stated, the petition does recite a pending license application. However, at the time of the filing of the factual statement, the license had been granted and there was no pending action on the license.\\nIt is now apparent that the case is moot. This court does not render advisory opinions, but simply decides cases and controversies. See Vrana Paving Co. v. City of Omaha, 220 Neb. 269, 369 N.W.2d 613 (1985).\\nThe petition is dismissed.\\nPetition dismissed.\"}"
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+"{\"id\": \"2862938\", \"name\": \"American Community Stores Corporation, a Texas corporation, et al., appellees, v. M.J. Newman, Trustee, et al., appellants\", \"name_abbreviation\": \"American Community Stores Corp. v. Newman\", \"decision_date\": \"1989-06-09\", \"docket_number\": \"No. 87-540\", \"first_page\": \"434\", \"last_page\": 445, \"citations\": \"232 Neb. 434\", \"volume\": \"232\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:33:49.671789+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., White, Shanahan, and Fahrnbruch, JJ., and McGinn, D.J.\", \"parties\": \"American Community Stores Corporation, a Texas corporation, et al., appellees, v. M.J. Newman, Trustee, et al., appellants.\", \"head_matter\": \"American Community Stores Corporation, a Texas corporation, et al., appellees, v. M.J. Newman, Trustee, et al., appellants.\\n441 N.W.2d 154\\nFiled June 9, 1989.\\nNo. 87-540.\\nRichard S. McMillin, of Marks & Clare, for appellants.\\nTheodore J. Stouffer and Kurt F. Tjaden, of Cassem, Tierney, Adams, Gotch& Douglas, for appellees.\\nHastings, C.J., White, Shanahan, and Fahrnbruch, JJ., and McGinn, D.J.\", \"word_count\": \"3716\", \"char_count\": \"22396\", \"text\": \"Hastings, C.J.\\nThis appeal involves three cases consolidated for trial, briefing, and argument. Plaintiffs, tenants under three separate leases for buildings housing grocery stores, filed petitions for declaratory judgments against the defendants, trustees for the landlords of those various premises. Plaintiffs sought a determination as to whether they violated the terms of the individual store leases which prohibit assignment of the leases without the prior written consent of the landlord, but permit subletting without permission.\\nDefendants counterclaimed for possession based on alleged assignments of the leases without prior written consent. Both parties filed cross motions for summary judgment. Defendants now appeal from the order of the trial court ruling that the leases had not been violated because no prohibited assignments had been entered into which remained in effect beyond the period which existed for the curing of defaults as provided for in the leases. Summary judgments were granted in favor of the plaintiffs, and defendants' counterclaims were dismissed.\\nDefendants assign three errors, which, simply stated, allege that the leases had been assigned without permission, which constituted defaults in the terms of the leases. We affirm.\\nThe requirements to sustain a motion for summary judgment are the same whether one party or both parties have moved for summary judgment. Bohannon v. Guardsman Life Ins. Co., 224 Neb. 701, 400 N.W.2d 856 (1987).\\nSummary judgment is an extreme remedy that should be awarded only when an issue is clear beyond all doubt. It is proper when pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from the material facts, and when the moving party is entitled to judgment as a matter of law. Five Points Bank v. White, 231 Neb. 568, 437 N.W.2d 460 (1989); Schroer v. Synowiecki, 231 Neb. 168, 435 N.W.2d 875 (1989). In reviewing a summary judgment, this court views the evidence in a light most favorable to the party against whom judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Five Points Bank v. White, supra; Pioneer Animal Clinic v. Garry, 231 Neb. 349, 436 N.W.2d 184 (1989).\\nThe facts are not particularly complicated, but are somewhat voluminous. However, for our purposes it will suffice to shorten them considerably.\\nAmerican Community Stores Corporation (ACS), which operated Hinky Dinky stores in Nebraska, held leases with the various landlords on grocery store buildings in Columbus, Auburn, and Omaha. The leases generally were for 20-year terms with options to renew or extend for multiple 5-year leasing periods. Due to labor difficulties, ACS announced sometime in January of 1985 that it was closing its stores in Nebraska. The Columbus store was closed at the beginning of December 1984, and the Auburn and Omaha stores in mid-February of 1985. Each store was reopened under different management the day after it closed. The Auburn store was reopened and operated by Hinky Dinky Auburn, Inc., the Columbus store was reopened and operated by Russ' Super Foods, Inc., and the Omaha store was reopened and operated by Gro-Mor, Inc.\\nThe agreements between ACS and the various parties were originally structured such that ACS would assign the leases to Nash-Finch Company, a grocery wholesaler, and Nash-Finch would in turn sublease the stores to the operators. Assignment agreements were signed and placed in the files of the companies.\\nShortly after the public announcement of the closings, ACS, through its owner, Cullum Companies, Inc., contacted the trustees for the landlords, requesting permission to assign leases to Nash-Finch. In the case of the Columbus store, a representative of Nash-Finch wrote the trustee a letter dated December 31, 1984, giving notice of the assignment between ACS and Nash-Finch effective December 1, 1984, and of the fact that Nash-Finch was subletting the store to Russ' Super Foods.\\nBy separate letter for each store, each letter dated February 8,1985, one of the trustees for the landlords notified ACS that the landlord did not consent to assignment of the leases for the Auburn and Omaha stores. Furthermore, if ACS proceeded to assign the lease without written consent, the letter was to constitute the notice of default required in article X of each lease. By separate letter also dated February 8, the trustee notified ACS that unless he heard otherwise from ACS within 2 weeks, he would assume that the transfer of the Columbus store to Nash-Finch was by assignment without consent. In the event Nash-Finch's possession was by assignment, the letter was notice of default. Houston E. Holmes, Jr., vice president and general counsel of Cullum Companies, Inc., notified the trustee for the landlords by letter dated February 14, 1985, that the stores would be sublet.\\nArticle IX of each of the leases provided in part:\\nSECTION 1. Tenant may not assign or transfer this lease without the written consent of Landlord first had and obtained; however, without obtaining such consent, Tenant may sublet the leased premises or portions thereof for purposes and upon provisions not inconsistent with the terms and provisions of this lease.\\nArticle X of the same leases provides:\\nSECTION 1. If, at any time during the term of this lease . (a) Tenant shall default. . (ii) In the observance or performance of any of Tenant's other covenants, agreements or obligations hereunder for a period of twenty (20) days after Landlord shall have given Tenant written notice specifying such default or defaults . . . Landlord shall have the right, at its election, at any time thereafter while such default or defaults continue, to re-enter and take complete and peaceable possession of the leased premises... and to declare said term ended----\\nIn an apparent effort to cure these claimed defaults, Jon Solberg, in-house counsel for Nash-Finch, and Holmes, on behalf of ACS, agreed during a telephone conversation in mid-February that the assignment agreements would be removed from the various files and replaced with subleases.\\nThe term of each sublease ends 2 days prior to the end of ACS's term under the prime lease with the defendants. In addition, Nash-Finch, as sublessee, was granted the right to \\\"exercise the remaining option periods granted by the Prime Lease.\\\"\\nIn granting plaintiffs' motion for summary judgment, the trial court made the following findings of fact:\\n1. That although there may be a question of fact as to whether an assignment was executed and then destroyed prior to closing of the sale, a sublease was executed thereafter and within 20 days of notice of default given by defendant.\\n2. That the sublease agreement executed is in fact and law a sublease and not an assignment and therefore does not require the consent of the defendant and is not in violation of any provisions of the original lease. This conclusion is based upon the following:\\na) The original lease permitted a sublease for all as well as a portion of the leased premises.\\nb) The sublease expired prior to the term of the original lease thus retaining in the lessee a right of reversion.\\nc) The lessee retained a right of reentry for a condition broken which is also aright of reversion.\\nd) The fact that options given to the sublessee would purport to run as long if not longer than the expiration of the original lease is not, as a matter of law, valid so as to make the sublease for the same term as the original lease. The option can only begin to run from the expiration of the basic term of the sublease, not the original lease. Further, the sublessee cannot be granted more than the prime lessee has to offer under the original lease.\\nAppellants argue that the original assignments are still in effect because there is nothing in the record that the agreements were canceled or altered. They further argue that even though the assignment documents were destroyed, which fact is not disputed, they still bind ACS and Nash-Finch because they were never formally rescinded or the subject of reassignment from Nash-Finch to ACS.\\nThat reasoning is erroneous. In Nebraska, an assignment by a lessee of an interest in a lease which prohibits such assignment without the lessor's consent is ineffective without such consent. Moritz v. S & H Shopping Centers, Inc., 197 Neb. 206, 247 N.W.2d 454 (1976). See, also, K. & J. Markets, Inc. v. Martin Packing Corp., 20 N. J. Super. 515, 90 A.2d 507 (1952); Karidis et al. v. Trampas, 207 Ill. App. 302 (1917); Austin v. Harris & another, 76 Mass. (10 Gray) 296 (1858). In Moritz v. S & H Shopping Centers, Inc., supra, this court stated:\\nDefendant had no authority to assign the lease without the consent of plaintiff. Such consent was never given or received and defendant's contention that it transferred certain interests in the lease is necessarily immaterial as no valid rights could have been transferred or acquired in the absence of plaintiff's consent.\\n197 Neb. at 209, 247 N.W.2d at 456.\\nThe assignments between ACS and Nash-Finch were not valid because the landlords refused to consent to them, and therefore they are not still in effect in continuing violation of the leases. It was not necessary for the parties to formally rescind the assignments or for Nash-Finch to reassign the leases to ACS before the parties could attempt to enter into valid subleases.\\nNevertheless, the assignments without consent, even though invalid, were still violations of the covenants in the leases. However, appellants overlook the fact that the leases provided ACS with 20 days to cure a default after being notified of the default by the landlord. This was done if, in fact, the documents later executed were subleases.\\nIn Nebraska, covenants in a lease against assignment or subletting are not favorably regarded by the courts and are liberally construed in favor of the lessee. Jamson v. Poulos, 184 Neb. 480, 168 N.W.2d 526 (1969); Chesnut v. Master Laboratories, 148 Neb. 378, 27 N.W.2d 541 (1947). This means that the scope of a covenant against assignment will not be enlarged by the courts, and the covenant will not be considered violated by any technical transfer that is not fairly and substantially an assignment. Chesnut v. Master Laboratories, supra.\\nThe generally accepted test for determining whether a transfer is an assignment or a sublease is set out in 2 R. Powell, The Law of Real Property, \\u00b6 246[1] at 372.92-.93 (1986), as follows:\\nWhen the transfer is for the whole balance of the unexpired term, with respect to all of the originally leased premises and on exactly the same terms as those under which the main lessee held the transaction is inescapably an \\\"assignment.\\\" When the transfer is for a period shorter than the unexpired balance of the term, and relates to a physical part only of the originally leased premises and is on terms materially different from those stipulated in the main lease, the transaction is inescapably a \\\"sublease.\\\" To state the test in a slightly different manner, the question is whether if by the transaction the lessee conveys his entire term, or whether he retains a reversionary interest. If by the transaction the tenant conveys the entire terms and thereby parts with all reversionary interest in the property, the transaction is construed to be an assignment, whereas if there remains a reversionary interest in the estate, it is a sublease.\\nAppellants contend that the subleases are really assignments because ACS did not reserve a reversionary interest at the end of the option terms. According to appellants, contrary to the trial court's ruling, the right of reentry for condition broken is not a reversionary interest. See, Rocklen, Inc. v. Radulesco, 10 Conn. App. 271, 522 A.2d 846 (1987); Shadeland Development Corp. v. Meek, 489 N.E.2d 1192 (Ind. App. 1986); State v. Meador, 60 Wash. 2d 543, 374 P.2d 546 (1962); C. N. H. F., Inc. v. Eagle Crest Dev. Co., 99 Fla. 1238, 128 So. 844 (1930); Davidson v. Minnesota Loan & Trust Co., 158 Minn. 411, 197 N.W. 833 (1924); Sexton v. Chicago Storage Co. et al., 129 Ill. 318, 21 N.E. 920 (1889); Stewart v. Long Island R. R. Co., 102 N.Y. 601, 8 N.E. 200 (1886). However, there is authority for the position that the right of reentry is a reversionary interest sufficient to qualify a transfer as a sublease rather than an assignment. See, Restatement (Second) of Property \\u00a7 15.1, comment i. (1977); Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969); Novosad v. Clary, 431 S.W.2d 422 (Tex. Civ. App. 1968); Venters v. Reynolds, 354 S.W.2d 521 (Ky. 1962); Lebel v. Backman, 342 Mass. 759, 175 N.E.2d 362 (1961); Coles Trading Co. v. Spiegel, Inc., 187 F.2d 984 (9th Cir. 1951); Hartman Ranch Co. v. Associated Oil Co., 10 Cal. 2d 232, 73 P.2d 1163 (1937); Saling v. Flesch et al., 85 Mont. 106, 277 P.612 (1929).\\nWe adopt the reasoning of the latter authorities and declare that a right of reentry is a reversionary interest sufficient to qualify a transfer of rights under a lease agreement as a sublease rather than an assignment.\\nQuite apart from the question of the right of reentry, ACS did retain a reversionary interest by reason of the expiration of the term of the sublease prior to that of the basic lease. It is generally accepted that the retained reversionary interest need not be for a substantial period of time in order for an agreement to be considered a sublease. Agreements calling for the surrender of possession only 1 day prior to the expiration of the term of the main lease have been held to be subleases rather than assignments. See, Bostonian Shoe Co. of New York v. Wulwick Associates, 119 A.D.2d 717, 501 N.Y.S.2d 393 (1986); F.W. Woolworth Co. v. Plaza North, Inc., 493 N.E.2d 1304 (Ind. App. 1986); Warnert v. MGM Properties, 362 N.W.2d 364 (Minn. App. 1985).\\nIn each agreement at issue in this appeal, Nash-Finch's tenancy ends 2 days prior to the end of ACS's tenancy under the prime lease. Under the common-law distinction between assignments and subleases, this is a sufficient reversionary interest to constitute the transfer a sublease.\\nAppellants argue that even though the agreements between ACS and Nash-Finch reserve a portion of the initial term to ACS, the so-called subleases between Nash-Finch and its operators are contractually inconsistent; i.e., the Auburn and Omaha subleases between Nash-Finch and the operators provide for termination of the operator's lease on the same day that ACS's term expires under the prime lease. Appellants insist that this is evidence that the real intent of ACS and Nash-Finch was to assign the leases. Contrary to this contention, it seems only to indicate that the subleases between Nash-Finch and the operators were not changed to reflect the change from assignments to subleases between ACS and Nash-Finch.\\nIn Nebraska, a sublessee has no greater rights against the original lessor than were given by the original sublessor to the original sublessee. Thus, despite the provisions in the subleases between Nash-Finch and the operators of the Omaha and Auburn stores, the tenancy of the operators will end when the term of Nash-Finch ends, 2 days prior to the expiration of ACS's term under the prime lease.\\nAppellants also contend that ACS transferred the premises for the entire remainder of its term because it granted Nash-Finch the right to exercise the remaining renewal options in the prime lease. It is reasonable to conclude that ACS was granting Nash-Finch options to renew the subleases in order to extend their terms by 5 years each for the number of times ACS could extend the prime lease, rather than granting Nash-Finch the right to actually extend the prime lease pursuant to ACS's option to renew. Since under a sublease there is no privity of contract between the original lessor and the sublessee, Nash-Finch as sublessee could not exercise ACS's option to renew. See, generally, Neal v. Craig Brown, Inc., 86 N.C. App. 157, 356 S.E.2d 912 (1987); Ducote v. Callico, 307 So. 2d 644 (La. App. 1974); 50 Am. Jur. 2d Landlord and Tenant \\u00a7 1195 (1970); Annot., 39 A.L.R.4th 824 (1985).\\nIn F.W. Woolworth Co. v. Plaza North, Inc., supra, the court found that an agreement which allowed the transferee to occupy the premises during the extended period of a renewable prime lease permitting the original lessee to extend the lease for five successive terms of 5 years, which gave the transferee options to extend, and which expired 1 day before the expiration of the second and third extended periods of the prime lease, was a permitted sublease and not a prohibited assignment. The facts in that case as to the extension options are strikingly similar to the instant case.\\nTo the same effect is Joseph Bros. Co. v. F.W. Woolworth Co., 641 F. Supp. 822 (N.D. Ohio 1985), aff'd 844 F.2d 369 (6th Cir. 1988). The issue also facing that court was whether the agreement constituted an assignment or a sublease. According to the court,\\n[t]he effect of the agreement was that each term of the Woolco-Hills agreement expired one day before the expiration of the corresponding term of the Joseph Brothers-Woolco agreement. If each party extended its lease to the limits, the Joseph Brothers-Woolco lease would expire one day after the Woolco-Hills lease.\\nId. at 824.\\nThe court noted that once a lease renewal option has been exercised, the term of the original lease is deemed to be enlarged to encompass the option period. Therefore, the issue was whether the same was true if a sublease is entered into before the renewal option is exercised. The court found that Woolco clearly acted with the intention in good faith of exercising its option to extend the lease, evidenced by the fact that Woolco did so 1 month after the agreement with Hills and 5V2 years before it was necessary. Accordingly, the court found that \\\"reasonable minds could only conclude that it was the intention of Woolco to sublease the premises to Hills, that Woolco made a good faith attempt to enter into a sublease, and that the agreement meets the legal requirements to constitute it as a sublease rather than an assignment.\\\" Id. at 825.\\nRecently, this court in International Harvester Credit Corp. v. Lech, 231 Neb. 798, 438 N.W.2d 474 (1989), reiterated the well-established law in this state that \\\"the interpretation given to a contract by the parties themselves while engaged in the performance of it is one of the best indications of true intent and should be given great, if not controlling, influence.\\\" Id. at 803, 438 N.W.2d at 478, quoting Nowak v. Burke Energy Corp., 227 Neb. 463, 418 N.W.2d 236 (1988). ACS and Nash-Finch, while engaged in the performance of the agreements, appear to have interpreted the renewal option to mean Nash-Finch will inform ACS if it wishes to extend the term and ACS in turn will then exercise its option under the prime lease by notifying the landlord. Nash-Finch's right to extend the subleases is dependent upon ACS's exercise of its options to renew the prime leases. The effect is that each term of the subleases expires 2 days before the expiration of the corresponding term of the prime lease. If ACS and Nash-Finch each extend their leases to the limits, the prime leases will expire 2 days after the subleases.\\nAppellants cite to this court the rule of Jaber v. Miller, 219 Ark. 59, 239 S.W.2d 760 (1951), that the intention of the parties is to govern in determining whether an instrument is an assignment or a sublease. According to appellants, if this court follows the Jaber rule, the intention of the parties is a question of fact, and therefore summary judgment was inappropriate.\\nTennessee also follows the intention rule. The court in Ernst v. Conditt, 54 Tenn. App. 328, 390 S.W.2d 703 (1964), quoting Williams v. Williams, 84 Tenn. 164 (1885), stated, \\\" 'We have most wisely abandoned technical rules in the construction of conveyances in this State, and look to the intention of the instrument alone for our guide, that intention is to be arrived at from the language of the instrument read in the light of the surrounding circumstances.' \\\" 54 Tenn. App. at 337, 390 S.W.2d at 707. Furthermore,\\n\\\"It is the duty of the court in the construction of contracts to ascertain the intention of the contracting parties, understand what they meant by the contract, and give effect to such understanding and meaning. All other rules of construction are only aids or helps in establishing the intention of the parties and their mutual understanding of the meaning of their contract.\\n\\\"The motives which induced the contract have a definite bearing upon the intention of the parties. The object and purpose to be effected furnish valuable aids in ascertaining such intention.\\\"\\nErnst, 54 Tenn. App. at 337-38, 390 S.W.2d at 707, quoting Commerce Street Company v. Goodyear Tire & Rubber Company, 31 Tenn. App. 314, 215 S.W.2d 4 (1948).\\nReading the language of the agreements between ACS and Nash-Finch in the light of the surrounding circumstances and taking into consideration the motives which induced the agreement, the only reasonable interpretation of the agreements is that they are and were intended to be subleases. ACS was informed that the landlord would not consent to assignments and considered ACS to be in default. ACS, having the object and purpose of transferring its interest in the premises while not violating the leases and forfeiting its interest in the premises, clearly intended to enter into subleases, which it could do without permission. To this end, ACS entered into agreements that satisfy the common-law requirements of a sublease.\\nThere is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn therefrom, and the appellees are entitled to judgment in their favor as a matter of law. The judgments of the district court are affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2960197\", \"name\": \"State of Nebraska, appellee, v. Richard Robinson, appellant\", \"name_abbreviation\": \"State v. Robinson\", \"decision_date\": \"1981-10-09\", \"docket_number\": \"No. 44064\", \"first_page\": \"726\", \"last_page\": 728, \"citations\": \"209 Neb. 726\", \"volume\": \"209\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:18:18.817847+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Krivosha, C.J., Boslaugh, McCown, Clinton, White, and Hastings, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Richard Robinson, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Richard Robinson, appellant.\\n311 N.W.2d 7\\nFiled October 9, 1981.\\nNo. 44064.\\nJames T. Hansen and Jonathan Pratter for appellant.\\nPaul L. Douglas, Attorney General, and Dale D. Brodkey for appellee.\\nHeard before Krivosha, C.J., Boslaugh, McCown, Clinton, White, and Hastings, JJ.\", \"word_count\": \"471\", \"char_count\": \"2856\", \"text\": \"Hastings, J.\\nDefendant was prosecuted and convicted of a violation of Neb. Rev. Stat. \\u00a7 29-908 (Reissue 1979), failing to appear before the court after having been \\\"released from custody under bail, recognizance, or a conditioned release.\\\" He was sentenced to a term of imprisonment of 18 months to 2 years. Defendant has appealed, contending in substance that the State failed to establish an essential element of the crime, viz, that there was a valid recognizance in effect at the time of his failure to appear. We determine that defendant's appeal is wholly without merit.\\nThe defendant was charged with unlawfully disposing of a dead body and, on July 20, 1977, was released under a properly executed $5,000 recognizance. Following his conviction and sentence for a term of 18 months to 2 years, a 30-day stay of execution was granted to permit the defendant to perfect his appeal to the Supreme Court. In addition, the trial court continued the original $5,000 recognizance. On October 15,1979, a mandate from this court affirmed the judgment and sentence, and the defendant was ordered to surrender himself on November 2, 1979, which he failed to do. His bond was ordered forfeited and he was finally arrested and returned to the Scotts Bluff District Court on September 2, 1980.\\nBy some sort of convoluted reasoning, the defendant claims that the 30-day stay of execution of the sentence had expired long before his ordered appearance date and the $5,000 recognizance executed before trial was no longer in effect; therefore, there was no binding bail agreement in force which he violated.\\nThe recognizance executed by the defendant before trial was not limited to appearing for trial. It required the defendant to appear on August 12, 1977, and from time to time thereafter as ordered by the court. The district judge, following sentencing on the original felony, not only suspended execution of the sentence for 30 days as requested by the defendant but also released the defendant on the \\\"present filed bond.\\\" At the time of his release, the defendant was also told by the court that \\\"if this matter were to be affirmed by the Nebraska Supreme Court on appeal and you did fail to appear for execution of this sentence, it would create a separate crime . . .\\nNo question remains but that the defendant was \\\"released from custody under bail, recognizance, or a conditioned release\\\" and failed to appear and surrender himself as required by \\u00a7 29-908.\\nThe judgment and sentence of the District Court was correct and is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"2977780\", \"name\": \"The Omaha Fish and Wildlife Club, Incorporated, appellee, v. Community Refuse Disposal, Inc., and Ronald B. Roots, appellants\", \"name_abbreviation\": \"Omaha Fish & Wildlife Club, Inc. v. Community Refuse Disposal, Inc.\", \"decision_date\": \"1983-01-07\", \"docket_number\": \"No. 44485\", \"first_page\": \"234\", \"last_page\": 242, \"citations\": \"213 Neb. 234\", \"volume\": \"213\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:49:47.673687+00:00\", \"provenance\": \"CAP\", \"judges\": \"Krivosha, C.J., Boslaugh, McCown, Clinton, White, Hastings, and Caporale, JJ.\", \"parties\": \"The Omaha Fish and Wildlife Club, Incorporated, appellee, v. Community Refuse Disposal, Inc., and Ronald B. Roots, appellants.\", \"head_matter\": \"The Omaha Fish and Wildlife Club, Incorporated, appellee, v. Community Refuse Disposal, Inc., and Ronald B. Roots, appellants.\\n329 N.W.2d 335\\nFiled January 7, 1983.\\nNo. 44485.\\nHerbert J. Elworth of Casey & Elworth, and Croker, Huck & McReynolds, for appellants.\\nMichael J. Mooney of McCormack, Cooney, Mooney & Hillman, P.C., for appellee.\\nKrivosha, C.J., Boslaugh, McCown, Clinton, White, Hastings, and Caporale, JJ.\", \"word_count\": \"2663\", \"char_count\": \"16318\", \"text\": \"Hastings, J.\\nThe defendants have appealed from an order of the District Court permanently enjoining them from operating a solid waste disposal area on certain real property located in Cass County. On appeal to this court, the defendants assign as error that the court (1) incorrectly found that the Cass County zoning ordinance prohibited operation of a licensed solid waste disposal landfill in an area zoned \\\"A\\\" Rural and Public Use District; (2) failed to find that the particular site was immune from zoning control because the use as a landfill operation was in the performance of a governmental function not subject to zoning control; and (3) wrongfully revoked the approval granted by the Cass County officials under circumstances where the defendants had incurred substantial expense in good faith reliance upon such approval. We affirm.\\nThe waste disposal area is located on farmland within Section 33, Township 13 North, Range 12 East of the 6th P.M. in Cass County, Nebraska, leased by defendants from the owner. It contains a large ravine which the defendants propose to fill with solid, baled waste material hauled under contract from the city of Omaha. Once filled, it is the intent of the owner of the property to reconvert this land to agricultural use.\\nThe plaintiff is a nonprofit club owning recreational land 1 mile northeast of the landfill site. This land is located just south of the Platte River and consists of several small recreational lakes and various campgrounds. The plaintiff contests the defendants' use of the land in question as a violation of the Cass County zoning ordinance.\\nOn October 4, 1978, the defendants made application to the Nebraska Department of Environmental Control for a license to operate a solid waste disposal area. As required by Neb. Rev. Stat. \\u00a7 81-1518 (Reissue 1981), a hearing was had before the board of commissioners of Cass County on November 6, 1978. Notice of such hearing was published once in The Plattsmouth Journal on October 26, 1978. The result of that hearing was that a motion was passed that the \\\"board approve the site as presented.\\\" It was not until June of 1979 that the plaintiff learned of the proposed use to be made of the property by the defendants. The plaintiff protested this use to the Cass County board by letters dated July 20, 1979, and November 6, 1979, and in person at a meeting of the board held on July 3, 1979. It was the plaintiff's po sition that in order to operate a landfill on the premises a change of zoning was required, which necessitates a more elaborate and extensive notice procedure. However, these protests were to no avail and this action was filed on December 6, 1979. Following the sustaining of a demurrer and dismissal of the petition, that action of the trial court was appealed to this court. We reversed and remanded for further proceedings. Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981). The present proceeding followed.\\nThe Cass County zoning ordinance is set up on a permissive basis, i.e., each district is outlined to allow only certain uses. The land in question is zoned \\\"A\\\" Rural and Public Use District. Article IV of the ordinance discusses what is a permissive use in an \\\"A\\\" Rural and Public Use District. Section 402 of that article states in part: \\\"A building or premises shall be used only for the following purposes: 1. Single family dwellings . 2. Farming . . . 3. Lumbering . [4. does not appear.] 5. Publicly owned or operated properties . 6. Public parks . 7. Railroad tracks . . .' 8. Single-family dwellings. 9. Churches . 10. Public elementary and high schools . 11. Cemeteries . 12. Hospitals . 13. Accessory building and uses customarily incident to any of the above uses . . . .\\\" Nowhere is it stated that landfills are permitted uses in an \\\"A\\\" Rural and Public Use District. Article VIII of the zoning ordinance describes \\\"I\\\" Industrial District regulations, which permit a use \\\"for any purpose not in conflict with any resolution of Cass County regulating nuisances or laws of the State of Nebraska; provided . . . that no . . . occupancy permit shall be issued for any of the following uses . . . until and unless the location . . . shall have been approved by the Board of Commissioners, after report by the Cass County Planning Commission. . . . Rendering and storage of dead animals, offal, garbage, or waste products.\\\" In addition, article XI pro vides Additional Use regulations, which provide that \\\"The Board of Commissioners may, by special permit after public hearing, authorize the location of any of the following . . . uses in any district from which they are prohibited . 17. Industrial uses upon which the Board is required to pass under Article VIII.\\\"\\nThe defendants advance three reasons why the maintenance of a solid waste disposal landfill is not prohibited in an area zoned \\\"A\\\" Rural and Public Use District. In the first place, they argue, nowhere in the six districts originally contained in the zoning ordinance is there any provision for the allowance of utilities and services. However, they say these uses consistently are allowed in all districts throughout the county, e.g., water, gas, and sewer lines, and telephone and electric power lines. The Cass County comprehensive plan states that \\\"Utilities and services, as defined in this report, include water, sanitary and storm sewers, solid waste disposal, electric power, natural gas, and telephone service.\\\" Therefore, they conclude, having allowed the enumerated utility services, the county must permit the operation of a solid waste disposal service in all districts. Of course, it cannot seriously be contended that the providing of electricity, gas, water, sewers, and like utilities is not \\\"accessory . . . uses customarily incident to any of the . . . uses\\\" permitted by \\\"A\\\" Rural and Public Use District regulations. However, generating electricity, manufacturing gas, treating water, or processing sewage is quite another matter. As stated in Stones v. Plattsmouth Airport Authority, 193 Neb. 552, 554-55, 228 N.W.2d 129, 131 (1975): \\\"A comprehensive development plan is merely a policy statement that may be implemented by a zoning resolution. . It is the zoning resolution which has the force of law. . If there is a conflict between a comprehensive plan and a zoning ordinance, the zoning ordinance contains the controlling provisions when questions of a citizen's property rights are at issue.\\\" The zoning ordinance plainly does not authorize the operation of a solid waste disposal area in an \\\"A\\\" Rural and Public Use District, anything in the comprehensive development plan to the contrary notwithstanding.\\nNext, it is contended that a landfill is an accessory use as a reclamation project on agricultural land. The defendants cite the case of Schlueter v. County of St. Clair, 19 Ill. App. 3d 470, 311 N.E.2d 735 (1974), which involved an attempt to utilize a landfill operation to fill an open strip mine area. In allowing such an operation contrary to the plain language of the zoning ordinance, the court stated 'that the land in question could not at present be used productively for agricultural purposes but could be reclaimed for productive agricultural use by the operation of a sanitary landfill; that expert scientific evidence established that ground waters and neighboring water wells would not be contaminated or affected by the operation of the landfill; that no appreciable increase in traffic would result; that surrounding property values would not be diminished; that the operation of a landfill could result in the reclamation of the strip-mine property and should appreciate the surrounding property.\\\" Id. at 473, 311 N.E.2d at 737. We would only point out that the evidence relied upon by the Illinois court is not present in this record. Additionally, the operation of a commercial sanitary landfill as a part of a farming operation would hardly be considered an 'accessory use\\\" which is 'a recognized incidental use\\\" within the meaning of Kitrell v. Board of Adjustment, 201 Neb. 130, 266 N.W.2d 724 (1978).\\nFinally, the defendants claim that the operation of a landfill under a license from the Department of Environmental Control is a 'public operation\\\" within the meaning of subsection 5 of article IV of the zoning ordinance. We should add parenthetically that the record does not disclose that the department has actually issued the permit. The exact language of the ordinance permits \\\"Publicly owned or operated properties.\\\" (Emphasis supplied.) The landfill operation with which we are here concerned is neither publicly owned nor operated. We believe that the plain language of the zoning ordinance does not permit the operation of a commercial solid waste landfill operation, and as a result thereof it is prohibited.\\nThe second assignment of error suggests that because the defendants have contracted to perform certain services for the city of Omaha in the disposal of baled refuse, somehow it is performing a governmental function not subject to zoning control. We do not find it necessary to examine the various authorities, such as Witzel v. Village of Brainard, 208 Neb. 231, 302 N.W.2d 723 (1981), in support of such a contention. This was not an issue raised by the pleadings, nor does the record disclose that the case was tried on that theory. The pleadings frame the issues between the parties, and the evidence must be confined to those issues. Era v. Sapp Bros. GMC, Inc., 189 Neb. 366, 202 N.W.2d 750 (1972). We would observe that Neb. Rev. Stat. \\u00a7 14-102(28) (Reissue 1977) does provide that metropolitan cities \\\"shall have power by ordinance . to make contracts for the removal or disposal of garbage . . . .\\\" (Emphasis supplied.) However, no such ordinance appears in the record. Other than a passing reference to a contract with the city of Omaha to haul garbage, neither is a written contract to that effect contained within the evidence adduced. The second assignment of error is without merit.\\nThe defendants' final argument concerns itself with the matter of detrimental reliance. That is, they claim that the grant of permission to an occupier of land for a particular use, coupled with the incurrence of substantial expense and obligation in good faith reliance thereon, gives rise to a vested right in such occupier for such use of the land, even though it may be in violation of the zoning ordi nances. In support of their argument the defendants cite us to the case of A. C. Nelsen Enterprises, Inc. v. Cook, 188 Neb. 184, 195 N.W.2d 759 (1972).\\nIn Nelsen the city of Omaha had revoked a certificate of occupancy issued to the plaintiff authorizing it to use certain premises for the retail sale of mobile homes. The property was zoned C-l, which permitted the use of the premises for auto sales, auto laundries, department stores, filling stations, etc., but not for the display and sale of mobile homes. This use was restricted to a C-6 zoning district, which allowed 18 specified uses, all but two of which were also allowed in C-l districts. The certificate as originally issued recited that the property had been inspected and was suitable for the proposed use, was properly zoned, and complied with all regulations and ordinances. Some 3 months later, Nelsen was advised that the certificate had been issued in error and was void, and that it would have to discontinue that business activity.\\nThe record in Nelsen disclosed that before revocation of its permit, the plaintiff had leased the premises for a 3-year term at a total rental of $18,000 and, in addition, had expended approximately $12,000 in preparing the premises for its intended use. In setting aside the revocation of the permit, we said: \\\"In this case, there was no mistake of fact. It is seriously questionable that there was even a mistake of law. The certificate of occupancy was lawfully issued by the municipal officer having authority to issue it and in accordance with the departmental interpretation of the zoning laws which had been in effect for some years. . . . [T]here was substantial good faith expenditure of funds and change of position in reliance upon the certificate issued.\\n\\\"Where a certificate of occupancy or building permit has been issued lawfully, even though in accordance with a questionable interpretation of the zoning ordinances or regulations, courts have generally held that it may not arbitrarily be revoked, par ticularly where the permittee has incurred substantial expenses and liabilities in reliance upon it. . . .\\n\\\"We therefore hold that where a certificate of occupancy has been properly obtained in accordance with zoning statutes and ordinances, it may not be arbitrarily revoked where the certificate holder has incurred substantial expenses, commitments, and obligations in good faith reliance upon the certificate.\\\" Id. at 186-88, 195 N.W.2d at 761-62.\\nThere are a number of factors which distinguish the present case from Nelsen. Here, no permit was ever issued, although it is clear that the Cass County commissioners approved the proposed site for the requested use. However, nothing was granted \\\"in accordance with the . . . interpretation of the zoning laws which had been in effect for some years.\\\" As a matter of fact, it was the testimony of the Cass County zoning administrator that the county had no jurisdiction as far as zoning of landfills was concerned and that he had never expressed an opinion to anyone else as to that fact. It was the October 15, 1979, written opinion of the Attorney General in response to a request from the Department of Environmental Control which first notified the county officials that it was the county governing body, not the state department, which was to determine the adequacy of or compliance with local zoning ordinances.\\nThere is evidence in the record that the defendants spent somewhere between $25,000 and $60,000 in engineering and legal fees for the development of this project sometime after approval of the site by the county and prior to the filing of this lawsuit in December of 1979. More importantly, however, is the exact time frame within which the expenditures were made. At one point in the record, when asked if he was saying that $60,428.74 in expenses was incurred subsequent to the board approval and prior to the filing of the lawsuit, Ronald B. Roots answered: \\\"I'd say it in my way is prior to the lawsuit based on all the approvals I had.\\\" At another point in his testimony, Mr. Roots said that he had incurred legal expense of $5,261.20 in legal fees \\\"through these hearings and up to September [sic] 10th when this suit was brought.\\\" He also mentioned a commitment on the lease of approximately $6,500 on October 1, 1979, and engineering and soil sampling totaling $25,929.63 as of December 10th, 4 days after this action was filed. Any contract obligation to the city of Omaha was incurred sometime after December of 1980.\\nIn short, the defendants have failed to establish that their expenditure of funds was in good faith, i.e., that it was made before the question of improper zoning was raised. According to a copy of the July 3, 1979, proceedings of the Cass County commissioners, they were, at that time at least, aware that a substantial question existed. In a somewhat similar case we said that \\\"the appellant had not established any vested right to use these premises for the purpose here contended when the change was made. Consequently, we find that the ordinance passed on December 30, 1948, which eliminated the use of the premises for that purpose, lawfully extinguished his permit and any rights he may have had thereunder.\\\" City of Omaha v. Glissmann, 151 Neb. 895, 904, 39 N.W.2d 828, 834 (1949).\\nFor the foregoing reasons, we find that the judgment of the District Court was correct and is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"3006095\", \"name\": \"State of Nebraska, appellee, v. Terry L. Christianson, appellant\", \"name_abbreviation\": \"State v. Christianson\", \"decision_date\": \"1984-05-25\", \"docket_number\": \"Nos. 83-509, 83-510\", \"first_page\": \"445\", \"last_page\": 450, \"citations\": \"217 Neb. 445\", \"volume\": \"217\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:33:15.132332+00:00\", \"provenance\": \"CAP\", \"judges\": \"Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Terry L. Christianson, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Terry L. Christianson, appellant.\\n348 N.W.2d 895\\nFiled May 25, 1984.\\nNos. 83-509, 83-510.\\nThomas M. Kenney, Douglas County Public Defender, and Victor Gutman, for appellant.\\nPaul L. Douglas, Attorney General, and Terry R. Schaaf, for appellee.\\nKrivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.\", \"word_count\": \"1381\", \"char_count\": \"8374\", \"text\": \"Krivosha, C.J.\\nThis appeal consists of two separate cases which have been consolidated for purposes of appeal. In case No. 83-509 the appellant, Terry L. Christianson, was convicted of robbery, in violation of Neb. Rev. Stat. \\u00a728-324 (Reissue 1979), and the use of a firearm to commit a felony, in violation of Neb. Rev. Stat. \\u00a7 28-1205 (Reissue 1979). Robbery is a Class II felony and the use of a firearm is a Class III felony. This conviction grew out of a robbery committed on October 11, 1982, of the Payless shoestore in Omaha, Nebraska.\\nIn case No. 83-510 Christianson was also convicted of robbery and the use of a firearm to commit a felony in connection with the robbery of the Radio Shack on September 29, 1982. In addition to robbing the Radio Shack, Christianson was also charged and convicted in No. 83-510 with robbing Robert H. Roose, Sister Timothy Marie O'Roark, and Georgianna Brown on September 29, 1982, while they were customers in the Radio Shack. Following a jury trial, which resulted in Christianson being convicted of all the charges in both cases, he was sentenced in case No. 83-509 to consecutive terms in the Nebraska Penal and Correctional Complex of 3 to 10 years for robbery and 2 to 3 years for the use of a firearm to commit a felony. In case No. 83-510 he was sentenced to consecutive terms in the Nebraska Penal and Correctional Complex of 3 to 10 years for the first count of robbery and 2 to 10 years for each of the remaining counts of robbery, and 2 to 3 years for each of the counts of use of a firearm to commit a felony. He now appeals to this court, raising but two errors. One is that the trial court committed reversible error by overruling his motion to suppress his identification by Cheryl Milroy in No. 83-509 and by Paul Rezich, Robert Roose, and Georgianna Brown in No. 83-510. The other alleged error is that the trial court committed reversible error by overruling his motion to suppress physical evidence obtained when the police searched his automobile. We have reviewed both of these alleged errors and find neither of them to have merit. For this reason the judgments and sentences of the trial court are affirmed in both cases.\\nWith regard to the first assignment of error, Christianson maintains that the trial court should have disallowed the in-court identification because the witnesses were permitted to congregate together following their identifying him in a police lineup. The evidence discloses that, with regard to each of the robberies, four witnesses at various times were brought to a properly conducted lineup and asked to identify the man who robbed them. In each instance, without hesitation, the witnesses identified Christianson as the man who committed the robbery. Following the identification, each witness was placed in a room with the other witnesses who had identified Christianson as being involved in the various robberies. While the witnesses were in the room, they discussed the identification they had already made at the lineup. Except for Christianson's claim that the witnesses were permitted to meet together after each of them had individually identified Christianson, no other claim of impropriety is made. Christianson does not maintain that the lineup itself was in any manner improper, nor that the in-court identification conducted at the trial was improper. Christianson's argument is simply that because the parties were able to meet together after they had initially identified Christianson in the lineup, both the lineup identification and the in-court identification were tainted and should have been disallowed. In support of this position, however, Christianson is unable to cite to us any authority, nor are we able on our own to find any such authority. We have frequently declared that whether an identification procedure is violative of due process will be determined upon a consideration of the totality of the circumstances surrounding it. See, State v. Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982); State v. Banks, 195 Neb. 340, 237 N.W.2d 875 (1976); State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974). It is our conclusion that, when reviewing the totality of the circumstances surrounding the identifications in this case, we are unable to conclude that Christianson's due process rights were in any manner violated. Each of the witnesses had ample time to see Christianson during the course of the robbery, and to identify him both during the police lineup and in court. There is no evidence that their having been together affected the independence of their identifications. The first assignment is without merit.\\nTurning, then, to Christianson's second error, that the court should have suppressed physical evidence obtained when the police searched Christianson's automobile, we likewise conclude that it is without merit. The record discloses that Christianson was arrested during the early morning hours of October 13, 1982, for a matter unrelated to the facts of either case involved in this appeal. After he was arrested he was asked by a Sergeant Gutchewsky of the Omaha Police Department if he would consent to have his car searched. According to the police sergeant, Christianson said that he would give his consent if his car would not be towed. Later that morning, Officer Frank O'Connor was ordered to ask Christianson to sign a written release giving the police permission to search his car. There is a conflict in the evidence as to what transpired during the discussion between Officer O'Connor and Christian-son. Officer O'Connor testified that Christianson signed the consent form without protest. O'Connor admitted that 1 to 2 hours after the consent form had been signed he had a confrontation with Christianson concerning two of Christianson's friends who were suspects in the Payless shoestore robbery. Christianson protested their innocence, and O'Connor threatened to get a \\\"no-knock\\\" search warrant for their home. Christianson now maintains that the threat of the \\\"no-knock\\\" search warrant was made at the same time that he was asked to give his con sent to search his automobile and that but for the threat of obtaining a \\\"no-knock\\\" search warrant he would not have signed the consent. The car was ultimately towed into the police station and searched. Payless-brand boots and an empty Payless shoebox were found in the car. The trial court concluded from all the evidence that the consent given by Christianson for the search of his automobile was voluntary and not a part of any threat made by the police department. Recently, in State v. Garcia, 216 Neb. 769, 773, 345 N.W.2d 826, 829 (1984), we said:\\nThe determination of whether a consent to search is voluntarily given is a question of fact. State v. Skonberg, 194 Neb. 550, 233 N.W.2d 919 (1975). The voluntariness of the consent to search should be determined from the totality of the circumstances surrounding it. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975). The findings of fact in this respect will not be set aside on appeal unless they are clearly erroneous. In making that determination this court will take into consideration the advantage of the district court in having heard the oral testimony. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).\\nThe mere fact that the individual is in police custody, standing alone, does not invalidate the consent if, in fact, it was voluntarily given. See United States v. Green, 525 F.2d 386 (8th Cir. 1975). Our review of the record discloses that there is simply a conflict in the evidence, which the trial court resolved against Christianson. We cannot say from the record that this was erroneous, and, therefore, the determination by the trial court as to the voluntariness of the consent must be upheld.\\nFor these reasons, therefore, the assignments of error proposed by Christianson are found to be without merit and are overruled. The judgments and sentences of the trial court in each of the cases involved herein are affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"4033568\", \"name\": \"Georgett Tadros, appellant and cross-appellee, v. City of Omaha, a municipal corporation, appellee and cross-appellant\", \"name_abbreviation\": \"Tadros v. City of Omaha\", \"decision_date\": \"2005-03-25\", \"docket_number\": \"No. S-03-1336\", \"first_page\": \"528\", \"last_page\": 541, \"citations\": \"269 Neb. 528\", \"volume\": \"269\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:44:33.101704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hendry, C.J., Wright, Connolly, Gerrard, McCormack, and Miller-Lerman, JJ.\", \"parties\": \"Georgett Tadros, appellant and cross-appellee, v. City of Omaha, a municipal corporation, appellee and cross-appellant.\", \"head_matter\": \"Georgett Tadros, appellant and cross-appellee, v. City of Omaha, a municipal corporation, appellee and cross-appellant.\\n694 N.W.2d 180\\nFiled March 25, 2005.\\nNo. S-03-1336.\\nDavid M. Woodke and Aimee C. Bataillon, of Woodke & Gibbons, P.C., L.L.O., and Matthew G. Miller for appellant.\\nRobert J. Hamer, Deputy Omaha City Attorney, for appellee.\\nHendry, C.J., Wright, Connolly, Gerrard, McCormack, and Miller-Lerman, JJ.\", \"word_count\": \"4147\", \"char_count\": \"25401\", \"text\": \"Wright, J.\\nNATURE OF CASE\\nGeorgett Tadros was seriously injured when she was struck by a vehicle as she walked across West Center Road in Omaha, Nebraska. Tadros alleged that the City of Omaha (City) was negligent in programming the crosswalk signal at the intersection and that the driver who struck her was negligent in failing to yield the right-of-way to a pedestrian. The district court found that Tadros' contributory negligence precluded her from recovery, and it dismissed her petition. Tadros appealed, and the City has filed a cross-appeal.\\nSCOPE OF REVIEW\\nIn actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of a trial court will riot be disturbed on appeal unless they are clearly wrong. Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 267 Neb. 958, 679 N.W.2d 198 (2004).\\nFACTS\\nOn December 16,1999, Tadros was crossing West Center Road at the intersection of 133d Street and was struck by a pickup truck driven by James Bowley, Jr. When Tadros started to cross the street, the white \\\"walk\\\" light on the crosswalk signal was illuminated. According to Tadros' petition, the signal changed to red as she stepped from the median in the middle of West Center Road. As she crossed the northernmost eastbound lane, an eastbound white car that had entered the intersection came to a sudden stop and allowed Tadros to pass. She proceeded across the northernmost eastbound lane of traffic, but when she reached the southernmost eastbound lane, she was struck by Bowley's pickup.\\nWest Center Road runs east and west. At the intersection in question, for westbound traffic, there is a right-turn lane, two through-traffic lanes, \\u00e1nd a left-turn lane. A 7-foot-9-inch~wide median separates the westbound left-turn lane from the two eastbound lanes. The total crossing distance across West Center Road from the north curb to the south curb is 81 feet 10 inches. The distance from the north curb to the middle of the southernmost eastbound lane of West Center Road, where Tadros was struck, measures 78 feet.\\nAt the intersection of 133d Street and West Center Road, there is an unmarked crosswalk with a signal that may be activated only by a pedestrian manually pressing the crosswalk button. At the time of this accident, the crosswalk signal was set as follows: 7 seconds for the white \\\"walk\\\" light, 11 seconds for the flashing \\\"don't walk\\\" light, and 4 seconds for the solid \\\"don't walk\\\" light. There was also a 1-second period when the traffic lights were red in all directions. The total allotted time for the crosswalk signal was 23 seconds.\\nTadros filed a petition in Douglas County District Court alleging that Bowley and the City were negligent and seeking to recover damages for injuries she sustained. She alleged that the City had failed to program the crosswalk signal to provide a sufficient amount of time for a pedestrian to cross all lanes of West Center Road, failed to provide a pedestrian-activated crosswalk signal or detector on the median, and failed to program the signal in accordance with the appropriate design standards in the industry. She alleged that Bowley was negligent in failing to keep a reasonable and proper lookout, failing to keep his vehicle under reasonable and proper control, failing to yield the right-of-way to a pedestrian in a crosswalk, and operating his vehicle at a speed unreasonable under the circumstances then and there existing:\\nThe City answered, claiming that it had discretionary function immunity pursuant to Neb. Rev. Stat. \\u00a7 13-910(2) (Cum. Supp. 2002). It also claimed that Tadros was contributorily negligent in failing to keep an adequate lookout for oncoming traffic and in leaving the median, a place of safety, and walking into the path of oncoming traffic without looking.\\nTadros' last memory before the incident was leaving a bank near the northeast corner of 133d Street and West Center Road, where she had transacted business. She testified that she had crossed West Center Road using the pedestrian crosswalk many times, that she knew the pedestrian signal was \\\"very short,\\\" that she had previously experienced trouble crossing in the time allotted, and that \\\"everybody tried to speed up at this intersection.\\\"\\nThe district court found that Tadros was walking in a slight southeasterly direction from the north curb to the south curb and was within the general area where crosswalk markings would be if they existed. It found that Tadros had suffered extremely serious injuries and that many of the injuries were permanent and would likely be the source of additional health complications in the future.\\nThe court found that the City was not entitled to discretionary function immunity under \\u00a7 13-910(2) because its setting of the pedestrian crossing light was dictated by the Manual on Uniform Traffic Control Devices (manual). Upon reading the appropriate sections of the manual in pari materia, the court concluded that the \\\"pedestrian clearance interval\\\" included the flashing \\\"don't walk\\\" signal of 11 seconds, the solid \\\"don't walk\\\" signal of 4 seconds, and the additional 1-second \\\"all red\\\" signal, for a total of 16 seconds.\\nThe court then considered the negligence of the City in failing to time the pedestrian clearance interval according to the manual. It found that Tadros had presented sufficient evidence to establish liability on the part of the City. However, the court found that Tadros was contributorily negligent when she left a place of safety on the median; proceeded against a solid \\\"don't walk\\\" signal, which indicated she did not have the right-of-way; and was struck by oncoming traffic.\\nIn comparing the negligence of the parties, the court concluded that Tadros was guilty of contributory negligence equal to or greater than that of the City and that Bowley's negligence was, at best, minimal. The court accorded the following percentages of negligence: 50 percent to Tadros, 40 percent to the City, and 10 percent to Bowley. Because the court found that Tadros' percentage of negligence was 50 percent, she was precluded from recovery pursuant to Neb. Rev. Stat. \\u00a7 25-21,185.09 (Reissue 1995).\\nASSIGNMENTS OF ERROR\\nTadros assigns the following errors: The district court erred (1) in finding that the pedestrian clearance interval consists of more than the flashing \\\"don't walk\\\" signal, when the manual and expert testimony indicated otherwise; (2) in failing to consider the statutory and common-law duties of Bowley and the substantial evidence that he breached such duties; (3) in finding that Tadros was 50 percent negligent for leaving a place of safety and proceeding into oncoming traffic without looking; (4) in failing to consider Tadros' statutory duty to immediately proceed to the sidewalk once she had partially completed her crossing of West Center Road; and (5) in misapplying the law when determining the degree of Tadros' contributory negligence, if any.\\nThe City's cross-appeal asserts that the district court erred in not finding that the setting of traffic signal timing is a discretionary function, which would give the City immunity from liability.\\nANALYSIS\\nPedestrian Clearance Interval\\nTadros claims the district court erred in its determination of what constitutes a pedestrian clearance interval. The amount of time allotted for a pedestrian to cross the intersection in question is an important element in assessing the City's negligence.\\nNeb. Rev. Stat. \\u00a7 60-6,118 (Reissue 2004) states:\\nConsistent with the provisions of the Nebraska Rules of the Road, the Department of Roads may adopt and promulgate rules and regulations adopting and implementing a manual providing a uniform system of traffic control devices on all highways within this state which, together with any supplements adopted by the department, shall be known as the Manual on Uniform Traffic Control Devices.\\nThe parties do not dispute the fact that the manual is applicable to this case.\\nThe manual states at paragraph 4D-7, \\\"Pedestrian Intervals and Phases\\\":\\nUnder normal conditions, the WALK interval should be at least 4 to 7 seconds in length so that pedestrians will have adequate opportunity to leave the curb before the clearance interval is shown. . . .\\nA pedestrian clearance interval shall always be provided where pedestrian signal indications are used. It shall consist of a flashing DON[']T WALK indication. The duration should be sufficient to allow a pedestrian crossing in the crosswalk to leave the curb and travel to the center of the farthest traveled lane before opposing vehicles receive a green indication (normal walking speed is assumed to be 4 feet per second).\\nThe parties disagreed as to whether the pedestrian clearance interval for the crosswalk in question would include the flashing \\\"don't walk\\\" signal, the solid \\\"don't walk\\\" signal, and the 1-second period when the traffic signals were red in all directions.\\nThe district court interpreted the manual to require that the pedestrian clearance interval include the flashing \\\"don't walk\\\" signal, the solid \\\"don't walk\\\" signal, and the additional 1-second \\\"all red\\\" period, for a total of 16 seconds. It concluded that a finding that the pedestrian clearance interval was limited to only the period when the flashing \\\"don't walk\\\" signal was activated would be inconsistent with an interpretation of paragraph 4D-7 in its entirety.\\nThe district court's interpretation of the manual presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689 (2004). Therefore, we review the terms of the manual independent of the determination made by the district court.\\nThe plain language of the manual states that a pedestrian clearance interval consists of the flashing \\\"don't walk\\\" signal. We conclude that the district court's interpretation that the pedestrian clearance interval also included the solid \\\"don't walk\\\" signal and the 1-second \\\"all red\\\" period was incorrect. It is obvious that the purpose of the 4-second solid \\\"don't walk\\\" signal and the 1-second \\\"all red\\\" signal was to give pedestrians the necessary time to move from the middle of the \\\"farthest traveled\\\" traffic lane before oncoming traffic begins moving.\\nThe intersection in question measured 78 feet from the north curb to the middle of the southernmost lane, which was the area where Tadros was struck. At a rate of 4 feet per second, a pedestrian would require 19.5 seconds to cross from the north curb to the middle of the southernmost lane during the flashing \\\"don't walk\\\" signal. The flashing \\\"don't walk\\\" signal at the intersection of 133d Street and West Center Road provided an interval of just 11 seconds. Assuming a normal walking speed of 4 feet per second, Tadros could have walked only 44 feet. This interval could potentially strand pedestrians on the median with no way to reactivate the crosswalk signal. There was no pedestrian activation device on the median. A pedestrian would then have to either cross the eastbound lanes of traffic against the solid \\\"don't walk\\\" signal or wait for another pedestrian to activate the crosswalk signal.\\nSince the district court erred in its determination of the pedestrian clearance interval, the court also relied upon erroneous information in its apportionment of the City's negligence.\\nIn actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of a trial court will not be disturbed on appeal unless they are clearly wrong. Cerny v. Cedar Bluffs Jr/Sr. Pub. Sch., 267 Neb. 958, 679 N.W.2d 198 (2004). Determining apportionment of negligence is solely a matter for the fact finder, and its action will not be disturbed on appeal if it is supported by credible evidence and bears a reasonable relationship to the respective elements of negligence proved at trial. Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).\\nIn Aguallo, we stated that the common-law concept of contributory negligence has been abrogated by comparative negligence, which relieved the parties of an all-or-nothing situation. The apportionment of damages is determined by considering the relative fault of the parties.\\n[An] important factor to be considered in apportioning fault is \\\"the extent to which [each person's risk-creating] conduct failed to meet the applicable legal standard.\\\" Restatement (Third) of Torts: Apportionment of Liability \\u00a7 8, comment c. at 87 (2000). That party X deviated substantially from its standard of care while party Y's deviation was only slight suggests that X should shoulder a higher burden for the damage done.\\nAguallo, 267 Neb. at 808, 678 N.W.2d at 90.\\nIn the case at bar, the district court failed to properly consider the extent to which the City's conduct failed to meet the applicable legal standard. The court's apportionment of negligence did not bear a reasonable relationship to the respective elements of negligence proved by Tadros at trial. Although the court found that the City was negligent in setting the pedestrian clearance interval, it did not properly consider the effect of the City's failure to properly set the pedestrian clearance interval.\\nThe City set an interval of only 11 seconds when it should have allowed 19.5 seconds. Eleven seconds would allow a pedestrian to walk 44 feet across the intersection instead of 78 feet, the distance from the north curb t\\u00f3 the middle of the southernmost eastbound lane of West Center Road. This difference of 34 feet should have been considered by the district court in apportioning the City's negligence. The court did not properly consider the City's duty to ensure that the crosswalk signal provided sufficient time for a pedestrian to cross the intersection.\\nIn comparing the relative fault of the parties, the proper amount of time for the pedestrian clearance interval was a significant factor that the district court did not consider in its assessment of the City's standard of care. The court's apportionment of the City's negligence was clearly wrong.\\nBowley's Negligence\\nThe district court found that Bowley's negligence was minimal in that \\\"he possibly should have been more alert to the fact that he was approaching an intersection which contained an unmarked crosswalk and that the 'white vehicle' had quickly stopped in the next lane in front of him.\\\"\\nThe law imposes several duties upon drivers. Every driver is required to exercise due care to avoid colliding with a pedestrian upon any roadway. See Neb. Rev. Stat. \\u00a7 60-6,109 (Reissue 2004). \\\"Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.\\\" Neb. Rev. Stat. \\u00a7 60-6,153(3) (Reissue 2004). Drivers are required to maintain a proper lookout for their own safety and the safety of others. See Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002).\\nTadros was struck within a crosswalk area. When she entered the northernmost eastbound lane, the driver of a white car in that lane stopped for her. Bowley did not see Tadros. He proceeded through the intersection and did not stop until his vehicle struck Tadros. An engineer who analyzed automobile accidents testified that Bowley should have been able to see Tadros from as far west as 134th Street.\\nIn Styskal v. Brickey, 158 Neb. 208, 217, 62 N.W.2d 854, 861 (1954), this court stated:\\n\\\"A 'go' signal at a street intersection confers no authority on the driver of an automobile who receives this signal to proceed across that intersection regardless of other persons or vehicles that may already be within it. It is not a command to go but a' qualified permission to proceed lawfully and carefully in the direction indicated . . . .\\\"\\nA vehicle entering a street intersection with a traffic light in his favor is under obligation to use due care and to yield the right-of-way to vehicles in the intersection. His right-of-way is subject to the rights of those already in the intersection.\\nTadros was already in the intersection when Bowley approached. She was seen by the driver of the white car, and she had the right-of-way to proceed. Witnesses testified that Tadros was walking at a \\\"slow\\\" or \\\"normal\\\" pace across the intersection. No one stated that she suddenly left the median.\\nAt trial, Bowley testified that he was driving east in the south or curb lane of West Center Road. He recalled a white car in the northernmost eastbound lane but could not recall if it was ahead of him. In an earlier deposition, he stated that the white car was farther east than he was. On cross-examination, Bowley said he hit Tadros after he had passed through the intersection. He did not notice the white car slowing down.\\nPaul Gilinsky testified that he was traveling eastbound on West Center Road just before the accident. He was in the right-hand lane as he approached the intersection of 133d Street and West Center Road, and a red pickup truck was in front of him. Gilinsky said that he was traveling at about 45 miles per hour and that the pickup was traveling at about the same speed. He saw a woman standing on the northeast corner of the intersection of 133d Street and West Center Road as he drove through the intersection of 134th Street and West Center Road. He saw her on the westernmost portion of the median, saw her step off the median, and saw her walk across the street at a normal pace. He saw a white car in the left-hand eastbound lane stop, and he saw the woman walk in front of that car. Gilinsky then saw the pickup hit the woman.\\nIn Bashus v. Turner, 218 Neb. 17, 20, 352 N.W.2d 161, 164 (1984), we stated that a place of safety is \\\"any place established by the evidence that is occupied by the pedestrian just prior to sudden movement where he is then safe from injury, considering the facts and circumstances in each case then existing.\\\" We held that the determining element in a car-pedestrian accident is the pedestrian's sudden movement into the vehicle's path followed by an almost instantaneous collision. Id. The record does not support a finding that Tadros made any sudden movement into the path of Bowley's pickup. Tadros had time to walk in front of the white car and into the southernmost lane of eastbound traffic before she was hit by Bowley.\\nBowley had a duty to maintain a proper lookout. See Springer v. Bolding, 263 Neb. 802, 643 N.W.2d 386 (2002). He did not see Tadros; however, the driver of the white car saw her and stopped as she crossed the intersection. Tadros was also seen by Gilinsky, who saw her step off the median and walk across the street at a normal pace. He saw the white car stop for her, and he saw Tadros walk in front of that car. He then saw Bowley hit Tadros.\\nBowley breached his duty to maintain a proper lookout and his duty not to overtake and pass a vehicle that had stopped at the crosswalk to allow Tadros to cross the street. He had a duty to yield to Tadros, who was still in the intersection. The district court failed to consider the extent to which Bowley's conduct failed to meet his duty to Tadros. The district court's apportionment of negligence to Bowley did not bear a reasonable relationship to the respective elements of Bowley's negligence which were proved at trial. The court's apportionment of Bowley's negligence was clearly wrong.\\nDiscretionary Function Exemption\\nIn its cross-appeal, the City argues that the district court erred in not finding that setting the pedestrian clearance interval was a discretionary function involving inherent public policy issues, which would therefore exempt the City from liability. Section 13-910 provides, in pertinent part:\\nThe Political Subdivisions Tort Claims Act. . . shall not apply to:\\n(2) Any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision, whether or not the discretion is abused.\\nA two-step analysis is used to determine whether the discretionary function exemption applies. Aguallo v. City of Scottsbluff. 267 Neb. 801, 678 N.W.2d 82 (2004). The court must first consider whether the conduct is a matter of choice for the acting employee. Id. \\\"This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice.\\\" Id. at 809, 678 N.W.2d at 90. If the court determines that the conduct involves an element of judgment, it must then determine whether that judgment is of the kind that the discretionary function exemption was designed to shield. Id. If the statute, regulation, or policy specifically prescribes a course of action which an employee must follow, then there is no discretionary immunity. See Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992). The employee's conduct must involve judgment or choice or there is no discretion for the discretionary function exemption to protect. See Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).\\nIn the case at bar, the district court concluded that the manual required the City to set the pedestrian clearance interval and that the City had no discretion in making that determination. We considered the issue of discretionary immunity in the installation of traffic control devices in McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002), and concluded that discretionary immunity protected the city's act or omission in not installing traffic control devices in response to changed traffic circumstances. In Maresh, we held that discretionary immunity did not protect the State from liability where the State did not require a contractor to use, place, or install traffic control devices or markings on a highway under construction as provided for in the manual.\\nNeb. Rev. Stat. \\u00a7 60-6,121 (Reissue 2004) requires that all traffic control devices erected pursuant to the Nebraska Rules of the Road conform to the manual. Once the City elected to install the pedestrian crosswalk signal, it was required to conform to the manual in determining the pedestrian clearance interval. As previously stated, the placement of traffic control devices is a discretionary function. See Maresh v. State, supra. However, once such traffic control devices are in place, \\u00a7 60-6,121 requires that \\\"[a]ll such traffic control devices erected pursuant to the rules shall conform with the manual.\\\" Thus, the crosswalk signal was required to conform with the manual, and there was no element of choice for which discretionary immunity would apply.\\nThe City did not state any reason for a deviation from the timing set forth in the manual. The district court correctly concluded that the setting of the pedestrian clearance interval was not the product of judgment or choice, because there was no discretion allowed in setting the interval.\\nWhere the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees. . . .\\n\\\"For the government to show merely that some choice was involved in the decision-making process is insufficient to activate the discretionary function exception. The balancing of policy considerations is a necessary prerequisite.\\\"\\n(Citations omitted.) Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986).\\nThe district court correctly concluded that any alleged discretion in setting the pedestrian clearance interval was not the kind of judgment that the discretionary function exemption was designed to shield. We find no merit to the City's cross-appeal because the City was not entitled to discretionary function immunity under \\u00a7 13-910(2).\\nCONCLUSION\\nThe judgment of the district court finding that the City was not immune from liability was correct. However, the court's apportionment of negligence did not bear a reasonable relationship to the respective elements of negligence proved at trial. The court's failure to consider the duties of the City and Bowley in determining their respective negligence invalidates the court's analysis of the comparative responsibility of the parties. In Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004), we stated that when a fact finder has used an incorrect standard of care in apportioning fault between a plaintiff and a defendant, the appropriate appellate remedy will generally be to remand for a new trial so the fact finder can employ the correct standard in its apportionment analysis. Pursuant to our decision in Aguallo, the judgment of the district court is reversed and the cause is remanded for a new trial.\\nReversed and remanded for a new trial.\\nStephan, J., not participating.\"}"
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+"{\"id\": \"4400575\", \"name\": \"Julia M. Gregory and others, plaintiffs in error, v. The City of Lincoln, defendant in error\", \"name_abbreviation\": \"Gregory v. City of Lincoln\", \"decision_date\": \"1882-07\", \"docket_number\": \"\", \"first_page\": \"352\", \"last_page\": 357, \"citations\": \"13 Neb. 352\", \"volume\": \"13\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:50:34.559580+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Julia M. Gregory and others, plaintiffs in error, v. The City of Lincoln, defendant in error.\", \"head_matter\": \"Julia M. Gregory and others, plaintiffs in error, v. The City of Lincoln, defendant in error.\\n^ Dedication of Streets in City. One L., the owner of a tract of land adjoining the city of Lincoln, in 1869 and 1870 laid out the same into additions to said city and filed plats upon which \\u201c K \\u201d street was marked as if laid out, and lots were sold fronting thereon, hut the description merely extended to the outer line of the street. There was also proof of dedication. In 1876 the strip of land composing the street was sold on execution as the property of L. Held, That the purchaser acquired no title.\\n2. Ejectment:, two trials. A party is entitled as a matter of right to two trials in an action of ejectment.\\n3. Trial by Jury: waiver. In an action at law the parties are entitled to a trial hy jury; hut this is a privilege that may he waived, and if done in open court such waiver may he made orally.\\nError to the district court for Lancaster county. Tried below before Pound, J.\\nJohn S. Gregory, for plaintiffs in error.\\n1. The laying out of an \\u201caddition\\u201d to a city of the second class does not vest in the city any control of streets therein, unless they have been accepted by special ordinance for that purpose. Comp. Stat., 121, sec. 77; p. 124, sec. 95.\\n2. Conveyance to a municipal corporation of land beyond its boundaries for the purpose of a street, is void. Dillon on Mun. Corp., 533, sec. 435.\\n3. Non-user by the public, of a street or highway, for the period of five years will operate as an abandonment and reversion. Comp. Stat., p. 439, sec. 3. Evens v. City of Cincinnati, 2 Handy, 236. Pres. Church v. Cincinnati, 8 Ohio, 298. Angel on Highway, 407.\\n4. An action for recovery of real property can only be brought within - ten years from the time the cause of action accrued. ' Comp. Stat., p. 531. Gregory v. Langdon, 11 Neb*., 168.\\n5. If a highway be clearly excluded by a description of the properly conveyed by metes and distances which bring it only to the edge of the highway, the fee of the soil of such highway remains in the former owner. Jackson v. Hathaway, 15 John., 447. C\\u00e1le v. Haynes, 22 \\\"Vt., 588. Sutherland v. Jackson, 32 Maine, 83.\\n6. Where a grant is only for the me of the public,- it is easement, and not fee title. D\\u00fclon on Mun. Corp., 600, sec. 496.\\nA. O. Ricketts, for defendant in error.\\n\\u2022 1. The platting of Lavender\\u2019s first addition was in strict compliance with the statute then in force and vested in the city of Lincoln the title in fee to the street. \\u2022 Revised Statutes, p. 387, secs. 42-3. 2 Dillon on Mun. Corp., 3rd ed., see. 628, and authorities cited. 33 N. J. L., 13.\\n2. If defect in the dedication existed, which is not pointed out, so as to invalidate the same as a statutory dedication, yet the sale of property bounded by the street, the' value of which depends on the existence of the street, and the constant use by the public of other portions of the same street obtained by the same dedication, with such use of the street in question as the public demand required, and a continued recognition by the dedicator of the right of the public in the land in question, would create a common law dedication and constitute an estoppel in pais, as to plaintiffs. 2 Dillon Mun. Corp., 3d ed., secs. 628 and 638. 21 Mich., 319.\\n3. No formal acceptance of the dedication was required by the law in force under which it was made and the use and occupation thereof by the city, so far as its needs required, was sufficient evidence of its acceptance.\\n4. The statute relating to vacation by reason of non-user is applicable to public roads only, and not to streets; besides the evidence shows'a continuous use of the property. Comp. Stat., 439, sec. 3.\\n5. To constitute a possession adverse, so as to set in motion the statute, it must be actual, continued, notorious, and exclusive under a claim of right as against all persons for the full extent of the statutory period.\\n6. The pretended possession in dispute was' not inconsistent with the right of the city until about a year prior to the bringing of this action, when plaintiffs enclosed the land, prior to which time a roadway was left and the right of the public to pass over the same was recognized. The statute will not run as against the city. Horbach v. Miller, 4 Neb., 31. 2 Dillon Mun. Corp., 667 to 675. 1 Whart. (Pa.), 469. 58 Pa. St., 253. 12 111., 60..\", \"word_count\": \"1923\", \"char_count\": \"10603\", \"text\": \"Maxwell, J.\\nThis is an action of ejectment brought by the city of Lincoln against Julia M. Gregory, E. Mary Gregory, and John S. Gregory, to recover possession of a strip of land \\\" commencing at the northwest corner of block two, in Lavender's first addition to the city of Lincoln, thence running east on the north line of said - and across Nineteenth street in said city four hundred feet, thence north one hundred feet, thence west four hundred feet, thence south one hundred feet to the place of beginning;\\\" being that part of K street between the east line of Eighteenth street and the east line of Nineteenth street in said city. The defendants admit the possession, but they deny the other facts stated in the petition. As a second defense they plead that in the year 1876 they purchased said land at sheriff's sale in an action wherein one Huida Sayles was plaintiff and Luke Lavender defendant, and that said sale was confirmed and a deed made to them. They also plead adverse possession for more than ten years. The case was referred to a referee who found for the defendant in error and the report was confirmed and judgment entered thereon.\\nIt appears from the evidence that about the years 1869 and 1870, Luke Lavender being the owner of a considerable tract of land adjoining the city of Lincoln, had the same platted and the plats duly acknowledged and filed as \\\"Lavender's first and second addition\\\" to said city. It also appears that Lavender then owned the strip of land in dispute and platted the land so as to include that portion of the street in dispute, but in describing the boundaries of the tract platted, bounded the tracts on the side of the street, so that the tract in question, although marked on the plat as a street, and lots sold in reference thereto, yet was not included in the description. Whether this was done by oversight or design it is not necessary to enquire.\\nSec. 42 of chapter 53 of the Revised Statutes of 1866, which was then in force, provided that: \\\"Such plat and acknowledgment being so recorded, shall be equivalent to a deed in fee-simple from the proprietor, of all streets, alleys, avenues, squares, parks and commons, and such portion of the land as is therein set apart for public, county, village, town or city use, or is dedicated to charitable, religious, or educational purposes.\\\"\\nSec. 49 provides that: \\\"Every town plat when presented for record shall have appended to it a regular survey thereof made by some competent surveyor, beginning at some permanent, visible, natural or artificial monument, with at least one bearing post, stone, tree or object, and the surveyor shall certify that he has accurately surveyed such town, and that the streets, alleys, lanes, avenues, squares, parks, commons, and such places or lots set apart for public, village, town, city or county use, or dedic\\u00e1ted to charitable, religious, or educational purposes, are well and accurately staked off and marked. And if any pro-' prietor or proprietors of such town or addition shall sell or offer to sell any lots or subdivisions of such town or parts thereof, without complying .with the requirements of this chapter, he or they shall forfeit one hundred dollars for each lot, subdivision, or part thereof, so sold or offered for sale, to be recovered by any person who will sue for the same.\\\"\\nThe act of filing the plat in connection with Lavender selling lots upon this street certainly was a dedication to the public of the street. No one but the owner of the fee can dedicate land.to the use of the public; but where he has done an act with the intention of influencing the conduct of another as the filing of a plat of a street and selling lots fronting thereon, and such other person has thereby been induced to purchase such lots or some of them, the original owrier will be estopped to deny the dedication.\\nIn Livermore v. The City of Maquoketa, 35 Iowa, 358, one L. being the owner of a tract of land laid the same off as a towm plat, designating a block not divided as \\\" Liver-more Square.\\\"- There was evidence tending to show that after the filing of the plat, L had treated the square as belonging to the public. It was held that the dedication was sufficiently established.\\nAnd in Giles v. Ortman, 11 Kan., 59, where it appeared that the owners of land in preparing the plat of a town for acknowledgment and record intended to lay out a strip of ground as an alley and thus dedicate the same to the use of the public, and took certain steps to carry the intention into effect, it was held that but slight evidence would sustain a finding that such dedication was in fact made.\\nSo in this case, the street was marked on the plat as though it was open, and lots were sold upon such street which probably could not have been done but for the fact that it was regarded as a public thoroughfare. We think the proof fully sustains the finding of a dedication.\\nThe plea of the statute of limitations is not sustained, because the possession of Lavender from the time of the dedication until the sale of his interest in 1876 was not adverse. Livermore v. The City of Maquoketa, 35 Iowa, 358. Burhans v. VanZandt, 7 Barb., 91. Currier v. Earl, 1 Shep., 216. Johnson v. Farlow, 13 Ired. Law, 84. And the plaintiffs were not in possession ten years.\\nThe plaintiffs claim that they are entitled to two trials. This is conceded, and this is the second trial. A jury was waived by the plaintiff on the first trial, orally in open court, and the cause submitted to the court. It is claimed that this was error, that the waiver should have been in writing. A party has a right to a trial by jury in an action at law, and may insist upon his rights. But trial by jury is a privilege which may be waived, and such waiver, if made in open court, may be oral. The court has jurisdiction, and if a jury is waived, and the case tried to the court, it is its duty to hear the evidence and render judgment. The plaintiffs by purchasing the interest of Lavenderat sheriff's sale, took' merely the title possessed by him at that time, and as in our opinion he had previously dedicated the land for a street, they acquired nothing by the purchase. The judgment is therefore affirmed.\\nJudgment affirmed.\"}"
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+"{\"id\": \"4402440\", \"name\": \"Joseph Leach, plaintiff in error, v. The Milburn Wagon Co., defendant in error\", \"name_abbreviation\": \"Leach v. Milburn Wagon Co.\", \"decision_date\": \"1883-01\", \"docket_number\": \"\", \"first_page\": \"106\", \"last_page\": 109, \"citations\": \"14 Neb. 106\", \"volume\": \"14\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:19:52.964619+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph Leach, plaintiff in error, v. The Milburn Wagon Co., defendant in error.\", \"head_matter\": \"Joseph Leach, plaintiff in error, v. The Milburn Wagon Co., defendant in error.\\nJudgment Against Partnership. Where a\\u2018judgment has been recovered against a partnership in the firm name, and it is sought to subject the individual property of the members of the firm to the satisfaction of the same, it must he made to appear that the partnership property has been exhausted.\\nError to the district court for Dixon county. Tried below before Barnes, J.\\nGantt & Norris, for plaintiff in error,\\ncited: B. &. M. It. R. v. Pick & Son, 7 Neb., 242. Haskins v. Alcott, 13 Ohio State, 216. Ruth v. Lowrey, 10 Neb., 260.\\nA. G. Kingsbury, and Fawcette & Par doe, for defendant in error.\", \"word_count\": \"1001\", \"char_count\": \"5664\", \"text\": \"Maxwell, J.\\nThis is an action to recover judgment against an individual partner on a judgment against the partners as a firm. A demurrer to the petition was overruled in the court below, and the plaintiff in error (defendant below) electing to stand on his demurrer, judgment was rendered in favor of the defendant in error.\\nIt is alleged in the petition that prior to January, 1878, Joseph Leach and James A. Sawyers were a firm doing business under the name of Sawyers & Leach in Iowa and Nebraska; that- said firm became indebted to the Mil-burn \\\"Wagon Company in a large amount, and at the January, 1878, term of the circuit court, in Woodbury county, Iowa, said company recovered a judgment against said firm for the sum of $-; that an execution was issued out of said court on said judgment, which was returned unsatisfied; \\\"that at no time since the rendition of the judgment set out in the petition herein has there been any funds, assets? or property belonging to said firm out of which said judgment, or any part thereof, so far as plaintiff has knowledge or information, could have been made.\\\"\\nIt is also alleged that there was due on the judgment in question the 3d day of March, 1881, the sum of $976.39 and $74.15 costs. The prayer is for judgment against the defendant below for the sum of $1058.84, and interest at ten per cent, and to subject his individual properly to the payment of the same.\\nSec. 24 of the code provides that: \\\"Anycompany or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such usual name as such company, partnership, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove it at the trial,-the names of the persons composing such company.\\\"\\nSec. 27 provides that: \\\"If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth the judgment and insufficiency of the partnership property to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association or firm.\\\"\\nThe authority of a firm to sue and be sued in the firm name without specifying the individual names of the partners is given by statute, and has existed but a few years, the statute from which ours was copied substantially, being passed in 1846 (See 2 Curwen St., 1244). Abernathy v. Latimore, 19 Ohio, 286. The statute makes the firm a distinct entity and provides in what manner service may be had upon the firm. If a judgment is recovered against it which remains unsatisfied in whole or in part, the same proceedings may be had to subject the individual property of the partners as in an ordinary creditor's bill. This was the course pursued in the case of Haskins v. Aleott, IS Ohio State.\\nIn that case it was sought to subject the individual property of the partners to the satisfaction of a judgment against the firm. It was alleged in the petition in that case that the plaintiffs had recovered a judgment against \\\" Haskins Roller & Haskins\\\" for the sum of $1675.27, which judgment was then in full force; that an execution had been is sued thereon, which was returned unsatisfied, and that said firm had no property out of which to collect said judgment or any part thereof. The petition also set out the names in full of the individual members of the firm, and contained a prayer for judgment against them individually.\\nThis was what was attempted to be done in this case, but the petition fails to show that the partnership property had been exhausted. The return of an execution unsatisfied in Iowa would be sufficient to make a prima faoie case if it was not alleged that the firm was organized for the purpose of doing business in this state. There is no allegation, claim, or pretense that the partnership property in this state had been exhausted. The allegation quoted above falls short of negativing the existence of such property. Allegations of this kind must be stated positively although they may be sworn to upon information and belief. \\u2022 The case therefore clearly falls within that of Ruth v. Lowrey, 10 Neb., 260.\\nIt may be questioned whethei* an action can be brought against one member of a firm alone upon a joint obligation \\u2014that is, must not the action be in form against all the members of the firm although but a portion are served? See Bazell v. Belden, 31 O. S., 572-3. Fox v. Abbott, 12 Neb., 328. But this objection is not raised by the demurrer.\\nThe judgment of the district court is reversed and the cause remanded for further proceedings.\\nReversed and remanded.\"}"
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+"{\"id\": \"4404630\", \"name\": \"Leopold Levi, plaintiff in error, v. Diantha Latham, defendant in error\", \"name_abbreviation\": \"Levi v. Latham\", \"decision_date\": \"1884-01\", \"docket_number\": \"\", \"first_page\": \"509\", \"last_page\": 512, \"citations\": \"15 Neb. 509\", \"volume\": \"15\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T00:20:08.650332+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Leopold Levi, plaintiff in error, v. Diantha Latham, defendant in error.\", \"head_matter\": \"Leopold Levi, plaintiff in error, v. Diantha Latham, defendant in error.\\n1. Partnership \\u2014 nontrading: note: authority of one member to make. One partner in a non-trading partnership cannot bind his co-partner by a promissory note made by him in the firm name unless he has express authority therefor, or the giving of such note is necessary to the carrying on of the business or is usual in similar partnerships.\\n2. -: -: burden of proof. In such case, the burden is upon the party suing on the note to prove such authority, necessity, or usage; and the fact that such partnership, by the express consent and approval of each of the members, had on one occasion borrowed money from the payee of the note will not be held to give such authority, especially when the note is given for money borrowed by the member of the firm executing it for his own use and not for the firm.\\nError to the district court for Lancaster county. Tried below before Pound, J.\\nWatson & Wodehouse {O. P. Mason and R. D. Stearns with them), for plaintiff in error,\\ncited: Elliott v. Dudley, 19 Barb., 326. Spuclc v. Leonard, 9 Brad., 174. Meroein v. Mack, 10 Wend., 461. Smith v. Sloan, 37 Wis., 285. Kimbro v. Bullitt, 22 How., 256.\\nL. O. Burr, for defendant in error,\\ncited: Parsons Part., 61. Smith v. Knight, 71 111., 148. Peokv. Lust, 38 Iowa, 93.\", \"word_count\": \"952\", \"char_count\": \"5279\", \"text\": \"Reese, J.\\nThis action is upon a promissory note executed in the firm name of Monroe & Levi. The plaintiff in error and one Horace Monroe were engaged in the business of keeping a livery stable under the firm name of Monroe & Levi. During the existence of the_ partnership, Monroe borrowed of the defendant in error the sum of two hundred dollars, and executed to her a promissory note of the firm for that amount due in ninety days. This money was borrowed by Monroe for his own individual use, without the knowledge or consent of Levi, and none of it was used by the firm or went into the assets of the partnership.\\nWe think the law is well settled that one member of a non-trading partnership has no authority to bind his co-partner by a note made by him in the firm name without express authority therefor from his co-partner, or where the giving of such instrument is necessary to the carrying on of the partnership business, or is usual in similar partnerships ; and the burden is upon the party suing on a note given by one member of such firm to prove such authority, necessity, or usage. Smith v. Sloan, 37 Wis., 285. Kimbro v. Bullitt, 22 How., 256. Zuel v. Bowen, 78 Ills., 234. Greenslade v. Dower, 7 B. & C., 635. Ulery v. Ginrich, 57 Ills., 531. Hunt v. Chapin, 6 Lans. (N. Y.), 139.\\nThe testimony introduced on the trial of the cause in the district court does not disclose any such authority, necessity, or usage, and there is nothing in the record which will sustain a conclusion that either existed. It is true there was proof that the firm at one time and prior to the giving of the note set out in the petition of the defendant in error, borrowed of the defendant in error the sum of five hundred dollars, but this transaction was made by both members of the firm acting together, both being present at the time the note was given and the money received, and from this transaction we fail to see wherein any conclusion can be drawn that any authority was given, either express or implied, to one member of the partnership to bind the firm by the execution of the note declared on.\\nFrom the testimony introduced on the trial, we are satisfied that the firm of Monroe & Levi was a non-trading partnership.\\nOn the trial the court instructed the jury as follows: \\\"If the jury finds from the testimony that the firm of Monroe & Levi had, before the giving of the note sued on, and but a short time prior thereto, borrowed money from the plaintiff, you are instructed that the borrowing of such money was holding out to the plaintiff that she might loan to the firm, at the request of either, other sums until she was notified by the firm or either member thereof that the firm 'had ceased to borrow money for its use.\\\" To the giving of this instruction the plaintiff in error excepted.\\nThe plaintiff in error asked the court to give to the jury the two following instructions:\\n\\\" 2d. The jury are further instructed that where a note is given in the name of the firm by one partner in payment of his own individual debt, the law raises a presumption that it was done without the knowledge or consent of the other partner, and the burden of proving said knowledge and consent is upon the party alleging it.\\\"\\n\\\" 4th. The jury are further instructed that, if you find from the evidence that Monroe gave the note in controversy in the name of the firm of Monroe & Levi for money borrowed by him (Monroe) without the consent of Levi, then you will find for the defendant Levi.\\\"\\nThe court refused to give these instructions, to which the plaintiff in error excepted.\\nIn giving the first instruction above quoted, and in refusing to give the two last, we think the court erred. The first being in conflict with the law applicable to such partnerships as hereinbefore stated, and the two last being in harmony with that rule.\\nThe judgment of the district court is reversed, and a new trial ordered.\\nReversed and remanded.\\nThe other judges concur.\"}"
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+"{\"id\": \"4405421\", \"name\": \"Noah R. Pratt, plaintiff in error, v. Hattie E. Smith, defendant in error\", \"name_abbreviation\": \"Pratt v. Smith\", \"decision_date\": \"1886-07\", \"docket_number\": \"\", \"first_page\": \"48\", \"last_page\": 49, \"citations\": \"20 Neb. 48\", \"volume\": \"20\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:08:01.088332+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Noah R. Pratt, plaintiff in error, v. Hattie E. Smith, defendant in error.\", \"head_matter\": \"Noah R. Pratt, plaintiff in error, v. Hattie E. Smith, defendant in error.\\nPetition upon an undertaking for appeal examined and held'sufficient.\\nError to the district court for Adams county. Tried below -before Morris, J.\\nJR. A. Baity, for plaintiff in error. \\u2022\\nCapps & McCrary, for defendant in error.\", \"word_count\": \"339\", \"char_count\": \"1979\", \"text\": \"Reese, J.\\nThe original action in this case was upon an appeal bond, or undertaking, executed by plaintiff in error and another, for the purpose of enabling one Lizzie Hustern to appeal to the district court of Adams county from a judgment rendered against her b.y a justice of the peace of said -county, in favor of defendant in error.\\nThe petition filed in the district court alleged all the substantial and essential facts, apparently, and set out therein a copy of the bond, together with a copy of the final judgment rendered against said appellant, and of the \\u2022officer's return upon an execution thereon, by which he \\u2022certifies that he is unable to find any property of the judgment debtor upon which to levy to satisfy the same.\\nTo this petition plaintiff in error filed a demurrer, which was overruled, and to which he excepted, but refused to plead further. From the judgment, subsequently rendered against him, he removed the cause to this court by proceedings in error.\\nThe cause was filed in this court November 11th, 1885, but no abstract or brief having been filed by plaintiff in in -error, the defendant in error submitted the cause under the provisions of rule three of the court, without brief or abstract.\\nAs the only question presented by the demurrer filed in the district court was as to the sufficiency of the petition, we have no other question before us. This petition, as it seems to us, contains all the averments usually required in such cases, and in the absence of any defects being pointed out by plaintiff in error, it will be held good.\\nThe judgment of the district court will therefore be affirmed.\\nJudgment affirmed.\\nThe other judges concur.\"}"
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+"{\"id\": \"4405972\", \"name\": \"Amelia Kuder, appellant, v. William Twidale, appellee\", \"name_abbreviation\": \"Kuder v. Twidale\", \"decision_date\": \"1886-07\", \"docket_number\": \"\", \"first_page\": \"390\", \"last_page\": 392, \"citations\": \"20 Neb. 390\", \"volume\": \"20\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:08:01.088332+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Amelia Kuder, appellant, v. William Twidale, appellee.\", \"head_matter\": \"Amelia Kuder, appellant, v. William Twidale, appellee.\\n. Practice in Supreme Court. Where the testimony on hehalf of the plaintiff and defendant is nearly equally balanced, and is conflicting, the finding and judgment will not he set aside.\\nAppeal from Adams county. Heard below before Morris, J. '\\nW. Q. Beall and Batty & Casto, for appellant.\\nCapps & MoCreary, for appellee.\", \"word_count\": \"499\", \"char_count\": \"2863\", \"text\": \"Maxwell, Ci-i. J.\\nThis action'was brought in the district court of Adams county to foreclose a mortgage upon certain lots in the town of Juniata. The defendant, in his answer to the petition, alleges that the mortgage was paid in full by certain meat sold and delivered to plaintiff by the defendant. On the trial of the cause the court found the issues in favor of the defendant, and rendered judgment accordingly. The plaintiff appeals.\\nThe principal ground of complaint is that the judgment is against the weight of evidence. The defendant testifies that he was a butcher; that Dr. Kuder (husband of the plaintiff) kept a hotel until February, 1877; that after-wards the plaintiff kept a private boarding house; that he furnished meat to the plaintiff; that an endorsement on the note of fifty dollars was for meat furnished at the hotel; that the endorsement was made March 15th, 1877, and that he sold to the plaintiff sufficient meat to satisfy the note. In this he is corroborated by his wife. On behalf of the plaintiff, one W. G. Beall testifies that he presented the note for payment to the defendant, and that he said it had been paid by a meat bill; that he called a second time, when the defendant showed him the account book containing the charges, from which it appeared that the meat in question was charged to the husband-of the plaintiff.\\nGeorge Kuder, the husband of the plaintiff, testifies that the plaintiff's name was never on the books of the defendant; \\\"that she never bought a cent's worth of meat of him;\\\" that Twidale presented this account to him three years ago, and \\\" I told him that I did not owe him \\u2014 that the account was false.\\\" The plaintiff also testifies that she never had any dealings with the defendant, and did not owe him a cent.\\nIt will be seen that there is a direct conflict in the testimony. The meat seems to have been charged to Dr. Kuder, but if the testimony of the defendant and his wife is to be believed, it was in fact furnished to the plaintiff. We are led to infer from the testimony that the defendant did furnish meat to the plaintiff and' her husband. The tesli mony upon that point is neither very clear nor satisfactory, but sufficient, perhaps, to justify the court in finding for ihe defendant. In any event, it is impossible for this ctiurt ,to say, upon the evidence before us, that the finding is erroneous. This being so, the judgment of the court below must be affirmed.\\n_ Judgment affirmed.\\nThe other judges concur.\"}"
\ No newline at end of file
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+"{\"id\": \"4417329\", \"name\": \"C. J. Elliott et al., appellants, v. Henry Atkins et al., appellees\", \"name_abbreviation\": \"Elliott v. Atkins\", \"decision_date\": \"1889-05-16\", \"docket_number\": \"\", \"first_page\": \"403\", \"last_page\": 409, \"citations\": \"26 Neb. 403\", \"volume\": \"26\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T20:34:28.127975+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Judges concur.\", \"parties\": \"C. J. Elliott et al., appellants, v. Henry Atkins et al., appellees.\", \"head_matter\": \"C. J. Elliott et al., appellants, v. Henry Atkins et al., appellees.\\n[Filed May 16, 1889.]\\n1. Attorney: Lieu. An attorney has a lien for a general balance of compensation on any papers of his client which may come into his possession in the course of his professional employment; upon money in his hands belonging to his client, and in the hands of an adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.\\n% -: -. In order to render a defendant liable to a lien for the services of the plaintiff\\u2019s attorney, it is indispensable that a claim of lien be filed with the papers or given to such adverse party. Notice of a contract between the plaintiff and his client where no lien is claimed, will not bin'd the defendant or render him liable for the services of plaintiff\\u2019s attorney.\\nAppeal from the district court of Lancaster county. Heard below before Chapman, J.\\nLamb, Pichetts & Wilson, and J. JR. Webster, for appellants.\\nO. P. Mason, D. G. Courtnay, and J. B. Archibald, for appellees.\", \"word_count\": \"2015\", \"char_count\": \"11528\", \"text\": \"Maxwell, J.\\nIn 1884 Luke Lavender brought an action in the district court of Lancaster county to redeem certain real estate from judicial sales. It is alleged in his petition in substance that in the year 1873 Lavender possessed a large quantity of land in and adjoining the city of Lincoln, a description of which is set out in the petition; that Lavender became indebted to many persons, and borrowed money and executed certain mortgages on portions of said real estate; and a large number of judgments were recovered against him and became liens upon his real estate; and that sales under executions issued on said judgments thereafter took place,and the land was sold to the defendants, and said sales were thereafter confirmed and deeds made to the purchasers. No fraud seems to be claimed in obtaining the judgments; but it is. alleged that the defendants fraudulently prevented competition at the sales, and hence were able to purchase the property for less than its value, and for less than they otherwise would have been able to do.\\nA trial was had on the 5th day of November, 1885, and a decree rendered giving a right of redemption as to part of the lands in controversy, the decree being : \\\" The court finds the facts upon the issues joined in favor of the plaint iff as to those lands described as the southwest quarter of the northwest quarter, of the northeast quarter of section twenty-five, township ten north, of range six east, in Lancaster county, Nebraska, and that the plaintiff is entitled to redeem the same, and be restored to the possession thereof, upon the payment within six months next ensuing, of the sum of two hundred and thirty-four dollars, with interest thereon at the rate of seven per cent per annum from March 22,1879, until the same is paid into court for said defendants. It is therefore ordered and adjudged and decreed that upon the payment by the plaintiff of said sum into court for the defendants within the time aforesaid, the sheriff's sale of March 22, 1879, and deed to said lands, to wit, the southwest quarter of the northwest quarter, of the northeast quarter of section twenty-five, township ten north, of range six east, in Lancaster county, Nebraska, be set aside, annulled, and held for naught, and the title to said lands be quieted in the plaintiff as against the claim or title that said defendants or either of them, and all persons holding or claiming to hold under them or either of them, may have or claim to have under and by virtue of said sale and deed \\u2022 and that the defendants and each of them convey to plaintiff the right, title, and interest, by them or either of them held or claimed in and to said lands by virtue of said sale and deed; and that plaintiff have possession of said lands and execution therefor; and if in default of the plaintiff making such payment within the time aforesaid, it is ordered and adjudged and decreed that the title in and to said lands, to wit, the southwest quarter (J) of the northwest quarter, of the northeast quarter of section twenty-five, township ten, range six east, in Lancaster county, Nebraska, be quieted in the defendant, Martha I. Courtnay, to which defendants except. This decree, however, is not to affect the judgment or execution, lien or liens, which said defendants or either of them may have or hold on said lands.\\\"\\nThe plaintiff excepts thereto, and the court further finds \\\"as to the rest and residue of said lands in the petition described, the issues joined in favor of the defendants and against the plaintiff, and it is further ordered and decreed that the title in and to the rest and residue of said lands in the petition described, be quieted in the defendants; plaintiff excepts thereto.\\\"\\nThe court further adjudges and decrees that each party, plaintiffs and defendants, pay one-half of the costs of the action, taxed at $80.50. \\\"Thereupon the parties each severally pray an appeal from so much of this decree as is adverse to them; a supersedeas bond of plaintiff is fixed in the sum of $1,000, a bond on part of defendants is fixed in the sum of $500, the same severally to be filed within twenty days.\\\"\\nSoon after .the rendition of the above judgment, Lavender and the defendants compromised the matters of difference between them, and the action was dismissed. The plaintiffs, however, asserted that under a certain contract with Lavender they had rights in the property, and insisted on prosecuting the appeal. The appeal, however, was dismissed. (See Lavender v. Atkins, 20 Neb. 206.)\\nThe plaintiffs now prosecute the action in their own names. On the trial of the cause in the court below, the court found in favor of the defendants, and the action was dismissed.\\nThe contract referred to, after setting out a description of the lands involved, the titles of the several actions where sales had taken place, provides: \\\"And, whereas, it is deemed advisable by said Lavender to have additional legal counsel and assistance in the further management in said causes; therefore it is agreed by and between the parties hereto that the said Lamb, Ricketts & Wilson are retained in the said causes, and, together with said Elliott & Stevenson, are to conduct and manage said causes and all other suits necessary to be instituted for the purpose of recovering the whole or any portion of said property in said district court, and any other court or courts, and prosecute the same to final judgment or decree; and upon a final determination of the matters involved in said suits, the property recovered is to be disposed of as follows: First, all judgments which may at such time be and constitute subsisting and valid liens so far as may be required or necessary to be paid, and all costs in said suit, whether advanced by said Lavender or otherwise, are to be paid. Second, after the full payment of such liens, taxes, and costs, the said L. Lavender is to convey to the said Elliott & Stevenson an equal one-third part of all the remaining property so recovered, which the said Elliott & Stevenson agree to accept in full satisfaction for all legal services rendered, or hereafter to be rendered by them in said matter; and the said Luke Lavender further agrees to convey to the said Lamb, Ricketts & Wilson an equal one-third of all the said property so recovered as aforesaid, which they, the said Lamb, Ricketts & Wilson, hereby agree to accept in full satisfaction for 'all legal services rendered or to be rendered by them in said matters; and if the interests of the parties hereto demand, or for any other reason the said property is converted into money, the net proceeds thereof are to be divided between the parties hereto on the same basis of one-third to each of said above-named firms; and the said Luke Lavender further agrees to give security for costs in all cases where the same may be required, and will advance and apply all the necessary costs and legitimate expenses of such litigations, which will be first repaid him out of the proceeds as above set forth.\\\"\\nThe existence of this contract was unknown to the defendants until about the time of the dismissal of the action. Its existence was known, however, before the payment of all the consideration. The plaintiffs seek to apply the same rule against the defendants as would prevail against a purchaser of real estate with notice of an outstanding contract for the sale of the same. In our view, however, that rule does not obtain in cases of this character. In the case at bar there was no sale nor assignment of any portion of the real estate or its proceeds. There was no absolute transfer to the plaintiffs. They were merely employed to conduct the litigation to a successful termination, when all that should be realized after paying the expenses was to be divided into three parts, of which the plaintiff in that action was to have one part, and each firm of attorneys a part.\\nSection 8, chapter 7, Compiled Statutes, provides that: \\\"An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment, upon money in his hands belonging to his client, and in the hands of the adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.\\\"\\nIn Boyer v. Clark, 3 Neb. 161, it was held that this right was superior to the rights of the parties in the suit or any set-off.\\nIn Griggs v. White, 5 Neb. 467, the notice of the attorney's lien was filed with the papers in the case, and the lien held to be valid and binding. In the same case, however, certain other attorneys claimed a lien, but not for services rendered in that ease, and the notice was held insufficient.\\nIn Reynolds v. Reynolds, 10 Neb. 574, an action was brought on two promissory notes. The attorneys for the plaintiff filed an attorney's lien, of which notice was given to the defendant. Afterwards the plaintiff came into court and dismissed the case without prejudice. Her attorneys thereupon asked leave to proceed with the action to enforce their lien, and leave was granted and the action dismissed, except as to the lien. The court, by Lake, J., say: \\\"It may not be wholly out of place for us to say that, under circumstances readily suggested, one of which, and proba bly an indispensable one, was here present \\u2014 the attempted dismissal of the case by the plaintiff \\u2014 we should regard the course pursued not only permissible, but eminently proper.\\\"\\nThe latter case was cited with approval in Oliver v. Sheeley, 11 Neb. 521.\\nAn attorney, therefore, who desires to enforce a claim for his services, must file a lien to that effect; otherwise he cannot enforce a claim against-the adverse party. This claim for a lien may be filed with the papers in the case, and the adverse party will be chargeable with notice of its existence. The existence of a contract between a client and his attorney, where there is no claim for a lien, would not be notice to the adverse party that he intended to assert the claim against him, as it might be presumed that such attorney intended to rely on the responsibility of his own client. In the case at bar there is no lien claimed or filed on behalf of the plaintiffs, and nothing to apprise the defendants that claims would be asserted against them.\\nThe judgment of the court below must therefore be affirmed.\\nJudgment affirmed.\\nThe other Judges concur.\"}"
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+"{\"id\": \"4423409\", \"name\": \"E. A. Wedgewood, Sheriff, v. Citizens National Bank\", \"name_abbreviation\": \"Wedgewood v. Citizens National Bank\", \"decision_date\": \"1890-03-19\", \"docket_number\": \"\", \"first_page\": \"165\", \"last_page\": 167, \"citations\": \"29 Neb. 165\", \"volume\": \"29\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:34:36.065515+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"E. A. Wedgewood, Sheriff, v. Citizens National Bank.\", \"head_matter\": \"E. A. Wedgewood, Sheriff, v. Citizens National Bank.\\n[Filed March 19, 1890.]\\n1. Chattel Mortgages: Sale by Mortgagor: Mortgagee\\u2019s Lien. Certain mortgages upon a stock of goods were made by the then owner and the mortgagor permitted to remain in possession and sell the goods for two or more years, at the expiration of which time certain attachments were levied on the property, whereupon the mortgagees brought an action of replevin under their mortgages and, the goods having been converted into money, recovered the full amount claimed. It appeared from the testimony that a considerable part of the stock upon which the mortgage lien existed had-been sold and replaced to some extent by other goods. Held, That in no event could the mortgagees recover anything but the stock or its value upon which they had a lien.\\n2. -. The question of fraudulent intent is not involved in the case.\\nError to the district court for Hall county. Tried below before Tiffany, J.\\nThummel & Platt, and Thompson Bros., for plaintiff in error,\\ncited: Wells, Eeplevin, sec. 178, p. 94; Ames v. Boom Qo., 8 Minn., 467 ; Burnham v. Doolittle, 14 Neb., 214; Carty v. Fenstemalcer, 14 O. St., 457.\\nO. A. Abbott, contra,\\ncited : Burnham v. Doolittle, 14 Neb., 214; Skinner v. Beynich, 10 Id., 323.\", \"word_count\": \"621\", \"char_count\": \"3572\", \"text\": \"Maxwell, J.\\nThis is an action of replevin brought by the defendant in error against the plaintiff to recover the possession of \\\" The entire stock of drugs, medicines, and fixtures, toilet articles, fancy goods, and all merchandise and goods of every description; also, one fire proof safe, eleven show cases, all tools and furniture of every description, paints, oils, shelf ware, wines, whiskies, cigars, notions; also, all shelving and partitions, lamps and stoves, and everything lately contained in the store building known as Zimmer'sdrug store, or Heimberger's drug store, in the Academy of Music building, on Third street, in the city of Grand Isl- and, in said Hall county, and of the value of $1,500.\\\" The answer is a general denial. On the trial of the cause a jury was waived, and the court found the value of the property to be $1,526, and that the bank had a special interest therein to the amount of $1,137.25 and rendered judgment in its favor for that sum.\\nThe plaintiff in error claims possession under certain attachments levied by him on the property, and the defendant in error by virtue of a chattel mortgage executed by one Zimmer, dated July 28, 1884, and also one dated October 4, 1886.\\nThe testimony shows that the mortgagors were permitted after the execution of the mortgage to sell goods in the same manner as if no mortgage had been given, and a considerable portion of the property on which the mortgage lien existed had been sold and replaced by other goods. This court by a long series of decisions has held that a mortgage on goods in this state is a specific lien which attaches to the goods mortgaged and not to goods in general. (Tallon v. Edison, 3 Neb., 63; Williams v. Evans, 6 Id., 216; Hedman v. Anderson, 6 Id., 392; Gregory v. Whedon, 8 Id., 373.) In no view of the case, therefore, can the judgment in favor of the bank be sustained.\\nThe mortgagor having been in possession for so long a time before the bringing of the action and no objection being made by creditors or others, the question of fraudulent intent, or the want of it, is not referred to in the briefs and does \\\"not seem to arise in the case and will not be discussed.\\nThe judgment is reversed and the cause remanded for further proceedings.\\nReversed and remanded.\\nThe other judges concur.\"}"
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+"{\"id\": \"4423442\", \"name\": \"Annie Weigel v. City of Hastings\", \"name_abbreviation\": \"Weigel v. City of Hastings\", \"decision_date\": \"1890-04-29\", \"docket_number\": \"\", \"first_page\": \"379\", \"last_page\": 385, \"citations\": \"29 Neb. 379\", \"volume\": \"29\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:34:36.065515+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concfrr.\", \"parties\": \"Annie Weigel v. City of Hastings.\", \"head_matter\": \"Annie Weigel v. City of Hastings.\\n[Filed April 29, 1890.]\\nConstitutional Law: Act Broader Than Title: Cities: Unsafe Streets. The title of the act of 1883, to provide for the Organization, government, and powers of cities of the second class having more than five thousand inhabitants, is not broad enough to include a provision exempting the city from liabilty for injuries to persons or property arising from the neglect of a street railway company to keep the street on which it is building its line in a reasonably safe condition.\\nError to the district court for Adams county. Tried below before Gaslin, J.\\nCapps, McCreary & Stevens,\\ncited, in support of the contention that the portion of subdivision 58 which seeks to exempt the city from liability is unconstitutional: Holmberg v. Hauch, 16 Neb., 337; Boggs v. Washington Co., 10 Id., 297; Tecumseh v. Phillips, 5 Id., 305; State v. Lancaster Co., 6 Id., 474; Messenger v. State, 25 'Id., 674; White v. -City of Lincoln, 5 Id., 516; Lves v. Norris, 13 Id., 252; City of Lincoln v. Walker, 18 Id., 249; People v. Mahany, 13 Mich., 494; Cooley, Const. Lim., sec. 144; State, ex rel. Stewart, v. Kinsellafl\\u00e9 Minn., 524; Mewherter v. Price, 11 Ind., 200; Gudev. Mankota, 15 N. W. Rep., 175.\\nC. J. Dilworth, contra.\", \"word_count\": \"2229\", \"char_count\": \"12836\", \"text\": \"Maxwell, J.\\nThis action was brought by the plaintiff against the defendant to recover damages for personal injuries sustained by her in consequence of the buggy in which she was riding being overturned in a.street of that city, caused by obstructions in such street. On the trial of the cause the jury returned a verdict for the defendant, and a motion for a new tral being overruled, judgment was entered on the verdict.\\nThe plaintiff alleges in her petition : \\\" That on the 24th day of June, 1887, and for a long time prior thereto, with full knowledge of all the facts that said defendant corporation negligently permitted dangerous and unguarded excavations to be made and remain, and timbers to be strewn upon the streets of said city within the corporate limits thereof, upon St. Joseph avenue and Second street, at or near the junction thereof, into which excavation and upon said timbers, without any fault or negligence upon her part, the wheels of the buggy in which the plaintiff was riding (as she had a lawful right to do upon said streets) fell, causing her to be violently thrown therefrom into said dangerous and unguarded excavations and upon said timbers, thereby dislocating one wrist, breaking one arm, breaking one toe, inflicting a serious contusion on her head, wrenching and straining her back, and otherwise bruising and injuring said plaintiff in her body and mind, to her damage in the sum of $2,500; that by reason and in consequence of the said fall and injuries aforesaid, plaintiff' was compelled to procure and did procure medical anjl surgical attendance, and in caring and nursing for said injuries, for which she was compelled to pay out and for said services the sum of $175.\\\" There are other allegations to which it is unnecessary to refer.\\nThe defendant in its answer alleges : \\\" That the only excavations existing and the only timbers strewn within the corporate limits of said defendant city, upon said St. Joseph avenue and Second street, ht or near the junction thereof, on the 24th day of June, 1887, as alleged in said petition, were timbers strewn and excavations made by the Hastings Improvement Company, a street railway company, then and heretofore existing under the laws of the state of Nebraska, and theretofore granted a franchise for constructing and operating a system of street railways in said defendant city, and on said 24th day of June, 1887, and heretofore the owner of a street railway then in process of construction, under and by virtue of its franchise as aforesaid, on St. Joseph avenue and Second street, and at and near the junction thereof, in said defendant city, and the excavations so made and timbers so strewn, as hereinbefore set forth, were upon that portion of said avenue and said street where said company had located its track and were upon that portion of said streets which said company was and is required by the law to keep in repair and safe in all respects for the use of the traveling public.\\\" It also pleads want of notice and alleges in substance that the accident was caused by the fault of the plaintiff, etc.\\nThere is a reply, to which it is unnecessary to refe.r.\\nOn the trial of the cause the court gave the following instruction: \\\" Subdivision 58 of sec. 52, ch. 14, page 218, Compiled Statutes of Nebraska, 1887, passed and .took effect March 30, 1887, reads as follows: ' The track of all railway companies, when located upon the streets and avenues of the city, shall be kept in repair and safe in all respects for the use of the traveling public, and such .companies shall be liable for all damages resulting by reason of neglect t\\u00f3 keep such tracks in repair, or for obstructing the streets or avenues of such cities. For injuries to persons or property arising wholly from the failure of such company to keep their tracks in proper repair and free from obstructions, such companies shall be liable, and the city shall be exempt from liability.' Under this provision of the statute, if you find the injury complained of was occasioned wholly by the railroad, provided you find a railroad was located by law at the place where the alleged injury occurred you will find for defendant.\\\" To the giving of the same, exceptions were duly taken, and said instruction is now assigned for error.\\nIn 1883 an act \\\"to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants\\\" was duly passed by the legislature and became a law. Section 31 of this act provides: \\\" The mayor and council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair, and free from nuisances. But all public bridges, exceeding sixty feet in length, over any stream crossing a state or county highway, shall be constructed and kept in repair by the county.\\\"\\nThe third subdivision of section 52 authorizes the passage of ordinances \\\" To provide for the grading and repairs of any street, avenue, or \\\"alley, and the construction of bridges, culverts, and sewers, and shall defray the repairs of the same out of the general fund of such city, not exceeding two mills of the levy for general purposes, but no street shall be graded except the same be ordered to be done by the affirmative vote of two-thirds of the city council.\\\"\\nThe 30th subdivision of the same section grants the authority \\\"To prevent and remove all encroachments into and upon all sidewalks, streets, avenues, alleys, and other city property; and to prevent and punish all horse racing, fast driving or riding, in the streets, highways, alleys, bridges, or places in the city, and all games, practices, or amusements therein, likely to result in damage to any person or property; to regulate, prevent, and punish the riding, driving, or passing of horses, mules, oxen, cattle, or other teams, or any vehicle drawn thereby, over, upon, or across sidewalks, or along any street of the city; to regulate and prevent the use of streets, sidewalks, and public grounds for signs, sign posts, awnings, telegraph, telephone, or other- poles, racks, bulletin boards, and the posting of handbills and advertisements; to regulate traffic and sales upon the streets, sidewalks, and public places; to punish and prohibit cruelty to animals; to regulate and prevent the moving of buildings through or upon the streets.\\\"\\nThe 35th subdivision of the. same section grants the power \\\"To open, widen, or otherwise improve or vacate any street, avenue, alley, or lane within the limits of the city, and also to create, open and improve any new street, avenue, alley, or lane; Provided, That all damages sustained by the citizens of the city, or the owners of the property therein, shall be ascertained in such manner as shall be provided by ordinance; Provided, further, That whenever any street, avenue, alley, or lane shall be vacated the same shall revert to the owners of the adjacent real estate, one-half on each side thereof.\\\"\\nThe 58th subdivision of sec. 52, art. 2, ch. 14, Comp. Stats., provides that \\\"The city council shall have power to open, extend, widen, narrow, grade, curb, gutter, and pave, or otherwise improve and keep in good repair, or cause the same to be done, in any manner they may deem proper, any street, avenue, or alley within the limits of the city. Provided, also, That all street railway companies now existing or hereafter created, in any city governed by this act, or that shall hereafter be organized thereunder, shall be required to pave or repave between and to one foot beyond their outer rails, or in case said railway uses more than one track in any street, they shall pave between and to one foot beyond their outer rails where such company owns, at their own cost. Whenever any street shall be ordered paved or repaved by the mayor and city council of such city, such paving or repaving shall be done at the same time and, shall be of the same material and character as the paving or repaving of the street upon which said railway track is located, unless other material be specially ordered by the board of public works. Such street railway companies shall be required to keep that portion of the street required by them to be paved in repair, using for said purpose the same material as the street upon which the track is laid at the point of repair, or such other material as the board of public works may require and order upon streets in cities governed by the act. As streets are hereafter required to be paved or repaved, street railway companies shall be required to lay, in the best approved manner, the strap or flat rail. The track of all railway companies, when located upon the streets or avenues of the city, shall be kept in repair and safe in all respects for the use of the traveling public, and such companies shall be liable for all damages resulting by reason of neglect to keep such tracks in repair, or for obstructing the streets or avenues of such city. For injuries to persons or property arising wholly from the failure of such company to keep their tracks in proper repair and free from obstructions, such companies shall be liable, and the city shall be exempt from liability.\\\"\\nThe defendant's attorney claims that this provision exempts the city from liability. The plaintiff contends that the provision is void, as it is not within the title of the act. And this is the principal question for determination. Under the title of the act in question all matters relating to the organization, government, and powers of a city like Hastings are proper subjects of legislation. When, however, it is sought to include other powers, the title of the act must designate the purpose, or the act will be invalid, otherwise the constitutional provision would be of no force and effect. Thus in Foxworthy v. Hastings, 23 Neb., 772, it was held that a special provision in the act relating to cities of the second class limiting the time in which to bring an action against the city to six months was not within the title of the act and therefore was void; and in Touzalin v. Omaha, 25 Neb., 817, it was held that a provision in the act relating to cities of the first class, declaring that \\\"no court or judge shall grant any injunction to restrain the levy, enforcement, or collection of any special tax, or assessment,\\\" etc., was not within the title of the act and was void. To the same effect are Holmberg v. Hauck, 16 Neb., 337, S. C., 20 N. W. R., 279; Tecumseh v. Phillips, 5 Id., 305; White v. Lincoln, 5 Id., 505; Ives v. Norris, 13 Id., 252; State v. Lancaster Co., 6 Id., 474.\\nThe legislature has clothed the city of Hastings with power over its streets^ and the duty devolves upon it to keep them in a reasonably safe condition, and it cannot be exempted from liability by any section not within the title of the act which either from design or otherwise may have been inserted in the bill. Whether as between the city and street railway company it is valid or not, we need not now inquire, but as to third persons, who have sustained an injury through the negligence of the city by reason of defects in its streets, the provision is void. An important provision of this kind should be passed, if at all, in a separate bill, but that question is not before the court. The court therefore erred in giving the instruction above set out. The judgment of the district court is reversed and the cause remanded for further proceedings.\\nReversed and remanded.\\nThe other judges concfrr.\"}"
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+"{\"id\": \"4427628\", \"name\": \"Hannah A. Townsend et al. v. J. I. Case Threshing Machine Co.\", \"name_abbreviation\": \"Townsend v. J. I. Case Threshing Machine Co.\", \"decision_date\": \"1891-05-06\", \"docket_number\": \"\", \"first_page\": \"836\", \"last_page\": 842, \"citations\": \"31 Neb. 836\", \"volume\": \"31\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:21:58.777261+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Hannah A. Townsend et al. v. J. I. Case Threshing Machine Co.\", \"head_matter\": \"Hannah A. Townsend et al. v. J. I. Case Threshing Machine Co.\\n[Filed May 6, 1891.]\\n1. Review: Submission Without Briefs. The several errors examined, and there being no brief pointing to the materiality or prejudicial character of the errors, which, in the absence of argument and authority, are not apparent, the several assignments are overruled.\\n2. Taxes: Payment by Mortgagee. When the payment of taxes assessed on real estate is necessary to protect his security, a mortgagee may pay the same and have the amount added to the mortgage principal as necessary expenses incurred in protecting the security. (Southard v. Dorrington, 10 Neb., 119, and authorities there cited.)\\nError to the district court for Gage county. Tried below before Appelget, J.\\nRichards & Provi, for plaintiffs in error.\\nHastings & McGintie, contra.\\nNo briefs filed.\", \"word_count\": \"2071\", \"char_count\": \"11989\", \"text\": \"Cobb, Ch. J.\\nThe J. I. Case Threshing Machine Company, a private corporation under the laws of the state of Wisconsin, on May 28, 1888, brought its action in the district court of Gage county against Hannah A. Townsend and Wallace J.' Townsend, her husband, defendants, to recover certain promissory notes, secured by certain mortgages on lots 1 and 2, in block 1, in the city of Beatrice, in said county, as follows:\\n1. The defendant's note, for value received, for $400, dated January 27, 1885, due three years after date, with ten per cent interest, payable semi-annually, to Benjamin F. Leidy, secured by mortgage of even date, duly recorded, and assigned and delivered to the plaintiff. On this note there is a credit of $20, July 27, 1885, being the interest to that date.\\n2. The defendant's note to plaintiff for $362.30, dated September 18, 1886, payable December 1, 1888, at seven per cent interest.\\n3. The defendant's second note to plaintiff for $362.30, of same date, payable December 1, 1889, with same rate of interest, both notes secured by a second mortgage on the same premises, and duly recorded and held by plaintiff.\\n4. The defendant's third note to plaintiff for $386.10, dated' January 16, 1888, payable December 3, 1890, at seven per cent interest, secured by a third mortgage on the same premises, and duly recorded and held by plaintiff.\\nThe plaintiff, to protect its lien on the mortgaged property, on June 22, 1888, paid the taxes of the year 1887 to the county treasurer, $33.79.\\nThe plaintiff alleges that the first note has long been due and unpaid, except the sum of $20 interest thereon to July 27, 1885, as stated; that the mortgage security is conditioned that if Hannah A. Townsend, her heirs, etc., shall pay the note on or before January 27, 1888, with interest, the mortgage due shall 'be void, otherwise in full force and effect, and whereby said mortgage has now become absolute; that on January 27, 1885, the mortgagee indorsed and transferred both note and mortgage to the plaintiff for a valuable consideration, and it is now the owner and holder thereof, and that no suit or other proceedings have been taken to recover the same; that, to protect its lien on the mortgaged property, the plaintiff, on June 22, 18S8, paid the taxes for the year 1887 to the county treasurer, amounting to $33.79, which additional sum with interest is due.\\nThe plaintiff further alleges that the premises consist of two contiguous city lots in the city of Beatrice, with a building erected for business purposes, which cannot, without doing the property great and irreparable injury, be separated or divided, and that it is to the interest of all parties that the property be kept intact.\\nAn account is asked of the amount due and to become due on the notes and mortgages held by plaintiff; that a foreclosure of each and all be had, and the premises sold as an entirety to pay the amount due, with judgment for such sum as may remain due.\\nTo the petition the defendants demurred, which was overruled. The defendants' motion requiring the plaintiff to separately state and number its several different causes of action set forth in its petition was overruled, and the cause was tried to the court.\\nThe following decree was entered :\\n\\\"On this 2d day of October, 1888, it being the ninth day of the regular September term, this cause was heard upon the demurrer of defendants to the plaintiff's petition, and after the arguments of counsel, and the court being fully advised in the premises, the demurrer is overruled; to which'defendants excepted.\\n\\\"On the same day the cause was further heard on the defendant's motion to compel the plaintiff to separately state and number the several causes of action, which was argued by counsel, and the court being fully informed in the premises overruled the motion; to which defendants excepted.\\n\\\"And on the same day the cause was further heard on the pleadings and evidence, and the court finds all the issues in favor of the plaintiff, and that there is due on the first note described in the petition the sum of $527.21; that the same is drawing interest at ten per cent per annum and is secured by the mortgage dated January 27, 1885; that default has been made in the conditions of said mortgage and the plaintiff is entitled to a foreclosure thereof; that on June 22, 1888, the plaintiff paid the taxes for the year 1887 on the mortgaged premises, in the sum of $33.79, and there is now due thereon $34.71, making a total due the plaintiff from defendants of $561.92.\\n\\\"And the court finds that on September 18, 1886, the defendants executed their note to plaintiff for $362.30, due December 1, 188S, at seven per cent interest, on which there is now due $414.08, and on the same clay executed their note to plaintiff for $362.30, due December 1, 1889, at seven per cent interest, on which is now payable $414.08, to secure which defendants executed the mortgage described in the plaintiff's petition.\\n\\\"And the court further finds that on January 16, 1888,, defendants executed their note to plaintiff for $386.10, at seven per cent interest, on which there is now due $405.39, to secure which note the defendants on the 16th of January, 1889, executed their mortgage deed on all and singular the premises described in plaintiff's petition; and that all of the mortgages were duly recorded and are a lien upon said premises in the order named,; and that the property cannot, without great injury thereto, be separated or divided, and should be sold together.\\n\\\"It is therefore ordered, adjudged, and decreed that unless said sum so found now to be due, $561.92, with interest from this day at ten per cent per annum, and costs,, be paid, that said premises be duly appraised, advertised,, and sold in manner provided by law, to pay said sum now due and the said several sums hereafter to grow due, to-wit r $414.08, December 1, 1888; $414.0^, December 1, 1889 $405.39, December 1, 1890; each of said last named sums to bear interest at\\\"the rate of seven per cent per annum from this 2d day of October, 1888.\\n\\\"And that said defendants, and auy and all persons claiming said premises or any interest therein under or through the defendants, be forever foreclosed.\\\"\\nOn May 18, 1889, the defendant below, Hannah A. Townsend, brought the cause to this court on her petition in error, assigning the following errors:\\n1. Tire court erred in overruling the motion to compel the plaintiff below to separately state and number its several causes of action.\\n2. In overruling the demurrer of the defendants below.\\n3. The findings of fact are inconsistent with the petition of the plaintiff below.\\n4. In the amount found due on the first mortgage mentioned, the same being too large.\\n5. In finding that default had been made in the conditions of the first mortgage mentioned in the petition, no such default having been alleged.\\n6. In including the amount of taxes alleged to have been paid by plaintiff below, the same not having been provided for in the mortgage deed.\\n7. In the amount found due on the second note, the same being too large.\\n8. In the amounts found due on the third and fourth notes, the same being too. large as to' each.\\n9. In computing the several notes in the second mortgage not then due, and decreeing that said amounts should draw interest from October 2, 1888.\\n10. In decreeing foreclosure of the second and third mortgages, no part thereof being due.\\n11. The decree is not supported by the findings of the court, and is inconsistent therewith.\\n' From the record it appears that the cause, or causes, of action are distinctly stated as upon promissory notes due and to become due, secured by three separate mortgages, all executed by the plaintiff in error and the defendants in this action in the court below, upon one piece of real estate, being two city lots not capable of division; and the several notes made by the plaintiff in error, and the separate liens held by the defendant in error'against her premises, constituting the cause of action, are stated and num bered in separate paragraphs in accordance with sections 92 and 93 of the Code of Civil Procedure. That a note past due, secured by mortgage, thus stated, is a sufficient fact to constitute a cause of action for foreclosure, will not be further argued. The first and second errors are overruled.\\nThe findings of fact by the court below do not appear to be inconsistent with the allegations of the petition, and no such inconsistency being specifically alleged by the plaintiff in error, the third error is overruled.\\nThe fourth error, that the amount found due on the first mortgage is too large, if, in fact, an error, is one to have been corrected in the trial court, but it does not appear that an objection was made, or exceptions taken, at the trial. If in actions of foreclosure, as in cases of partition, judgment be entered after a demurrer to the answer has been sustained, or a demurrer to the petition overruled, and it recite that it is rendered on the pleadings and evidence, the error, if any, should have been corrected below, or an application made in that behalf and overruled should be shown. (Mills v. Miller, 2 Neb., 299.) The fourth error is overruled.\\nThe default in the payment of the note, secured by the first mortgage, is definitely alleged, whereby the. mortgage has become absolute. The fifth error is, therefore, without significance.\\nThe sixth error is that of including the taxes paid by defendant in error, the same not having been provided for by the terms of the mortgage security. This error must be overruled. The acknowledged rule has been, for more, than ten years, in this state, that \\\" when the payment of taxes assessed on real estate is necessary to protect the security, the mortgagee may pay the same, and have the amount added to the mortgage debt as expenses necessarily incurred in protecting the security.\\\" (Southard v. Dorrington, 10 Neb., 122.)\\nIn the seventh, eighth, and ninth assignments, if there' be errors of \\u2022 computation as to the amounts found due, on the notes and mortgages of the plaintiff in error, it should have been corrected in the court below, or an application to that effect, if overruled, should have been shown by exceptions.\\nThe tenth error is that of the plaintiff in error, rather than of the court in its decree. The court does not decree the foreclosure of the second and third mortgages, but finds the amounts of the notes secured by those mortgages as subsequent, junior liens on the same premises of the first mortgage, which alone is foreclosed; and under it the premises is ordered to be sold under section 852 of the Code of Civil Procedure.\\nThe eleventh error, that the decree is inconsistent with the findings of the court, is deemed wholly immaterial after what has been said, and is remitted without observation. The avails of sale are to be applied under section 854 of the Code, under the order of the court, and any errors of computation .maybe settled by the court below on confirmation of sale and distribution of the proceeds. The decree of foreclosure and sale is\\nAffirmed.\\nThe other judges concur.\"}"
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+"{\"id\": \"4433350\", \"name\": \"Martin Devine v. Ira J. Burleson\", \"name_abbreviation\": \"Devine v. Burleson\", \"decision_date\": \"1892-09-21\", \"docket_number\": \"\", \"first_page\": \"238\", \"last_page\": 239, \"citations\": \"35 Neb. 238\", \"volume\": \"35\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:31:14.032416+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"Martin Devine v. Ira J. Burleson.\", \"head_matter\": \"Martin Devine v. Ira J. Burleson.\\n[Filed September 21, 1892.]\\nForcible Entry and Detention: Description of Land. A description of a bract of land in a complaint in an action of forcible entry and detainer, before a justice of tbe peace of Holt county, as tbe \\u201cN. W. J- section 20, township 29, range 14 west,\\u201d is not void for uncertainty, although neither the meridian, county, nor state is given. There is but one tract of land in this state to which such description is applicable, and that is situated in the county where the action was originally brought.\\nError to the district court for Holt county. Tried below before Tiffany, J.\\nM. P. Kinhaid, for plaintiff in error.\\nM. F. Harrington, contra.\", \"word_count\": \"486\", \"char_count\": \"2819\", \"text\": \"Norval, J.\\nThis is an action for the forcible entry and detainer of real property, commenced by Ira J. Burleson, before T. W. Iron, a justice of the peace of Holt county, where the plaintiff had judgment. The defendant took the case on error to the district court, where the judgment of the justice was sustained.\\nBut a single proposition is submitted for our consideration, and that is, Does the complaint sufficiently describe the premises for the possession of which the action is brought? The description in the complaint is the \\\"northwest quarter section 20, township 29, range 14 west.\\\" It is insisted that the description is not sufficiently definite, as neither the meridian, county, nor state is given. The objection is untenable. The description is not defective, for the premises are definitely described. There is no, uncertainty as to the lands intended. True, the meridian, is omitted, but the courts of this state will take judicial notice of the mode of the general government of surveying public lands, and that there is but one meridian line in this state. We know that there is but one tract of land in this state to which the description contained in the complaint is applicable, and that is situated in Holt county. The premises could be established and identified by a competent surveyor without difficulty. The case is brought within the authority of Cummings v. Winters, 19 Neb., 719. It was there held that a notice to quit in forcible entry and detainer, which described the premises as \\\" the northeast quarter of section 28, 37, R. 7,\\\" sufficiently identified the property. (See Butler v. Davis et al., 5 Neb., 521.)\\nA description in a deed like the one contained in the complaint before us would not be void for uncertainty. (Kykendale v. Clinton, 3 Kan., 85; Atwater v. Schenck, 9 Wis., 160; Doughtery v. Purdy, 18 Ill., 206; Billings v. Kankakee Coal Co., 67 Id., 489; Kile v. Yellowhead, 80 Id., 208; Smith v. Crawford, 81 Id., 296; Russell v. Sweezey, 22 Mich., 235.)\\nIt follows from what has been said that the judgment of the district court must be\\nAffirmed.\\nThe other judges concur.\"}"
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+"{\"id\": \"4448129\", \"name\": \"Consolidated Tank Line Company v. Bendix Pien et al.\", \"name_abbreviation\": \"Consolidated Tank Line Co. v. Pien\", \"decision_date\": \"1895-04-16\", \"docket_number\": \"No. 6364\", \"first_page\": \"887\", \"last_page\": 888, \"citations\": \"44 Neb. 887\", \"volume\": \"44\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:25:43.227372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Harrison, J., not sitting.\", \"parties\": \"Consolidated Tank Line Company v. Bendix Pien et al.\", \"head_matter\": \"Consolidated Tank Line Company v. Bendix Pien et al.\\nFiled April 16, 1895.\\nNo. 6364.\\n1. Ejectment: Evidence. The declarations of a former owner of land are not admissible as against those claiming under him when made after he has conveyed the land.\\n2. -: -. The evidence held sufficient to sustain the verdict.\\nError from the district court of Hall county. Tried below before Harrison, J.\\nW. H. Platt, for plaintiff in error.\\nW. A. Prince, contra.\", \"word_count\": \"570\", \"char_count\": \"3313\", \"text\": \"Irvine, C.\\nThis was an action of ejectment by the plaintiff in error against Bendix Pien and Johann Frederick Wiese for a small tract of land adjoining the city of Grand Island. The plaintiff, in 1888, purchased a tract including that in \\u2022dispute. Bendix Pien had been the owner of a tract immediately north of this for many years and in 1887 conveyed it to Wiese by warranty deed. The tract, gs fenced and occupied by the defendants, included a portion of that \\u2022claimed by the plaintiff, and this portion was'the land in in controversy. The contest was practically centered upon the plea of adverse possession interposed by defendants. 'There was a verdict and judgment for defendants.\\nPlaintiff in error argues but two assignments. One of these relates to the exclusion of evidence, and the other is that the verdict is not sustained by the evidence. Of the latter assignment it is sufficient to say that the evidence has been examined and that it discloses a conflict in some par tieulars rather remarkable. We are satisfied that there was sufficient to sustain the verdict of the jury. The other assignment is that the court erred in excluding the evidence of an admission made by Pien. It would be inferred from the evidence that Pien continued, after his conveyance to Wiese, to reside on the land with Wiese. The nature of his residence does not appear. The admission referred toT according to the offer made by plaintiff, must have beea made in 1889, two years after Pien had conveyed his whole estate to Wiese, and was to the effect that Pien knew his-fence was beyond his line. It has been held in this state,, in accordance with the general rule, that the declarations of a person in possession of property as to his title are admissible against him and all persons claiming under him (Cunningham v. Fuller, 35 Neb., 58); but we do not think that this rule extends so far as to authorize the admission in evidence of declarations by a grantor of land made after the conveyance in disparagement of the title conveyed. To admit such evidence would open the door to fraud, and would permit the grantee's estate to be divested by the statements of his grantor contrary to the terms of his deed. The reasons given for admitting in evidence the declarations of a former owner are that the declarant was-so situated that he probably knew the truth, and that the declaration in disparagement of his title, being against his. interest, .was probably true. The latter reason fails altogether when the former owner has parted with his interest, before making the declarations. (Chadwick v. Fonner, 69 N. Y., 404.) That such admissions are not receivable iiu evidence when made after the grantor has parted with his; title see Christie v. Bishop, 1 Barb. Ch. [N. Y.], 105. There was no error in excluding this evidence.\\nJudgment affirmed.\\nHarrison, J., not sitting.\"}"
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+"{\"id\": \"4459979\", \"name\": \"William D. Abel, Executor, appellant, v. Almira J. Gill et al., appellees\", \"name_abbreviation\": \"Abel v. Gill\", \"decision_date\": \"1914-02-13\", \"docket_number\": \"No. 17,550\", \"first_page\": \"279\", \"last_page\": 285, \"citations\": \"95 Neb. 279\", \"volume\": \"95\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T20:48:49.933642+00:00\", \"provenance\": \"CAP\", \"judges\": \"Barnes, Rose and Sedgwick, JJ., not sitting.\", \"parties\": \"William D. Abel, Executor, appellant, v. Almira J. Gill et al., appellees.\", \"head_matter\": \"William D. Abel, Executor, appellant, v. Almira J. Gill et al., appellees.\\nFiled February 13, 1914.\\nNo. 17,550.\\n1. Specific Performance: Sufficiency of Evidence. Findings of fact made by the district court examined and approved.\\n2. Vendor and Purchaser: Contract: Construction. Contract set forth in the opinion held to be an executory contract of sale and not a mere option.\\nAppeal from the district court for Merrick county: George H. Thomas, Judge.\\nReversed with directions.\\nW. T. Thompson and Martin & Boches, for appellant.\\nE. E. Ross and Reeder & Lightner, contra.\\nModified. See opinion, p. 285, post.\", \"word_count\": \"2345\", \"char_count\": \"13403\", \"text\": \"Letton, J.\\nThis action is brought by the assignee of the contract hereinafter set forth to specifically enforce its terms. She afterwards died, and the action was revived in the name of her executor. The defendants plead that the land described in the contract is their family homestead; that they are aged and in feeble health; that Robert Gill is unable to read or write, and Almira J. Gill by reason of defective eyesight can only read with great difficulty, and that neither are familiar with the transaction of business; that on the evening of July 28, 4909, George Beardsley and James Wolfe came to their home; that defendants offered to sell their land for $60 an acre, and Beardsley and Wolfe agreed to purchase at that price, informing defendants that Wolfe was to be the purchaser; and that a written agreement was prepared which the defendants were unable to read, and, believing tbe statements of Wolfe and Beardsley, they attached their signatures to the paper. They deny that they executed and acknowledged the instrument set forth in the petition, and aver that as soon- as they learned that the instrument provided for a consideration of $9,000 instead of $9,600 they repudiated it and offered to return the $100 paid to them; that the plaintiff was aware of these facts before she took the assignment.\\nThe district court found, in substance, that the property was the family homestead, that the defendants duly signed, executed, acknowledged, and delivered the written contract sued upon to Wolfe; that the consideration actually agreed upon was that stated in the contract; that the- defendants were paid $100, which they retained, and in January, 3910, tendered back to Wolfe, and that at such time the defendants knew that the contract had been assigned to Susan M. Abel; that Mrs. Abel paid $1,500 for. the assignment; that she, afterwards, was notified that defendants repudiated the contract, would not perform its terms or conditions, and would not receive any further money as payment upon the same, and that she was thereby relieved from the obligation to tender strict performance; that Mrs. Abel was at all times prior to her death ready, able and willing to fully perform all the terms and conditions of the contract, and has tendered full performance. The court also made the following findings of law: \\\"Eighth. That the contract sued upon is, in legal effect and construction, an option contract selling only the right to purchase, and is not a contract of purchase and sale of land. Ninth. That the defendants in making and entering into such contract did not know or contemplate that they were making and entering into an option contract selling only the right to purchase this land, but in so doing did contemplate and intend thereby to make\\\" and enter into a contract of sale and- purchase, and the contract sued upon herein is therefore not the contract of these defendants and ought not therefore to be enforced in equity.\\\" A decree was then entered canceling the contract upon the defendants paying $100 with interest into court and dismissing plaintiff's action. Plaintiff excepted 'to the eight and ninth findings, and to the judgment, and brings this appeal.\\nThe matters actually put in issue by the pleadings and the evidence were: (1) Whether the consideration actually agreed upon Was expressed in the contract; (2) whether the contract was duly acknowledged; (8) whether the contract in evidence was the identical paper which had been signed by the defendants.\\nThe evidence shows that the defendants were owners of a farm which originally consisted of 160 acres. The right of way of the Union Pacific Railroad Company ran diagonally through the land, taking about ten acres. The defendants testified the price they agreed to take for the land was $60 an acre, or $9,600, and that they understood that Wolfe was willing to buy at that price and that the contract was for that amount. They further testify that no acknowledgment was taken. The contract price is not shown to h\\u00e1ve been so disproportionate to the value of the farm as to raise any presumption of fraud. A day or two after the contract was signed the defendants told a neighbor they had sold the farm for $9,000. They were given a copy of the contract about August 12, 1910, and several months afterward they held a sale of the personal property on the farm and negotiated for a house and a small tract of land for a home. It was shown that, while Mr. and Mrs. Gill were over 70 years of age, Mr. Gill had always conducted his own business affairs with the help of his wife when any correspondence was required; that Mrs. Gill was in poor health, but no mental failure or infirmity is shown. There is a direct conflict upon almost every material point in the case. In such a controversy the observation of the living witness often determines in the mind of the court the truth or falsity of his story, and we are disposed to give consideration to its judgment in this respect. Taking the testimony as a whole, we believe the district court was warranted in its finding of facts.\\nWhether the conclusions of law can be supported is a more serious question. The contract is as follows: \\\"In consideration of the sum of one hundred dollars in hand paid receipt whereof is hereby acknowledged, the undersigned Almira J. Gill and Bobert Gill, her husband, hereby grant, bargain, sell and agree to convey to James Wolfe, or assigns, following described real estate, to wit: The southeast quarter (S. E. %) of section two (2), township fourteen (14) north, of range five (5) west of the 6th P. M., situated in Merrick county, Nebraska. The said James Wolfe shall have until the first day of January, 1910, and March 1, 1910, within which to pay the remainder of the consideration of said land, which is as follows: Nine hundred dollars ($900) on January 1, 1910, four thousand ($4,000) March 1, 1910, and the balance $4,000 in notes of even date with the deed maturing March 1, 1913, to be secured by first mortgage on said land, said notes to bear interest at the rate of 6 per cent, per annum from date. The undersigned also hereby agree to furnish a good and sufficient abstract showing perfect title to be in Almira J. Gill. Should said Wolfe fail or refuse to fulfil this contract, the amount this day paid is to be forfeited to the undersigned as liquidated damages. Signed this 28th day of July, 1909. Witness to all signatures: George Beardsley.\\nAlmira J. Gill.\\nBobert Gill.\\nJames Wolfe.\\\"\\nThe judgment of the district court is based upon the proposition that the contract is an option contract and not one of bargain and sale, and that defendants did not so understand it. Of course, an option contract, if fairly entered into and its conditions performed, may be specifically enforced. But is this an option contract? It is an elementary rule in the construction of contracts that the construction given to a contract by the parties themselves will ordinarily be given to it by the courts. Another principle is that, in construing a contract, a construction which will make it binding and operative will be preferred to one which would make the contract void. Shuman v. Willets, 17 Neb. 478.\\nWe agree with the trial court that it was the intention of the parties to enter into a contract of bargain and sale. The only objection made to the contract by the defendants until after suit was begun was that it should have been for $9,600, $60 an acre for the whole 160 acres, instead of $60 per acre, or $9,000, for the 150 acres exclusive of the right of way. The assignee of the contract has been at all times, ready and willing to perform the contract according to its terms, but the defendants refused to perform unless the $600 additional to the amount specified was paid to them. The vendee entered upon the land and plowed about 28 acres by oral agreement, as he testifies, and defendants were given the privilege of using firewood from the place. The contract has evidently been considered by both parties at all times as a contract of purchase and sale and not as a mere option.\\nAside from these considerations, we are of opinion that there is mutuality in the contract, and that it does more than grant a mere option to purchase. By its terms defendants \\\"grant, bargain, sell and agree to convey\\\" the land described therein. The language is that of a sale of the property with a condition subsequent that the price shall be paid, and not that of a sale of the mere privilege of buying the property. The $100 paid down and the $900 to be paid on the 1st of January is in consideration of the sale, and not until the subsequent condition that the sum of $4,000 is to be paid and a $4,000 note secured by mortgage given is the agreement to convey to be complied with. If an actual deed of conveyance had been made with the provision in a written paper signed by both parties that \\\"Wolfe shall have until the 1st of January, 1910, and March 1, 1910, to pay the remainder of the consideration,\\\" could it with any reasonable basis be said that an obligation did not arise on the part of Wolfe to make the specified payments? The mere fact that the contract provides that if Wolfe fails to fulfil the contract the amount paid is to be forfeited as liquidated damages is not of much importance. Upon a de fault by Wolfe tbe defendants might declare the contract at an end and retain that portion of the purchase money, but it was at their option whether they would do so or would insist upon the terms of payment specified.\\nIt is undisputed that before the 1st of January the Gills had knowledge of the assignment and notified the assignee that, unless $600 was paid in addition to the $9,000, they would not accept any more money or recognize the contract in any way. On the 3d of January the $900 was taken to defendants' residence in the attempt to tender it, but, suspecting this, they refused to answer the door or to communicate in any way with Mrs. Abel or her husband. Time was not made of the essence of the contract, and a reasonable performance is all that was necessary. Pomeroy, Specific Performance of Contracts (2d ed.) secs. 387, 388: note to Wells v. Smith, 31 Am. Dec. 274 (7 Paige Ch. (N. Y.) 22). We think sufficient tender has been made. There can be no objection raised as in Rice v. Gibbs, 40 Neb. 264, to the mortgage to secure the deferred payments being made by a third party, for two reasons: First, the contract runs to Wolfe, or his assigns; second, the date of the final payment of the note to be secured by the mortgage is long since past, so that the payment of the money with interest must be made before the defendants can be required to convey. Of course, unilateral option contracts for the sale of real estate made upon a sufficient consideration will be enforced in equity if there is no good reason for refusing the relief, and it is really immaterial as to the defendants' duty to perform whether the contract was mutual or unilateral. But this is not the reason for our decision, as we prefer to place it upon the reasons stated. Even if the contract were unilateral at first, as held by the district court, its conditions became absolute and mutual as soon as its terms were accepted. Johnston v. Trippe, 33 Fed. 530. A case the converse of this in some respects is Lenman v. Jones, 222 U. S. 51, where it was held the vendor was not relieved from a contract to sell because he thought it was an option.\\nThe following opinion on motion for rehearing was filed May 29, 1914.\\nApparently Mrs. Abel and her representatives have acted in entire good faith in the matter, even to the extent of offering to submit to the demands of defendants made at the time they first repudiated the contract, in order to avoid this litigation.\\nUnder the findings of fact made by the district court, we are of opinion that Mrs. Abel was entitled to specific performance and that her legal representatives, whether by will or descent as the case may be, are equally so entitled, upon compliance with the terms of the contract.\\nThe judgment of the district court is therefore reversed and the cause remanded, with directions to grant the relief prayed.\\nReversed.\\nBarnes, Rose and Sedgwick, JJ., not sitting.\"}"
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+"{\"id\": \"4460340\", \"name\": \"State Bank of Nebraska, appellee, v. Seward County, appellant\", \"name_abbreviation\": \"State Bank v. Seward County\", \"decision_date\": \"1914-04-03\", \"docket_number\": \"No. 18,448\", \"first_page\": \"665\", \"last_page\": 672, \"citations\": \"95 Neb. 665\", \"volume\": \"95\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T20:48:49.933642+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fawcett, J., not sitting.\", \"parties\": \"State Bank of Nebraska, appellee, v. Seward County, appellant.\", \"head_matter\": \"State Bank of Nebraska, appellee, v. Seward County, appellant.\\nFiled April 3, 1914.\\nNo. 18,448.\\n1. Taxation: Equalization: Appeal: Issues. On appeal from an order of a board of equalization in the matter of assessment of property for taxation, the cause must be tried on the questions raised by the complaint before that tribunal. Nebrasha Telephone Co. v. Hall County, 75 Neb. 405.\\n2. -: -: -: -. In making up the issue for the trial of such an appeal, the district court, on motion, should strike from the pleadings all new matters not put in issue before the board of equalization.\\n3. -: Assessment: Capital Stock oe Banks. The law requires the assessor to determine and settle the true value of the capital stock of every bank or banking association, loan and trust or investment company. For that purpose he should require a complete statement of the proper officer under oath, showing the number of shares of the capital stock and the value of such shares. He should also examine the last report made to the authorities by such institution pursuant to law. If he has reason to believe that these statements and reports fail in any respect to show the actual value of the assets, he should examine the officers of the bank, association, or company, under oath, in determining and fixing the true value of such stock. If the stock has a market value, he must consider that, and he must also consider the surplus and undivided profits. But he is not concluded by his consideration of the foregoing items, for he must find the true value of all the assets for himself.\\n4. -: -: . All property and assets and everything of value are included in the true value of the stock, and as against such true value the dona fide mortgages on real estate on which the mortgagors have paid or agreed to- pay the taxes must be deducted, and the remainder assessed as capital stock. First Trust Go. v. Lancaster County, 93 Neb. 795.\\n5. -: -: Power to Change. A board of county commissioners sitting as a board of equalization, without notice to the taxpayer, and without complaint that his property was assessed too low, is without jurisdiction to change the assessment as returned by the county assessor.\\nAppeal from the district court for Seward county: Edward E. Good, Judge.\\nAffirmed.\\nEdwin Vail, Grant G. Martin, Attorney General, George W. Ayres and Frank E. Edgerton, for appellant.\\nNorval Bros., J. J. Thomas and H. D. Landis, contra.\", \"word_count\": \"2457\", \"char_count\": \"14311\", \"text\": \"Barnes, J.\\nThis is an appeal from a judgment of the district court for Seward county in the matter of the assessment of the property of the State Bank of Seward, Nebraska, for taxation for the year 1913. It appears that in May of that year the bank, by its cashier, made the following return of its property to the county assessor for taxation:\\n\\\"Name. The State Bank of Nebraska.\\nLocation. Seward, Nebraska. Capital stock .$35,000.00\\nNumber of shares ($100 each) . 350\\nSurplus.............................. 8,000.00\\nUndivided profits . 3,201.85\\nTotal book value....................... 46,201.85\\nor $132.00 per share.\\nMarket value per share, $-.\\nI, Harry D. Landis, cashier of said bank, do solemnly swear that the foregoing statement, Avith list of stockholders attached thereto, is true and correct this 1st day of April, 1913.\\nHarry D. Landis, Cashier.\\nSubscribed in my presence and sworn to before me this -day of-, 191 \\u2014 .\\\"\\nAttached to the schedule was the following entry in substance made by the county assessor:\\nActual A7alue $46,200, assessed value $9,240, penalties $-; board of equalization $-. Attached to and made a part of the schedule of the bank is exhibit A, which is a statement of the deduction claimed by the bank in the form of mortgages on real estate, with the affidavit of the cashier as follows: \\\"Each mortgage was given, executed, and filed after the 1st day of July, 1911, and before the 1st day of April, 1913, as aforesaid; that each of said mortgages is upon Seward county real estate, and the valu\\u00e9 of each and every piece of real estate covered by said mortgages considerably exceeds the value of said bank's mortgage thereon, and that each and every mortgage aforesaid provided that the mortgagor should pay the taxes levied thereon, and contained the following provision, 'and shall pay all taxes and assessments levied upon said real estate, including all taxes and assessments levied upon this mortgage, or the debt secured by this mortgage;' that each and every mortgagor giving and executing said mortgages aforesaid has paid or caused to be paid the taxes on said mortgage according to said agreement in said mortgage contained; that each of said mortgages represent tona -fide loans made by the bank. Affiant further says that, according to the laws of the state of Nebraska, said bank is justly entitled to have said mortgages amounting in the aggregate to the sum of $34,026, considered as an interest in real estate for the purposes of assessment and taxation, and deducted as real estate and tangible property otherwise taxed from the said capital stock of said bank as listed in said return for said bank hereto attached for the year 1913.\\\"\\nThere was a copy of the last report made by the bank attached to the schedule, as requested and required by law. It appears that the assessor found the actual value of the bank stock to be $46,200, which was $1.85 less than the book value thereon returned to the assessor, and fixed the assessed value at $9,240, without making any allowance or deductions whatever on account of the $34,026 of the capital stock of the bank invested in real estate mortgages as listed in said exhibit A.\\nThe bank, on June 11, 1913, filed a written complaint and protest duly verified against the assessment with the county board of equalization, claiming a reduction of the $34,000 loaned on real estate mortgages, as set forth in exhibit A attached to its schedule. On June 12, 1913, the county board of equalization considered the complaint and protest of the bank, and caused to be made the following record: \\\"The protest and complaint of the State Bank of Nebraska of Seward, Nebraska, was read, asking for a deduction from the assessment as made by the county assessor. Moved and carried that the assessment as made by the county assessor on the State Bank of Nebraska remain as it is.\\\" Thereupon the bank duly prosecuted an appeal to the district court, where it filed its petition asking the court to reverse the order of the county board of equalization, and allow the exemption claimed in exhibit* A attached to its schedule. The county filed a motion to require the bank to make its petition more definite and certain, and a motion to dismiss the appeal, both of which Avere overruled by the court, and the county excepted. Thereupon the county filed an answer, in substance, as follows: Comes now the appellee and, for answer to the petition of the appellant herein filed, denies each and every allegation therein contained not hereinafter admitted, controverted, or modified; admits that appellant made a return to the county assessor, and alleges that said return is truly set out in the transcript in this case; admits that plaintiff filed a complaint with the county board of equalization at the time and in the manner and form set out in the transcript; and that on the 12th day of June, 1913, the board entered an order, as set out in the transcript, which is the order above referred to.\\nAppellant admits the allegation of paragraph 6 of the petition. Then followed certain allegations to the effect that the amount fixed by the county board of equalization and assessment as the aggregate value of the bank stock for the purposes of taxation for the year 1913 is no larger or greater sum than the actual real or true value of said stock after deducting said actual real and true value of the aggregate amount of said mortgages. Other allegations were contained in the answer touching the real value of the property of the bank, and it was alleged that the appellant was not entitled to have its assessments as fixed by the board at the sum of $46,200 reduced by the deductions therefrom of the amount of said mortgages for the reason that without such deduction the value of the stock for the purposes of taxation for the year 1913 was no more or greater than the fair, reasonable and just value of said property for the purposes of taxation and assessment.\\nThe bank filed a motion to strike from the answer all the remaining portion thereof following the admission of the allegations of paragraph 6, because the same was redundant, irrelevant and immaterial, and tendered an issue not raised before the board of equalization. The motion was sustained, and the county excepted to the ruling. Thereupon a trial was had to the court upon the pleadings. The testimony of T. C. Beck, the county assessor, was taken, and he testified that he had made the assessment of the bank, and in so doing made no deduction whatever on account of real estate mortgages owned and held by the bank. This was all the evidence that was introduced, and thereupon the court found the issues in favor of the bank; that it was entitled to have deducted from $46,200 the value of its capital stock for the purposes of assessment for the year 1913 the sum of $34,026, the aggregate amount of real estate mortgages owned and held by the bank. From this judgment the county has brought the case here by appeal.\\nIt is contended by the appellant that the court erred in overruling the motion to require the bank to make its petition more definite and certain by setting out the true value of the shares of its capital stock, the market value thereof, the average amount of its loans and discounts during the fiscal year, also other resources of earnings, and the net amount of its actual earnings during the last fiscal year. This was an attempt to require the district court to revalue and reassess the property of the bank for taxation. The court had no authority to do this. The proper place to procure a revaluation and reassessment of the property was before the board of equalization. The county authorities having neglected to require such a statement when the matter was being considered by the board, there was no authority to require such a statement on the appeal to the district court.\\nIt is further contended that the court erred in refusing to dismiss the appeal for want of jurisdiction. The complaint filed before the board gave that tribunal jurisdiction to determine the matter of the deduction of the amount of the mortgages owned by the bank from the value of its capital stock. The board took jurisdiction of the complaint, and made its order, from which the bank appealed. This gave the district court jurisdiction, and the motion to dismiss the appeal was properly overruled.\\nIt is also contended that the court erred in sustaining the motion of the bank to strike from the answer the allegations relating to matters not in issue before the board of equalization and assessment. Section 6440, Rev. St-1913, which provides for appeals to the district court from the action of the county board of equalization, reads as follows: \\\"The court shall hear the appeal as in equity and without a jury, and determine anew all questions raised before the board which relate to the liability of the property to assessment, or the amount thereof.\\\" This section was considered by this court in Nebraska Telephone Co. v. Hall County, 75 Neb. 405, where it was held: \\\"On appeal from an order of a board of equalization in the matter of the assessment of property for taxation, the cause must be tried on the questions raised by the complaint before that tribunal.\\\" To the same effect are First Nat. Bank n. Webster, 77 Neb. 813, and Reimers v. Merrick County, 82 Neb. 639.\\nIn the case at bar the assessor had returned the schedule of the bank to the county board, with his valuation and assessment fixed thereon. By his return he had refused to deduct the mortgages owned by the bank as returned by its affidavit attached to the schedule. The bank thereupon filed its complaint asking the county board of equalization and assessment to malee the proper deduction. That was the only matter presented to the board for determination. According to the record, that was the only matter passed upon by the board when it made its order refusing to grant the request made by the bank, and, under the rule announced in the foregoing cases, that was the only matter that could be considered by the district court. It follows that the motion to strike the allegations from the answer was properly sustained.\\nThis brings us to the consideration of the main question presented by this appeal. Under section 6351,- Rev. St. 191.3, mortgages on real estate for the purpose of taxation should be deducted from the capital stock of banks and trust companies, and the remainder assessed as capital stock. First Trust Co. v. Lancaster County, 93 Neb. 795. The facts are practically the same in both cases, and the opinion in that case clearly settles the question involved on this appeal in favor of the bank. It may be possible that the bank is, to some extent, escaping taxation; but the court, under the circumstances, cannot grant the county any relief. If it was believed by the assessor, or the county au tborities, that the assessment was inequitable and unjust, the board of equalization should have given the bank notice of the fact that it would proceed -to reassess its property. This was not done, and without such notice the board could not raise the assessment, but was bound by the schedule returned by the assessor. When the assessment was returned, the case of the First Trust Co. v. Lancaster County, supra, had not been decided,, and it is quite apparent that the taxing authorities of Seward county assumed that the real estate mortgages of the bank could not be deducted from the amount of its capital stock, and hence no effort was made to reassess the property of the bank.\\nAs we view the record, there was nothing for the court to do but to render a judgment in favor of the bank, deducting the amount of its real estate mortgages from the value of its capital stock, and the judgment of the district court is therefore\\nAffirmed.\\nFawcett, J., not sitting.\"}"
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+"{\"id\": \"4474673\", \"name\": \"Robert S. King, appellant, v. W. W. Day, appellee\", \"name_abbreviation\": \"King v. Day\", \"decision_date\": \"1917-05-19\", \"docket_number\": \"No. 19006\", \"first_page\": \"346\", \"last_page\": 349, \"citations\": \"101 Neb. 346\", \"volume\": \"101\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:33:29.881645+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hamer, J., dissents.\", \"parties\": \"Robert S. King, appellant, v. W. W. Day, appellee.\", \"head_matter\": \"Robert S. King, appellant, v. W. W. Day, appellee.\\nFiled May 19, 1917.\\nNo. 19006.\\nTrial: Verdict: \\u2022Conformity. Evidence examined, and held that the verdict does not respond to the evidence or the law as given in the court\\u2019s instructions.\\nAppeal from the district court for Lancaster county: P. James Cosgrave, Judge.\\nReversed.\\nBurkett, Wilson & Brown, for appellant.\\nStrode \\u00e9 Beghtol, contra.\", \"word_count\": \"1147\", \"char_count\": \"6886\", \"text\": \"Cornish, J.\\nUnder a contract entered into January 17, 1913, plaintiff purchased of defendant all the stock in the State Oil Company, agreeing to pay therefor $18,500, the business being transferred to' plaintiff on the afternoon of January 29, 1913. By the terms of the sale defendant guaranteed that the value of the goods, wares and merchandise was $6,797.37; that the company owned 1,650 steel barrels; that the bills payable did not exceed $21,950.75, defendant agreeing to pay all bills in excess thereof; that the accounts receivable amounted to $12,288.24 and would be paid within three months. The value of the good will was fixed at $2,500. Alleging that defendant, \\\"for the purpose of inducing the plaintiff to make said purchase and to enter into said contract, falsely and fraudulently and for the-purpose of deceiving the plaintiff\\\", misrepresented the net value of the assets, plaintiff brought this action to recover $17,943.60, it being alleged that the company was insolvent at the time plaintiff purchased the stock. There was a verdict for plaintiff for $1,941.90, and from the judgment thereon plaintiff appeals.\\nThe controlling question on appeal- is plaintiff's contention that his motion for a new trial should have been sustained, the proof conclusively - showing that the verdict should have been returned for a greater sum than $1,941.90, to wit, $15,486 '28.\\nOp appeal plaintiff classifies his' elements of recovery as follows: for unpaid accounts receivable, $4,732.96; for excess accounts payable, not listed by defendant, $4,409.10; for shortage in inventory, $950.05; for goods on consignment, $1,194.44; for shortage in barrels, $1,698.73; and for good will $2,500.\\nWithout considering these claims in detail, it is apparent that the verdict is not in harmony Avith the evidence. In the list of accounts receivable, items aggregating about $600 Avere listed twice by defendant. In the list of accounts payable, there Avas a mistake of $767.25, a debt of $775 being listed as $7.75. Taxes not listed by defendant amounted to $139.17. The largest claim under the classification of excess accounts payable relates to tAvo cars of gasoline and one c\\u00e1r of oil from the Chanute Eefining Company, which, with freight charges and inspection fees, amounted to $2,544.86. There is considerable testimony about three cars on the switch track at the State Oil Company at the time the inventory Avas taken, January 29, 1913, and it seems to be proved that these cars were not inventoried. \\u2022 The three cars for which plaintiff is seeking to recover are cars unload\\u00e9d while defendant was in charge of the company. The car of oil Avas shipped under an invoice dated January. 10, 1913, for $324.16; one car of gas under an invoice dated January 3, 1913, for $910.13; the other car under an invoice dated January 13, 19\\u00cd3, for $100.83. The first two cars were paid for by plaintiff February 10, and the third car February 13. The records of the railroad company show that. these cars were unloaded January 9, 18, and 20 \\u2014 some time before plaintiff and defendant took the inventory of the merchandise on hand. Defendant contends, however, that plaintiff has not shown that these cars Avere not included in the accounts payable, listed by defendant. The books kept by the State Oil Company while defendant ' Avas in charge shoAV that the amounts due for these three. cars were not listed by him in the accounts payable. The first item which he listed under the account of the Chanute Refining Company was for oil and gas purchased December 16 and 18, $1,251.80. Other records of the company' show that this was for a car of oil, $300.05, purchased December 16, and $951.75 for a car of gasoline purchased December 18. The second item listed by defendant was a note dated January 6, 1913, and due February 6, $2,748.-32. It is shown by other records of the company that this note covered oil and gas purchased from December 2 to 10. The third item listed wTas a. note due January 27, 1913, for $3,000, but other records show that this note was given for oil and gas purchased in November.\\nA consideration of the other items claimed by plaintiff: is unnecessary to show that the verdict is not in harmony with the conceded facts or facts which are conclusively proved. Making proper allowance for additional credits to which defendant was entitled, the verdict is less than half the amount shown to be due plaintiff on the claims considered above.\\nThe petition contains allegations pertinent to an action for breach of warranty and to an action for deceit. Defendant's motion to require plaintiff to separately state and number his causes of action was not sustained. At the close of plaintiff's testimony defendant's motion to require plaintiff to elect upon which cause of action he would rely was also overruled. The jury were given instructions applicable to both theories of recovery. The commingling of the two causes of action, together with the lack of order in presenting evidence on the different claims presented, no doubt was confusing to the jury, and has made it difficult to review the evidence on appeal. In any event, the verdict does not respond to the instructions and evidence. The trial court instructed: \\\"If the jury shall find from the evidence- that the plaintiff is entitled to recover against the defendant, you are instructed that the measure of damages on the amount the plaintiff is entitled to recover is the amount of loss that the plain tiff has suffered in tbe depreciation of the value of the stock he purchased by reason of the failure of any of the representations or guarantees of the defendant; and the jury are instructed that to determine this amount you will determine the diminution of the assets due to the defendant's failure to make his representations and warranties good.\\\"\\nOn the second trial plaintiff should separately state and number his causes of action, and should be required to elect which cause of action he will present to the jury. In making the proof, and in the cross-examination as well, so far as possible a definite order of- procedure should be adhered to, in order that the jury may not be unduly confused in considering the various items presented. With these suggestions in mind, a jury on a second trial will probably arrive at a verdict responding to the evidence and the law.\\nThe judgment of the district court is therefore reversed and the cause remanded for further proceedings.\\nReversed.\\nHamer, J., dissents.\"}"
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+"{\"id\": \"4481230\", \"name\": \"Susan L. Sippel, Administratrix, appellee, v. Missouri Pacific Railway Company, appellant\", \"name_abbreviation\": \"Sippel v. Missouri Pacific Railway Co.\", \"decision_date\": \"1918-06-15\", \"docket_number\": \"No. 20099\", \"first_page\": \"597\", \"last_page\": 602, \"citations\": \"102 Neb. 597\", \"volume\": \"102\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:07:03.729771+00:00\", \"provenance\": \"CAP\", \"judges\": \"Rose, J., not sitting.\", \"parties\": \"Susan L. Sippel, Administratrix, appellee, v. Missouri Pacific Railway Company, appellant.\", \"head_matter\": \"Susan L. Sippel, Administratrix, appellee, v. Missouri Pacific Railway Company, appellant.\\nFiled June 15, 1918.\\nNo. 20099.\\n1. Trial: Direction of Verdict. Although there is substantial evidence tending to establish each fact necessary to a recovery, so that in the absence of any conflicting evidence a .verdict for the plaintiff must be allowed to.stand, still there may be such evidence in the record that no reasonable mind could believe that the facts existed as alleged, and in such case the court should so direct the jury.\\n2. Negligence: Presumption. When there is no evidence as to negligence on the part of the person injured, the presumption of due care that arises from the instinct of self-preservation generally obtains.\\n3. ' Railroads: Negligence: Question for Jury. Whether it is negligence to push cars before an engine without placing a guard on the foremost car to signal those in control of the train if any person is in danger, and to warn such person, depends upon the circumstances and conditions surrounding the operation of the train. It may be negligence per se. In most cases, it will be a question of fact for the jury.\\n4. Negligence: Burden of Proof. In an action to recover damages caused by alleged negligence, plaintiff must prove both negligence of defendant and that such' negligence was the proximate cause of the injury complained of.\\n5. Railroads: Injury to Pedestrian: Sufficiency of Evidence. The evidence in this case, indicated in the opinion, will not support a finding that negligence of the defendant was the proximate cause of the injury complained of.\\nAppeal from the district court for Lancaster county: Frederick E. Shepherd, Judge.\\nReversed.\\nE. J. White, G. L. DeLacy, J. A. G. Kennedy and M, V. Beghtol, for appellant.\\nBerge \\u00e9 McCarty, contra.\", \"word_count\": \"2073\", \"char_count\": \"11495\", \"text\": \"Sedgwick, J.\\nThe body of Charles Sippel was found on the tracks of defendant over a bridge in the defendant's yards. He liad evidently been run over and killed by one of defendant's trains. The administratrix of bis estate brought this action in the .district court for Lancaster county to recover damages, alleging that his death was caused by the negligence of the defendant. The trial resulted in verdict and judgment for the plaintiff, and the defendant has appealed.\\nThere is no complaint of the'manner of the trial, nor of the rulings of the trial court, except in refusing to direct a verdict for the defendant on the ground of a failure of evidence. The plaintiff in the brief assumes that, \\\"if there is any evidence to support the verdict, if there is any evidence to support a finding in favor of plaintiff on the various elements of the case, then the judgment of the lower court should be affirmed.\\\" This is' hot an accurate statement of the law. It is for the jury to determine the preponderance of the evidence. If there is a substantial conflict and reasonable minds might differ as to the existence of facts nec\\u00e9ssary to entitle the plaintiff to recover, it is for th\\u00e9 jury to determine those facts, and not for the court. The verdict of a jury will not be disturbed unless it is clearly wrong. If there is substantial evidence tending to establish each fact necessary to a recovery, so that in the absence of any conflicting- evidence a verdict for the plaintiff must be allowed to stand, still there may be such evidence in the record that no reasonable mind could believe that the facts existed as alleged, and in such case the court should so direct the jury.\\nIt is conceded that the evidence shows that the defendant's train, by which decedent was killed, was operating in the switching yards of the defendant at Nebraska City; that an engine in charge of an engineer and fireman was pushing one car before it to the north over what is called the high bridge, and drawing five or six freight cars after it, moving at a slow speed, perhaps three or five miles an hour. At the approach to this bridge the defendant had posted a sign, which read.: \\\"Danger \\u2014 Trespassing on this bridge is forbidden.\\\" There is evidence that, notwithstanding the danger to foot-passengers crossing over this bridge, and the-warning of the defendant, some people did walk over the bridge from time to time in preference to using the main traveled road, or what is called the lower bridge, which is less dangerous. The plaintiff insists that the bridge was \\\"commonly used by. pedestrians,\\\" and that the deceased was a licensee on the bridge. The evidence is very voluminous upon this question and is somewhat conflicting, and we assume that it was a question for the jury as to whether the conditions were such that the defendant was required to use reasonable care to avoid injuring the deceased. We regard that question as determined in favor of the plaintiff. No one saw the accident, and there is no evidence as to how it happened. Where there is no evidence as to negligence on the part of the person injured, the presumption of due care that arises' from the instinct of self-preservation generally obtains. The evidence as to the character of the deceased and his conduct just prior to the accident as tending to rebut this presumption is so conflicting that we assume that the question of due care on his part was for the jury to determine and has been resolved in favor of the plaintiff. The question of difficulty in this case is whether there is substantial evidence of negligence on the part of the defendant which was the proximate cause of the accident. The negligence alleged, and apparently the only negligence of the defendant relied upon in the briefs, is thus stated: \\\"It is negligence to back train without lookout on end to give warning to pedestrians.\\\"\\nIf several cars are being pushed through a street frequented by people, and no one in control of the train is so situated as to know whether the track is clear or to give warning, and avoid injuring those who may be exposed to danger from the approach of the train, it is negligence per se to fail to station a lookout who can give such warning. In a case of that kind the court said: \\\"There could be no doubt that the evidence was am ply sufficient to justify the court in refusing, at the instance of the defendant, to instruct the jury to find for it.\\\" Chicago & A. R. Co. v. Wilson, 225 Ill. 50.\\nOn the other hand, if a train is being moved over a bridge, where it is manifestly dangerous for people to walk, and proper signs are placed so as to warn people of the danger of trespassing thereon, and only active persons who court danger attempt to cross the bridge, it would not be expected that a lookout would be stationed to prevent accidents. \\\"Whether it is negligence or not for the servants of a railroad company to run an engine backwards, or push cars ahead of an engine, without stationing some one on the tender, or foremost car, to signal its approach to a person who may be on the track, is a question which is controlled by the circumstances under which the engine or train is operated. Under some circumstances, the act has been held to be negligence as a matter of law; but in most cases it has been held to be a question of fact to be submitted to the jury. \\\" Southern R. Co. v. Daves, 108 Va. 378.\\nIs there such substantial conflict in the evidence as to the facts upon which the charge of negligence depends as to make it a question for the jury, and, if so, was such negligence the proximate cause of the injury? There was only one car being pushed by the engine; the others followed the engine. The engineer and firemen both testified that the car was no obstruction to their view of the tracks; that they could, and continually did, see the tracks before them, and that there was no one upon the tracks. This evidence was not contradicted. No one testified that the deceased was upon the tracks' as the train approached the bridge. He was evidently injured as the train approached the bridge from the south. He was a night watchman, accustomed to sleep from about' 6:30 o 'clock in the morning, and, as testified by his wife, \\\"would get up about 10 o'clock and eat, and then he would talk a while, and he would retire again and get up about four, He came home, and I had break fast on the table, and I asked him if lie would eat, and he said 'No, because I will get up about 10 o'clock,' and he retired, and about 8 o 'clock I went up, and in a few minutes he got up and dressed and came down, and I said to him, 'Well, why, what did you get up so early for?' And he-said, 'Well, I want to go to the waterworks.' And I said, 'What are .you going there for?' He said, 'I have been over there, you know, several times.' Well, he said he wanted to go to the waterworks, and that night was his pay night, he got his pay in the. evening, .and he says, 'I want to go over to the water-works because I have been promised a position there, I am tired.' Well, he dressed, and then I asked him if he would eat something before he went, and he ate some cakes, and he said, 'When I come back,' and he went, And he said, 'I will take those (some decayed potatoes) with me and throw them in the river.' # I had large washings, and I couldn't do it alone without help, and draw the water, and he said, 'I will be right back, I will go to the water-works and come right back. Now, whatever you do, don't start to draw that water until I come,' and I said, 'All right.' And that was the last ever seen of him. ' '\\nHe had not taken his usual sleep; he was \\\"tired.\\\" No one knows how long he had been on the bridge. He may have been some time on or about the bridge. It is more probable that he was loitering somewhere about.the bridge than that he was passing over the bridge in an ordinary manner on his way to town. The uncontradicted evidence of the engineer and fireman that he was not upon, the tracks as the train approached the bridge disposes of that question. No witness -saw him approach the river, nor while he was throwing his refuse therein. If he climbed upon, the bridge after- having disposed of his refuse, or if he stopped at the entrance of the bridge to- throw' his refuse in the river, there is no- evidence that he could be observed by a lookout on the car-' immediately before the engine, and there is positive evidence that he was not on the track where he could be seen from the approaching train. Under these circumstances, it cannot be said that there is substantial evidence that any negligence of the defendant was the proximate cause of his injury.\\nIf. it had been shown that the deceased was upon the tracks when the cars were approaching the bridge, there might be room for the last clear chance doctrine, if it could be found that .the engineer or fireman knew or ought to have known that he was in danger. In any view of the case, there is a total failure of evidence that anything that this defendant did, or failed to do, was the proximate cause- of his injury, so as to create a liability for damages.\\nThe judgment of the district.court is reversed and the cause remanded.\\nReversed.\\nRose, J., not sitting.\"}"
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+"{\"id\": \"4510935\", \"name\": \"Daniel H. Burton, appellee, v. Lincoln Traction Company, appellant\", \"name_abbreviation\": \"Burton v. Lincoln Traction Co.\", \"decision_date\": \"1921-07-07\", \"docket_number\": \"No. 21701\", \"first_page\": \"521\", \"last_page\": 525, \"citations\": \"106 Neb. 521\", \"volume\": \"106\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:55:28.124256+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C.J., Flansburg and Rose, JJ., Dickson and Troup, District Judges.\", \"parties\": \"Daniel H. Burton, appellee, v. Lincoln Traction Company, appellant.\", \"head_matter\": \"Daniel H. Burton, appellee, v. Lincoln Traction Company, appellant.\\nFiled July 7, 1921.\\nNo. 21701.\\n1. Negligence: Question fob Juby. \\u201cIssues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established.\\u201d City of Omaha v. Houlihan, 72 Neb. 326.\\n2. -: -. Evidence in the case at bar examined, and held, the same required the application of the rule above quoted.\\nAppeal from the district court for Lancaster county: Willard E. Stewart, Judge.\\nAffirmed.\\nHall, Baird & Williams, for appellant.\\nH. N. Mattley, contra.\\nHeard before Morrissey, C.J., Flansburg and Rose, JJ., Dickson and Troup, District Judges.\", \"word_count\": \"1527\", \"char_count\": \"8796\", \"text\": \"Troup, District Judge.\\nThe plaintiff, Daniel IT. Burton, brings this action against the defendant, Lincoln Traction Company, to recover damages for personal injuries to himself alleged to have been sustained through the negligence of the defendant company by a collision of one of the defendant's street cars with plaintiff's team and wagon at the intersection of Twenty-seventh and W streets in the city of Lincoln.\\nThe negligence'charged against the defendant is that, just before and at the time the accident happened, it was running its car at an. unreason a ble and reckless rate of speed, and that it w\\u00e1s negligent in the operation of said car in that it failed to keep the same under proper control as it approached the intersection where the accident occurred, and although the plaintiff, before and at the time he entered upon said intersection, was in plain view of the defendant's motorman operating said car, he negligently failed to reduce its speed or give plaintiff timely warning of the approach of said car, thus colliding with plaintiff's wagon and injuring the plaintiff.\\nThe defendant, answering, denies the averments of negligence attributed to the defendant, and alleges that the injuries received by the plaintiff were due to the negligence of the plaintiff in attempting to cross the defendant's track in front of the defendant's moving car under such circumstances that it was impossible for the operator of said car to avoid the accident.\\nThe reply of plaintiff denies the allegations of the answer attributing negligence to the plaintiff. A trial of the case before court and jury resulted in a verdict and judgment for plaintiff, from which defendant appeals.\\nThe defendant having made a motion for a directed verdict at the close of plaintiff's evidence, and renewing the same at the close of all of the evidence, and making a like complaint on its motion for a new trial, which motions were all overruled, now submits three assignments of error, but all of the same import, which may be summed up in the single statement: \\\"That the testimony in the case established the gross negligence of the plaintiff and failed to establish any negligence on the part of the defendant.\\\" It seems to be agreed by both the plaintiff and the defendant, in which agreement this court-con curs, that the above proposition, in turn, resolves itself into the question whether upon the whole case the evidence was such as required, its submission to the jury, or should/a verdict have been directed for the defendant.\\nIt is in evidence that when plaintiff drove his team and wagon across the defendant's track about 100 yards south of the intersection where the accident happened, for the purpose of driving north on the right-hand side of the street, he looked both north and south and saw no car at all to the south and was certain there was none nearer than Vine street, 100 yards away. He then drove north on Twenty-seventh street parallel with defendant's track at the rate of about 4 or 5 miles an hour for the distance of about 150 feet, which took him to the intersection of Twenty-seventh and W streets, where the accident occurred. It is admitted by the plaintiff that he did not again look south for an approaching street car before venturing to cross defendant's track at the W street intersection. This fact alone, however, is not necessarily conclusive evidence of negligence. It depends much upon what consideration should be given to the fact that the plaintiff had looked for street cars to the south a moment or two before and saw none. In the case of Fairbanks v. Bangor, O. O. R. Co., 95 Me. 78, it is said: \\\"There is no absolute rule of law that a person riding along a street must look and listen for an approaching car before entering upon the track of an electric railway. Whether his failure to look and listen amounts to negligence must be determined from all the facts and circumstances proved.\\\" See, also, Robbins v. Springfield Street R. Co., 165 Mass. 30; Watson v. Boone Electric Co., 163 Ia. 316; Callett v. Ventral- California Traction Co., 36 Cal. App. 240; Wallenburg v. Missouri P. R. Co., 86 Neb. 642.\\nBut, even assuming that the act of the plaintiff in attempting to cross the intersection under the circumstances he did was negligence on his part, neither would this Tact alone necessarily bar plaintiff's right to recover. The plaintiff's right to recover would still depend upon the conduct of the defendant and the manner in which it operated its car in approaching the intersection while plaintiff was in the act of making the crossing, and whether the defendant was negligent or not in the opera tion of its car at this point, under all the facts and circumstances disclosed by the evidence. \\\"Negligence of plaintiff in driving across a street railway track without stopping to look and listen will not excuse the company from its duty to use reasonable diligence to stop its car after discovering the perilous situation, and if its failure to do so, after seeing the danger, directly and immediately causes an injury to him, the company may be held liable for such injury.\\\" Omaha Street R. Co. v. Larson, 70 Neb. 591. See, also, McKennan v. Omaha & C. B. Street R. Co., 97 Neb. 281. This was the rule of law even when any act of contributory negligence of the plaintiff would bar recovery. Harris v. Lincoln Traction Co., 78 Neb. 681. A double reason exists for the recognition of the rule at this time, in view of the comparative negligence statute. Rev. St. 1913, sec. 7892.\\nThe motorman in charge of the operation of defendant's car testified that he first suav the plaintiff Avhen he came out of the lumber yai'd with his team and Avagon and crossed the street to the right-hand side thereof and proceeded nortlnvard at the time the defendant's car Avas crossing Vine street, 450 feet to the south, and that he had the plaintiff in plain view from that time until the collision at or near the intersection of W street; that he Avas running from 8 to 10 miles an hour and could stop his car, when running at that rate of speed, within 25 or 30 feet; that Avhen within about 35 feet of the plaintiff he sounded the gong, and that when it became apparent that plaintiff Avas attempting to cross the track the car Avas between 20 and 25 feet aAvay from plaintiff's wagon, \\\"then I applied the air, that is all there is to it;\\\" that the defen,dant's car then hit the wagon, but not hard enough to jolt it much, and the car stopped exactly where the wagon was hit.\\nThe plaintiff testified that he Avas upon the crossing Avhen he first saw defendant's car; that his attention was first attracted to it by the ringing of the bell, and which seemed to him at that time was about 50 or 60 feet away, but that it was upon him in an instant; that the car hit his wagon two times, and that it ivas the second time that caused him to be thrown from the wagon and injured.\\nOther witnesses also testified to different versions as to how the accident happened, but we think enough has been stated to show that there was such a conflict in the evidence upon material issues as to require a submission of the case to the jury. \\\"Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established.\\\" City of Omaha v. Houlihan, 72 Neb. 326. See, also, Kafka v. Union Stock Yards Co., 87 Neb. 331.\\nWe think the conflict in the evidence in the case at bar required the application of the rule above quoted. The trial court submitted all the issues concerning which there was a conflict of testimony to the jury by appropriate instructions, to which no complaint is made. We think the court did not err in so doing, and the judgment below is, therefore,\\nAffirmed. '\"}"
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+"{\"id\": \"4522136\", \"name\": \"Girard H. Way, appellee, v. Georgia Casualty Company, appellant\", \"name_abbreviation\": \"Way v. Georgia Casualty Co.\", \"decision_date\": \"1922-01-26\", \"docket_number\": \"No. 22442\", \"first_page\": \"508\", \"last_page\": 509, \"citations\": \"107 Neb. 508\", \"volume\": \"107\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:22:14.793757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Letton, Rose, Dean, Aldrich, Day and Flansburg, JJ.\", \"parties\": \"Girard H. Way, appellee, v. Georgia Casualty Company, appellant.\", \"head_matter\": \"Girard H. Way, appellee, v. Georgia Casualty Company, appellant.\\nFiled January 26, 1922.\\nNo. 22442.\\nAppeal: Findings: Review. Findings of the district court in determining issues of fact in proceedings under the workmen\\u2019s compensation law will not he disturbed on appeal unless clearly wrong.\\nAppeal from the district court for Lancaster county: Willard E. Stewart, Judge.\\nAffirmed.\\nBrogan, Ellich & Raymond and Gasper Y. Offutt, for appellant.\\nE. E. Mattley, contra.\\nHeard before Morrissey, C. J., Letton, Rose, Dean, Aldrich, Day and Flansburg, JJ.\", \"word_count\": \"374\", \"char_count\": \"2248\", \"text\": \"Rose, J.\\nThis is a proceeding under the workmen's compensation law. In a motorcycle accident plaintiff broke his right arm and his right leg and fractured his skull March 3, 1921. He claims he was at the time engaged in the service of his father, C. F. Way, in the capacity of an employee of the Elm Park Grocery, in Lincoln, at $25 a week. Defendant is charged with liability as an insurer. The claim was presented to the compensation commissioner and rejected. Plaintiff appealed to the district court, where he was awarded $645, including $200 for hospital expenses. He was also allowed $10 a week for 11 weeks. From this judgment defendant has appealed.\\nTwo questions are presented by the appeal: The first is that the evidence is wholly insufficient to sustain a finding that plaintiff Avas an employee of his father Avithin the meaning of the Avorkmen's compensation laiv; the view of defendant being that plaintiff and his father were partners in the grocery business. The second point is that the evidence fails to show the injuries arose out of and in the course of the employment of plaintiff, who, as contended by defendant, Avas not on duty at the time of the accident. These propositions were clearly presented in the brief of defendant and were ably argued at the bar, but it is nevertheless the unanimous opinion that there is a reasonable view of the evidence in which it sustains the findings of the trial court on both issues of fact. The appeal, therefore, is controlled by the familiar rule that findings of the district court in determining issues of fact in proceedings under the Avorkmen's compensation Iuav will not be disturbed on appeal unless clearly wrong.\\n\\u2022 Affirmed.\"}"
\ No newline at end of file
diff --git a/neb/4529223.json b/neb/4529223.json
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+"{\"id\": \"4529223\", \"name\": \"Roy E. Fisher et al., appellants, v. Board of Regents of the University of Nebraska, appellee\", \"name_abbreviation\": \"Fisher v. Board of Regents of the University\", \"decision_date\": \"1922-06-12\", \"docket_number\": \"No. 21769\", \"first_page\": \"666\", \"last_page\": 673, \"citations\": \"108 Neb. 666\", \"volume\": \"108\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:51:49.411105+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Day, Dean, Flansburg and Rose, JJ.\", \"parties\": \"Roy E. Fisher et al., appellants, v. Board of Regents of the University of Nebraska, appellee.\", \"head_matter\": \"Roy E. Fisher et al., appellants, v. Board of Regents of the University of Nebraska, appellee.\\nFiled June 12, 1922.\\nNo. 21769.\\n1. Constitutional Law: Hog-Cholera Serum Act. The legislative act requiring the board of regents of the University of Nebraska to establish and operate a plant for the manufacture of hog-cholera serum and to distribute the product to farmers and swine- growers at the actual cost of production is not void as class or special legislation inhibited by the state or federal Constitution. Laws 1911, ch. 139.\\n2. -: \\u2014-\\u25a0: Incidental Benefits to Individuals. Incidental or unavoidable benefits to an individual or a class do not necessarily invalidate legislation enacted in the exercise of the police power for the benefit of the public.\\n3. -: -: Classification. The classification \\u201cfarmers and swine-growers\\u201d is not unreasonable for the purposes of legislation to protect the food supply of pork by manufacturing and distributing hog-cholera serum at a state institution.\\n4. Taxation: Objects. The raising of public funds to protect the food supply of pork by manufacturing and distributing hog-cholera serum at a state institution is within the taxing power of the state.\\n5. Animals: Protection Against Diseases. In the exercise of police power the state may create agencies and provide means for scientific research on behalf of the public in an effort to aid in the production and preservation of food, and to that end may make experiments and manufacture and distribute remedies for the purpose of eradicating diseases among domestic animals.\\n6. -: -. The exercise of,police power to prevent the destruction of animal food at the source of supply does not necessarily await commercial enterprise or initiative prompted by pecuniary gain.\\n7. Constitutional Law: Statutes: Annulment. If an unrepealed act of the legislature was valid when passed, the burden is on a person who pleads its unconstitutionality under subsequent conditions to prove the facts showing the process of annulment.\\n8. -: University: Extension of Activities. The Constitution of 1875, by adopting the University of Nebraska as a state institution under a charter declaring a purpose \\u201cto afford to the inhabitants of this state the means of acquiring a thorough knowledge of the various branches of literature, science and the arts,\\u201d and by vesting its general government in a board of regents under the direction of the legislature, did not prohibit the latter from imposing new and additional duties on the regents or from requiring them to establish and conduct a plant for the manufacture and distribution of hog-cholera serum.\\nAppeal from tlie district court for Lancaster county: Frederick E. Shepherd, Judge.\\nAffirmed.\\nT. F. A. Williams, Clark Jeary and Cosgrove & Campbell, for appellants.\\nClarence A. Davis, Attorney General, and Peterson & Dc-voe, contra.\\nHeard before Morrissey, C. J., Day, Dean, Flansburg and Rose, JJ.\", \"word_count\": \"2363\", \"char_count\": \"14804\", \"text\": \"Rose, J.\\nThis is a suit for an injunction to prevent the board of regents of the University of Nebraska, defendant, from manufacturing, buying or selling hog-cholera serum and from expending public money for those purposes. Plaintiff is a resident taxpayer of Lancaster county, Nebraska, and is engaged in buying, selling and raising hogs. Defendant is operating a hog-cholera serum plant at the state agricultural college under authority of a legislative act declaring:\\n\\\"Section 1. There shall be established by the board of regents of the state university a plant for the production and preparation of the hog-cholera serum discovered by the biochemic division of the bureau of animal industry, Washington, D. C. Said plant shall be under the regulation and control of the board of regents of the Nebraska State University.\\n\\\"Section 2. The department of animal pathology of the state university shall carry on the production and preparation of said serum under the provisions of this act and shall deliver to the Nebraska state veterinarian, or his authorized deputies, said serum at the actual cost of production for so much of the serum as shall be used and applied under the direct supervision of the state veterinarian or his deputies. Said department shall also distribute said serum to farmers and swine-growers, residents of Nebraska, at the actual cost of its production.\\\" Laws 1911, ch. 139.\\nThe act contained an appropriation of $15,000 for buildings, plant, equipment and expenses of operation, maintenance and distribution.\\nThe petition contains allegations to the effect that the act of the legislature is unconstitutional and A^oid, that defendant is illegally operating a hog-cholera serum plant with public funds and is distributing serum at cost in competition with private enterprises and is going beyond the scope of the act itself in buying and selling serum produced by private manufacturers.\\nBy petition in intervention Otto E. Lindburg, a veterinarian engaged in buying and selling hog-cholera serum for profit, also applied for an injunction on the grounds pleaded by plaintiff.\\nBy formal answers defendant, among other things, justified the act of 1911 and the work done under it as valid exercises of police power. Upon a trial of the case the \\u2022district court upheld the act and the conduct of defendant \\u00a1generally, but enjoined it from purchasing for res.ale hog-cholera serum not manufactured at the state agricultural college. Plaintiff and intervener have appealed.\\nThe legislative act is first assailed as class or special legislation violating both the federal and the state Constitutions. The reasoning takes this form: In requiring the manufacture of hog-cholera serum at public expense and in limiting the distribution to \\\"farmers and swine-growers, residents of Nebraska, at the actual cost of its production,\\\" the legislature violated the fourteenth amendment to the federal Constitution, providing that \\\"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws;\\\" and also section 15, article III of the Nebraska Constitution, providing that \\\"The legislature shall not pass local or special laws granting to any corporation, association, or individual, any special or exclusive privileges, immunity, or franchise whatever.\\\" In this connection it is argued that licensed veterinarians, for instance, who buy, sell and use hog-cholera serum for profit, are denied the benefits and privileges inuring under the act to the special class limited to \\\"farmers and swine-growers.\\\"\\nThere was no petty motive or unlawful class privilege to account for this legislation when it was enacted in 1911. The ravages of hog-cholera had amounted to a public calamity and the losses therefrom were topics of current history. A serum had recently been discovered through researches and experiments by governmental agencies. It was to give the public the benefit of the discovery that the act was passed. Society as a whole was interested. The quantity, quality and price of hogs were unavoidably affected by cholera and the results extended directly or indirectly to every individual consumer of foods containing pork. Both the disease and the remedy were subjects of grave public concern. They affected one of the chief industries of the state. Protecting the sources of food supplies is a legitimate function of government. The supreme aim of the legislature was the welfare of the public as a whole and not class or special legislation limited to the expenditure of public funds for the individual benefit of \\\"farmers and swine-growers.\\\" These producers were named in the act because they were at the source of the animal food supply, where the remedy for hog-cholera could be applied. A veterinarian, as such, is not a farmer or a swine-grower. He- may be put in a different class for purposes of legislation like this. If he engages in farming or swine-growing, hog-cholera serum will be available to him on the terms open to farmers and swine-growers. For the great purpose of exercising the police power for the benefit of the public at large a reasonable classification is essential. Incidental or unavoidable benefits to an individual or a class do not necessarily invalidate legislation enacted in the exercise of the police power for the benefit of the public. There is no convincing reason for condemning \\\"farmers and swine-growers\\\" as a classification for the purposes of legislation to-protect the food supply of pork by manufacturing and distributing hog-cholera serum at a state institution. The raising of public funds for the purposes outlined is within the taxing power of the state. State v. Miller, 104 Neb. 838.\\nAnother argument is based on the proposition that the legislature is without power to require the state to establish and conduct at public expense a manufacturing enterprise, because the police power is limited to regulation and control. The point does not seem to be well taken. In the exercise of police power the state may create agencies and provide means for scientific research on behalf of the public in an effort to aid in the production and preservation of food and to that'end may make experiments and may manufacture and distribute remedies for the purpose of eradicating diseases among domestic animals. The exercise of governmental power to prevent the destruction of animal food at the source of supply does not necessarily await commercial enterprise or initiative prompted by pecuniary gain. The act in controversy was passed in 1911. It does not appear that the legislation then interfered with any right of plaintiff or intervener or that hog-cholera serum was then an article of commerce. For anything appearing in the record the act was valid when passed. If plaintiff and intervener have since been deprived of any constitutional right by operation of the act under new conditions, the burden is on them to prove the circumstances resulting in their unhappy plight. The findings of the trial court are not sufficient for that purpose and the evidence adduced below has not been presented here. If a valid, unrepealed act of the legislature vanishes from the written law by operation of the Constitution and changed conditions, the facts showing the process of annulment must be free from doubt. If the expenditure of public money legally appropriated by the legislature for public purposes becomes unlawful by constitutional limitations and new circumstances, disbursing officers of the government should have some definite means of learning when and how the statute disappears and the use of the money appropriated becomes unlawful. On this phase of the case there is nothing in the record to establish the invalidity of the act of 1911.\\nThe most formidable argument is directed to the propo sition that the board of regents of the University of Nebraska is limited fundamentally to educational duties, and that therefore the lawmakers cannot require it to engage in the business of manufacturing and distributing hog-cholera serum as an article of commerce. On this point the legislative and constitutional provisions relating to the University of Nebraska are reviewed. The charter was adopted by statute in 1869. The general government was: vested in a board of regents. The charter declared:\\n\\\"The object of such institution shall be to afford to the inhabitants of this state the means of acquiring a thorough knowledge of the various branches of literature, science and the arts.\\\" Laws 1869, p. 172, sec. 2.\\nIt is insisted that the University of Nebraska, the purposes thus defined by its charter and the early laws enacted with a view to carrying out those purposes were adopted by the Constitution of 1875 and became parts of the supreme law, binding alike on the legislature, the board of regents and the courts. The Constitution of 1875 provided:\\n\\\"The general government of the University of Nebraska shall, under direction of the legislature, be vested in a board of six regents to be styled the Board of Regents of the University of Nebraska, who shall be elected by the electors of the state at large, and their term of office, except those chosen at the first election as hereinafter provided, shall be six years. Their duties and powers shall be prescribed by law; and they shall receive no compensation, but may be reimbursed their actual expenses incurred in the discharge of their duties.\\\" Article VIII, sec. 10.\\nThe attorney who presented at the bar this phase of the limitations on legislative power pointed to the provision requiring regents to serve without pecuniary compensation and emphasized the reasons for a governing board composed of public spirited members prompted by an unselfish interest in higher education, uninfluenced by pecuniary considerations. He confidently predicted that this wise purpose of the Constitution will be defeated, if regents are subjected personally to irritating contentions arising from commercial rivalry with private enterprises. In addition to the usual incentives to advocacy his argument was animated by his love for the University of Nebraska as an educational institution and also by his pride in his alma mater.\\nThe question, however, is not one of policy or wisdom, but of legislative power. The only limitations thereon are those imposed by the Constitution. When the Constitution of 1875 was adopted, all former constitutional and statutory provisions were subject to its terms. That instrument declares that the general government of the University of Nebraska shall, under, the direction of the legislature, be vested in a board of six regents, and that their duties and powers shall be prescribed by law. Affording \\\"the means of acquiring a thorough knowledge of the various branches of literature, science and the arts\\\" is not now the limit of its purposes, powers or activities. It has long since passed the stage of scholastic instruction and in addition, is conducting practical experiments and applying knowledge for the benefit of the public, and incidentally aiding individuals, professions and industries. A constitutional provision prohibiting the legislature from authorizing the operation of a hog-cholera serum plant at the state agricultural college or from imposing new duties on the board of regents has not been pointed out or found. The court is committed to the opinion that new purposes may be added by the legislature to those enumerated in the original charter of the University of Nebraska and that new duties may be imposed upon the regents. State v. Whitmore, 85 Neb. 566; Union Stock Yards Co. v. Nebraska State Railway Commission, 103 Neb. 224.\\nAffirmed.\"}"
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+"{\"id\": \"4555397\", \"name\": \"Rollie Church v. State of Nebraska\", \"name_abbreviation\": \"Church v. State\", \"decision_date\": \"1924-10-07\", \"docket_number\": \"No. 24090\", \"first_page\": \"581\", \"last_page\": 582, \"citations\": \"112 Neb. 581\", \"volume\": \"112\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:53:53.929415+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Letton, Rose, Dean, Day, Good and Thompson, JJ.\", \"parties\": \"Rollie Church v. State of Nebraska.\", \"head_matter\": \"Rollie Church v. State of Nebraska.\\nFiled October 7, 1924.\\nNo. 24090.\\nError to the district court for Hamilton county: Lovel S. Hastings, Judge.\\nReversed and dismissed.\\nJ. H. Grosvenor and Patterson & Patterson, for plaintiff in error.\\nO. 5. Spillman, Attorney General, and Rickard F. Stout, contra.\\nHeard before Morrissey, C. J., Letton, Rose, Dean, Day, Good and Thompson, JJ.\", \"word_count\": \"204\", \"char_count\": \"1274\", \"text\": \"Per Curiam.\\nDefendant prosecutes error from a conviction had under section 9612, Comp. St. 1922. The crime is alleged to have been committed April 10, 1920. The complaint on which the prosecution rests was filed September 24, 1923. Defendant pleaded the bar of the statute of limitations, Comp. St. 1922, sec. 9931. To meet this issue, the state alleged in the information that, during the time intervening between the alleged commission of the crime and the filing of the information, defendant was a fugitive from justice, and, therefore, the statute of limitations had not run. We have carefully examined the record on this point and reach the conclusion that at no time was defendant a fugitive from justice within the contemplation of the statute. The prosecution was, therefore, barred. The judgment of the district court is reversed and the proceedings dismissed.\\nReversed and dismissed.\"}"
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diff --git a/neb/4568868.json b/neb/4568868.json
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index 0000000000000000000000000000000000000000..d23bb0d508b51b3e717eda4ba85af0e169a97348
--- /dev/null
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+"{\"id\": \"4568868\", \"name\": \"Missouri Pacific Railroad Corporation in Nebraska, appellee, v. Board of Equalization of Richardson County, appellant\", \"name_abbreviation\": \"Missouri Pacific Railroad v. Board of Equalization\", \"decision_date\": \"1925-12-08\", \"docket_number\": \"No. 24286\", \"first_page\": \"84\", \"last_page\": 88, \"citations\": \"114 Neb. 84\", \"volume\": \"114\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:40:04.763772+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Morrissey, C. J., Dean, Day, Good, Thompson and Eberly, JJ.\", \"parties\": \"Missouri Pacific Railroad Corporation in Nebraska, appellee, v. Board of Equalization of Richardson County, appellant.\", \"head_matter\": \"Missouri Pacific Railroad Corporation in Nebraska, appellee, v. Board of Equalization of Richardson County, appellant.\\nFiled December 8, 1925.\\nNo. 24286.\\nF. N. Prout, for appellant.\\nJ. A. .0. Kennedy and Charles F. McLaughlin, contrd.\\nHeard before Morrissey, C. J., Dean, Day, Good, Thompson and Eberly, JJ.\", \"word_count\": \"1165\", \"char_count\": \"6831\", \"text\": \"Morrissey, C. J.\\nThis is an appeal by Richardson county from a judgment entered in the district court for that county reversing a finding of its board of equalization in the matter of the assessment made against the property of the Missouri Pacific Railroad Corporation.\\nIn June, 1923, the county assessor of Richardson county appraised certain property of the railroad situated within the county, and gave notice of this assessment to the tax; department of the company. Included in the assessment made were two parcels of ground, one consisting of 33.1 acres and another of .999 acres. A roundhouse, machine shops, etc., are situated upon the larger tract, and the office building of the company, at Falls City, is located upon the smaller tract. As provided by statute, the county board of equalization convened on June 12, 1923. On June 29, the board still being in session, the local superintendent of the company notified the county assessor that the company wished to protest the assessment made, and, by mutual agreement, the date for hearing of the protest was set for July 5, 1923. On the day agreed upon, the representatives of the company appeared before the board, but were informed that the period within which protests might be filed and heard had expired, as more than 20 days had passed since the date upon which the board convened, but that the board would hear the protest, reserving the question of jurisdiction for a later ruling. A hearing was then had on the company's protest, which alleged:\\n\\\" (1) The assessment upon the machine and blacksmith shops, storage buildings and office building is too high.\\n\\\"(2) The assessment of the 33.10-acre tract and the buildings thereon situated is illegal, except such part of said assessment as may be levied upon machine repair shops, general office buildings or store house thereon located, for the reason that said tract and buildings is not subject to local assessment and is included in the return made by the Missouri Pacific Corporation in Nebraska to the state tax commissioner of the state of Nebraska under and pursuant to the laws of the state of Nebraska.\\n\\\"(3) That the assessment on the .999-acre tract and the buildings thereon situated is illegal, except such part of said assessment as may be levied upon machine repair shops, general office buildings or store house thereon located, for the reason that said tract and buildings is not subject to local assessment and is included in the return made by the Missouri Pacific Corporation in Nebraska to the state tax commissioner of the state of Nebraska under and pursuant to the laws of the state of Nebraska.\\\"\\nOn July 9, 1923, the board of equalization dismissed this protest \\\"for lack of jurisdiction.\\\" The railroad company took an appeal to the district court, and that court held that the board of equalization erred in holding that it did not have jurisdiction to hear and determine the protest, and entered a decree in which assessments made upon the two parcels of land were set aside, as were, also, the assessments made upon the power house and certain other buildings. In respect to all other items of the assessment, the court confirmed the appraisement made by the county assessor.\\nAppellant's first assignment of error deals with the jurisdiction of the court to hear the appeal taken from the decision of the board of equalization. It is argued that on the date of hearing by the board, July 5, 1923, the 20-day period provided by statute had expired and thus the board of equalization was without jurisdiction, and, that body being without jurisdiction, the court could not acquire jurisdiction. It is true that the date set for hearing the protest was more than 20 days after the board had convened, but the statute (Comp. St. 1922, sec. 5979) provides that the county board may take adjournments from time to time awaiting the action of the state board of equalization. In Hiller v. Unitt, 113 Neb. 612, it is held:\\n\\\"The jurisdiction of a county board of equalization is limited to a session of 20 days, but it may adjourn from day to day or from time to time, and its jurisdiction will continue until such time as will enable the assessor to forward a copy of the assessment to the state board of equalization on or before July 10, of each year.\\\"\\nThe record does not show that the board had held a session of 20 days, and, in the absence of such showing, the trial court did not err in holding that the board of equalization had jurisdiction to hear the protest of the taxpayer.\\nIn addition to the question of jurisdiction already discussed, and applying to the property held to be exempt from local assessment, appellant has advanced the following proposition:\\n\\\"The property being off the right of way of the railroad and being of the character embraced within the proviso of the statute, it was the duty of - the officers of the company to list it for taxation with the county assessor.\\\"\\nThis assignment is based upon appellant's construction of section 5839, Comp. St. 1922, which, among other things, provides that all machine repair shops, general office buildings, store houses, and also all real and personal property outside of the right of way and depot grounds, etc., shall be listed for taxation with the local assessor. It is argued that the right of way should be held to be a strip of ground only 200 feet in width. However, this court has held in Chicago, B. & Q. R. Co. v. Box Butte County, 99 Neb. 208:\\n\\\"A railroad, for the purpose of assessment and taxation, is considered as an entity, and includes all property that is held and used principally in the operation of the road and carrying on the business of transportation.\\\"\\nAnd in Chicago, B. & Q. R. Co. v. Webster County, 101 Neb. 311:\\n\\\"A pipe line connecting springs with a water system established and operated by a railroad company, owner, for general railroad purposes at a station and roundhouse, and the necessary land around the springs, should be assessed by the state board of equalization and assessment, and not by the county board of equalization, though the property described is not within the regular railroad right of way and station grounds. Rev. St. 1913, secs. 6375-6377.\\\"\\nGiving effect to the holdings just quoted, it logically follows that the property covered by this assessment was not subject to local assessment, and the trial court did not err in striking it from the local assessment rolls.\\nThe judgment of the district court is\\nAffirmed.\\nNote \\u2014 See Taxation, 37 Cyc. 1075 (Ann).\"}"
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+"{\"id\": \"4570218\", \"name\": \"David City Building & Loan Association, appellee, v. Martin R. Fast et al., appellants\", \"name_abbreviation\": \"David City Building & Loan Ass'n v. Fast\", \"decision_date\": \"1926-05-25\", \"docket_number\": \"No. 24000\", \"first_page\": \"621\", \"last_page\": 626, \"citations\": \"114 Neb. 621\", \"volume\": \"114\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:40:04.763772+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Rose, Dean, Day, Good, Thompson and Eberly, JJ.\", \"parties\": \"David City Building & Loan Association, appellee, v. Martin R. Fast et al., appellants.\", \"head_matter\": \"David City Building & Loan Association, appellee, v. Martin R. Fast et al., appellants.\\nFiled May 25, 1926.\\nNo. 24000.\\nF. H. Mizera and A. M. Walling, for appellants.\\nRoper & Fuller, contra.\\nHeard before Rose, Dean, Day, Good, Thompson and Eberly, JJ.\", \"word_count\": \"1449\", \"char_count\": \"8540\", \"text\": \"Thompson, J.\\nThis is a suit brought by the plaintiff, appellee, hereinafter called the association, against the appellants, husband and wife, hereinafter called defendants, to have decree of foreclosure of a mortgage for $1,300 given to secure a bond in such association, which mortgage is claimed to have been executed by said defendants in usual form and delivered to the association on the north one-half of lot 3, block 5, Miles Second Addition to David City, Butler county, Nebraska. The petition is in ordinary form. Defendants, separately answering, meet such petition by a general denial, and further that, while the signatures of the makers are those of defendants, such instruments have each been fraudulently altered in a material part by the association since their execution and delivery, in this, that the bond has been changed from $1,200 to $1,300, as has the mortgage securing the same, and they are not the instruments executed or delivered by defendants, respectively; to which a reply of general denial and plea of ratification is interposed. Trial was had to the court, and decree and order of sale entered in favor of the association, and against the defendants, as prayed. To reverse this decree, defendants separately appeal, and present as error, in substance, that the findings and judgment of the trial court are not supported by the evidence, and are contrary to the law applicable to the facts proved. The association files a cross-appeal, and as a challenge to the judgment alleges, in substance, that in assessing the amount of fines collectable and unpaid the trial court erred wherein it found $53.30 to be due and payable as fines, when in fact it should have found $729.30.\\nThe record reveals the following facts: The defendants Fast were at the dates covered by this transaction husband and wife, and the joint owners of the property above described, which was improved, and on which they resided as their home; that they, nor either of them, owned any other lands, town lots or houses in this state; that such half lot was and is, with the improvements thereon, their homestead, and does not exceed in value $2,000; that the plaintiff is a building and loan association duly incorporated under the laws of Nebraska for the purpose indicated by its name, and doing business in Butler county; that defendants desired to borrow of the association $1,200, and to secure the payment thereof by a mortgage to be executed by them running to such association; that on April 2, 1919, in furtherance of such wish, they went to the place of business of the association and informed its duly constituted officers in charge of such desire; that they were by them informed that in order to procure such loan they must purchase 12 shares of the stock of the association, which defendant M. R. Fast did; that the stock was issued as of that date to such M. R. Fast, the husband, and was then by him indorsed and delivered back to the association, at which time it issued in. the name of M. R. Fast its pass-book representing such $1,200 loan, and showing therein credit for such amount; that these documents were left with the association, the latter requesting that defendants return the. next day, April 3, 1919, when the papers necessary would be ready for them to execute; that defendants returned on April 3, 1919, and each signed the bond in question for the $1,200, and a mortgage for the same amount, and jointly acknowledged the latter, which was also duly witnessed; that after the execution of such bond and mortgage, which were then delivered to the association, the pass-book upon which the $1,200 loan had been credited was turned over to the defendant husband and the loan of $1,200 thereafter applied in payment of the balance owing by the defendants jointly on the purchase price of, and in making improvements on, such half lot in accordance with the understanding of the parties; that for some unexplained reason the bond is dated April 8,1919, as we have stated, but that the mortgage and the acknowledgement are each dated April 4, 1919; that on April 10, 1919, defendant M. R. Fast returned alone to the office of the association, and, in his own individual capacity, requested an additional loan of $100 of the officers in charge; that when this request was made one of the officers asked of the book-keeper if the mortgage had been filed, and, being informed that it had not, the book-keeper was directed by her superior officer to change the amount in the bond, mortgage and certificate, respectively, from $1,200 to $1,300, which she did; that the record shows that defendant Alice Fast was without knowledge of the transaction of April 10, 1919, until after the commencement of this suit; that the property had been purchased shortly before by defendants for $1,325.\\nThe above facts, as detailed are without contradiction in the evidence. The only evidence offered to show any knowledge on the part of the wife as to these alterations, or the additional loan of $100, was proof that she had individually paid to the association two monthly payments of dues, and had furnished the husband some money to aid in other payments. However, the evidence further shows that she never examined the pass-book for the purpose of seeing how many shares they were collecting on, or the amount of money that they were collecting on each share, or that she knew thereof, but simply paid what the association asked for. This would not be sufficient to put her upon guard, or to establish assent, waiver, or estoppel.\\nTaking up the appeal of the defendant M. R. Fast, it will be seen that what the officers of the association were about to do was in furtherance of his request for an additional loan of $100; further, that he was present, and when the book-keeper was directed to make such alterations in such respective instruments, he lodged no objection thereto, but by his presence and lack of dissent approved the same, and thereafter with full knowledge of what had been done, he continued to recognize the bond as thus altered by receiving the $100, and by making monthly payments on the bond as altered. He thus led those dealing with him to believe that he was satisfied therewith, and consented thereto. Therefore, he is now estopped from asserting to the contrary as to such bond. The relation of the husband, defendant M. R. Fast, to the mortgage will be hereinafter considered.\\nConsidering now the appeal of the defendant Alice Fast, such alterations in the bond and mortgage, respectively, were each material alterations, made by the association, payee in the bond and mortgagee in the mortgage, without authority and without the knowledge or consent of defendant Alice Fast, and were never by .her approved, ratified or assented to in any manner. Hence, such alterations having been so made, intentionally by such association in utter disregard of her rights, she being one of the makers of the bond and mortgage so altered, such respective alterations are each inherently fraudulent whether so intended by the association at the time or not, and, in law, they thereby canceled such bond and the debt evidenced thereby as to defendant Alice Fast, and also discharged such mortgage as to her. This conclusion is in harmony with our uniform holdings. Brown v. Straw, 6 Neb. 536; Townsend v. Star Wagon Co., 10 Neb. 615; Walton Plow Co. v. Campbell, 35 Neb. 173; Foxworthy v. Colby, 64 Neb. 216.\\nOur statute, provides that, in order to be valid, an instrument such as the mortgage here in question must be executed and acknowledged by both husband and wife. We have held, when not so executed and acknowledged, such mortgage is void. Kimmerly v. McMichael, 83 Neb. 789. Therefore, as the alterations here made canceled the debt and released the mortgage as to the wife, the mortgage no longer remained the. joint mortgage of both husband and wife, and therefore it is void; and, being void, the cancelation and discharge thereof is. effective as to both husband and wife.\\nThis renders it unnecessary for us to consider the cross-appeal of the association.\\nThe findings and judgment of the trial court are reversed and set aside, and the cause remanded for further proceedings in harmony with this opinion.\\nReversed.\\nRose and Good. JJ., dissent.\"}"
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+"{\"id\": \"4580744\", \"name\": \"John Bosteder, appellee, v. William B. Duling, appellant: Mary Barrett, Administratrix, appellee\", \"name_abbreviation\": \"Bosteder v. Duling\", \"decision_date\": \"1928-06-08\", \"docket_number\": \"No. 26460\", \"first_page\": \"154\", \"last_page\": 160, \"citations\": \"117 Neb. 154\", \"volume\": \"117\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:52:53.911008+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Rose, Good, Thompson, Eberly and Howell, JJ., and Redick, District Judge.\", \"parties\": \"John Bosteder, appellee, v. William B. Duling, appellant: Mary Barrett, Administratrix, appellee.\", \"head_matter\": \"John Bosteder, appellee, v. William B. Duling, appellant: Mary Barrett, Administratrix, appellee.\\nFiled June 8, 1928.\\nNo. 26460.\\nReavis & Beghtol, for appellant.\\nAllen & Requartte and E. G. Maggi, for appellee Duling.\\nAdams & Zimmerman, for appellee Barrett.\\nHeard before Rose, Good, Thompson, Eberly and Howell, JJ., and Redick, District Judge.\", \"word_count\": \"1956\", \"char_count\": \"11650\", \"text\": \"Eberly, J.\\nThis is an action by John Bosteder, as plaintiff, for damages sustained by him occasioned by the wrongful acts and neglect of one William B. Duling and one Edward Barrett in connection with a defective ensilage cutting machine jointly owned by them. From a verdict and judgment in favor of the plaintiff and against both defendants, Duling alone appeals. Mary Barrett, the original defendant, as administratrix of the estate of Edward Barrett, deceased, however, also presents a brief in behalf of Barrett's estate.\\nThis is the second appearance of this controversy in this court. Bosteder v. Duling, 115 Neb. 557.\\nDuling challenges the correctness of the adjudication against him on the general ground that the evidence is insufficient to sustain it. This general proposition as urged by him applies to three distinct questions arising in the record, viz.: (1) That the evidence in no manner sustains the judgment against either of the defendants; (2) that the evidence establishes affirmatively that, at the time of the injury, Duling had \\\"loaned\\\" the plaintiff's services, with plaintiff's consent, to the defendant Barrett under such circumstances and conditions as to constitute Barrett plaintiff's sole master, and that thus the recovery against Duling could not be sustained; (3) assumption of risk on part of plaintiff.\\nAt the former trial of this case in the district court that tribunal, at the close of plaintiff's evidence, sustained a motion directing a verdict for the defendants. On review of this proceeding, this court held that the determination thus made was \\\"clearly against the weight of the evidence and the law applicable thereto.\\\" Reference is here made to the opinion by Thompson, J., in that case for statement of facts established by the evidence at the time before the court. Bosteder v. Duling, supra.\\nIn the record now before us appears substantially all of the evidence presented for consideration of this tribunal at the first hearing thereof, together with additional evidence, cumulative in nature, introduced by plaintiff. The defendant also introduced evidence at the last trial in the district court which, at most, may .be deemed contradictory to that of plaintiff. But the jury, in consideration of the conflicting evidence, found generally for the plaintiff and against the defendants on the issues of fact thus presented in the record and submitted to their determination. Their action is final. Skala v. Michael, 109 Neb. 305; Caniglia v. Vacanti, 106 Neb. 793.\\nOn the question as to the joint liability of the defendants, in our former opinion appears the following statement with reference thereto: \\\"The further question is presented that these defendants are not jointly liable, and, not being so, cannot under this record be held individually. The evidence presented brings this case clearly within our holding in Schweppe v. Uhl, 97 Neb. 328, wherein we held: 'An act wrongfully done by the joint agency or coopera tion of several persons, or done contemporaneously by them without concert, renders them liable jointly and severally.' Further, as held by us in Koehn v. City of Hastings, 114 Neb. 106: 'If one suffers injury and damage as the proximate result of the negligence of two others, and the damage would not have occurred but for the negligence of each of such parties, both are liable to the person so injured.' \\\" Bosteder v. Duling, 115 Neb. 557.\\nIt would, therefore, fairly appear that, on the controlling questions now presented, this court has heretofore deliberated, decided, and announced its determination. It follows, in view of the record before us, that the conclusions of this court thus announced in our former opinion must now be deemed to be the law of the case. O'Hara v. Davis, 109 Neb. 615; Lawson v. Union P. R. Co., 113 Neb. 745; Merkouras v. Chicago, B. & Q. R. Co., 104 Neb. 491; State v. Farmers State Bank, 106 Neb. 387; Scott v. Scotts Bluff County, 106 Neb. 355; Brightenburg v. Mulcahy, 109 Neb. 423; Harris v. Central Power Co., 111 Neb. 565; Kerr v. Travelers Ins. Co., 103 Neb. 566.\\nOn the question of assumption of risk presented by appellant, a careful consideration of the evidence in the record sustains the conclusion that the proof presented to, and considered by, the jury was ample to sustain the verdiet as returned by them in the instant case, which, in effect, negatived appellant's defense on this ground. Indeed, the unquestioned ultimate facts of the transaction, as established by the evidence in the record before us, are such that it is doubtful whether any of the theories advanced by the appellant would operate to discharge him from liability for the results of the accident or secure for him relief from the judgment entered herein. At least, it may be said that ample proof sustains the conclusion that the defective machine, occasioning the injuries complained of, was originally purchased by Duling and the now deceased Barrett jointly; that it continued to be their joint property of which each enjoyed equal control as equal owners thereof, and was such at the time of the acci dent; that this machine was purchased, owned and maintained by its proprietors expressly to do the work of each upon the farms occupied by each, and to be operated by the labor furnished by both. It is thus fairly inferable that it was thus contemplated from the beginning by the joint owners that, as occasion required in the ordinary prosecution of their farm work, the machine in question should not only be employed and used by them as individuals and their joint employees, if any, but would also be furnished to and used by their individual servants and employees. The record also sustains the further conclusion that the particular kind or class of work in which this defective machine was employed by its owners,' though performed for the benefit of each coowner as an individual, was treated by them as a joint undertaking, to be participated in by both with a view of securing more economical as well as more efficient service and results. This transaction then, as an entirety, bears many earmarks of a joint adventure, and would seem to be controlled by the principles applicable to that relation. Peterson v. Nichols, 90 Wash. 398.\\n\\\"A contract establishing a joint adventure need not be express, but may be implied from the conduct of the parties.\\\" Jackson v. Hooper, 76 N. J. Eq. 185.\\nWhile our present transaction did not involve direct profits of a mercantile nature, it did contemplate mutual benefits to the parties thereto. Besides, expectation of profits is not a necessary element of a joint adventure. Moore v. Hillsdale County Telephone Co., 171 Mich. 388.\\nWhile joint ownership of property alone does not create it, \\\"A 'joint adventure' may exist where persons embark in an undertaking without entering on the prosecution of the business as partners strictly, but engage in a common enterprise for their mutual benefit; they each have the right to demand and expect from their associates good faith in all that relates to their common interests.\\\" Jackson v. Hooper, supra.\\nOn the basis that we have before us what amounts to a joint adventure, the rule applicable to the controversy would be: \\\"Joint adventurers who are engaged in an enterprise requiring the use of mechanical contrivances are jointly and severally liable as joint tortfeasors.\\\" 33 C. J. 873, sec. 102. This question of joint adventure is, however, not necessary to the determination of this case. A careful examination of the facts of the record discloses that a simpler principle is applicable and a simpler question is controlling.\\nDefendant Duling admits j oint ownership of the machine involved. The record sustains the evident conclusion of the jury that it was defective at the time of the accident, and that Duling knew it, or should have known it. Indeed, under his own evidence, there can be no question as to his knowledge, intent and purpose that on the day of this accident this defective machine was intended to be, and actually was, furnished to be operated by Bosteder in a place of danger. If Bosteder was then and there to be considered as the employee and servant of Duling, as a necessary incident of this employment would follow the duty of his master to furnish him with a reasonably safe instrumentality wherewith, and a reasonably safe place wherein, to do his work. But, on the other hand, if that contractual relation at the time of the accident be deemed as not to exist as to Duling, but to exist as between Bosteder and Barrett, still Duling, as an equal coowner of the defective machine furnished for Bosteder's use, under the facts in this case, was not relieved thereby from liability. The rule applicable to the then situation might, indeed, absolve him from liability as a master, but would be inoperative to absolve him from liability as a coowner furnishing machinery for the use of the servants of another.\\n\\\"A person undertaking to furnish machinery or appliances for the use of the servants of another assumes a duty to furnish proper and safe appliances; and a negligent performance of such a duty, resulting in injuries to one engaged in doing the work or lawfully using the appli anees, imposes a liability on the person so furnishing the same for injuries sustained in consequence of such negligence. The obligation does not depend on a contractual relation between the person injured and the person whose negligence causes the injury, but on a failure to perform a duty assumed by one which results in injury to another.\\\" 18 R. C. L. 542, sec. 57. See, also, D'Almeida v. Boston & Maine Railroad, 209 Mass. 81; Pearson v. Arlington Dock Co., 111 Wash. 14; Roddy v. Missouri P. R. Co., 104 Mo. 234; Bright v. Barnett & Record Co., 88 Wis. 299.\\nThis court is committed to the view that it is a nondelegable duty of the master to exercise reasonable care to provide reasonably safe places to work, and to furnish reasonably safe and suitable appliances with which to work. This principle is alike applicable to him who undertakes to furnish machinery or appliances for use of the servants of another. If, in either case, he undertakes to perform this duty imposed by law through or by another, he acts at his own risk. If, therefore, the evidence be true that the plaintiff refused to work with this machine until repairs had first been made, and Duling was assured by Barrett that the machine had been fixed, when, in fact, it had not been repaired, 'and plaintiff, in turn, was induced by Duling to rely on Barrett's statement, good faith in the transaction can afford Duling no defense. And, on the other hand, if Duling had been duly notified or knew of the machine's defects and wholly failed to effect a correction thereof, he violated the plain duty which the fact of his coownership and the contemplated use of the machine imposed upon him, in view of the circumstances of this case.\\nIn any event, therefore, it cannot be said that the verdict returned in this case and judgment entered thereon are not supported by the evidence of the record.\\nIt therefore follows that the district court in the present case has proceeded in accord with law. The judgment of the district court is correct, and is\\nAffirmed,\\nHowell, J., dissents as to liability imposed on Duling.\"}"
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+"{\"id\": \"4605148\", \"name\": \"State of Nebraska v. James Havel\", \"name_abbreviation\": \"State v. Havel\", \"decision_date\": \"1931-03-20\", \"docket_number\": \"No. 27627\", \"first_page\": \"832\", \"last_page\": 834, \"citations\": \"120 Neb. 832\", \"volume\": \"120\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:12:26.427355+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Rose, Dean, Good, Eberly, Day and Paine, JJ.\", \"parties\": \"State of Nebraska v. James Havel.\", \"head_matter\": \"State of Nebraska v. James Havel.\\nFiled March 20, 1931.\\nNo. 27627.\\nGuy A. Hamilton, for plaintiff in error.\\n. Sloans, Keenan & Corbitt and Bartos, Barios & Pl\\u00e1cele, contra.\\nHeard before Goss, C. J., Rose, Dean, Good, Eberly, Day and Paine, JJ.\", \"word_count\": \"615\", \"char_count\": \"3639\", \"text\": \"Day, J.\\nThe county attorney of Fillmore county presents to the supreme court the bill of exceptions taken under the provision of the Code for the decision of such court upon the points presented therein under section 29-2314, Comp. St. 1929. One Havel was charged with contempt of court in that he had committed the offense of subornation of perjury in another action previously tried in the same court and before the same trial judge. Upon a trial upon the charge of contempt, at the close of the state's case, a demurrer to the evidence by the defendant was sustained by the trial court.\\nThe record presents this question for our determination: Should the demurrer to the evidence have been sustained? This court will not consider the credibility of witnesses or the weight of testimony in passing on a de murrer to the evidence. In passing upon the question as to the sufficiency of the evidence to support- plaintiff's cause, on a demurrer thereto, the court will draw every reasonable inference from the facts in evidence that may be indulged in favor of the cause of action. If there is any competent evidence tending to support the issues, the sustaining of the demurrer is erroneous. The same rule applies as in the case of a dismissal, nonsuit, or direction of verdict. This rule is established in this state in numerous cases. Paxton v. State, 59 Neb. 460; Nothdurft v. City of Lincoln, 66 Neb. 430; Central Nat. Bank v. Ericson, 92 Neb. 396; Schmelzel v. Leecy, 104 Neb. 672; Kimble v. Roeder, 115 Neb. 589.\\nSimply expressed, the state's evidence, to which defendant demurred, conclusively shows that, at the time when the defendant induced certain witnesses to testify falsely, the action was pending in the county court. The transcript of the proceedings in the county court had not yet been filed in the district court, and thereafter, upon a trial of said cause, defendant called these witnesses to testify in his behalf. When he called the witnesses to testify in his behalf and they testified falsely, in accordance with arrangements theretofore made, the contempt was committed. When one induces and arranges with and influences witnesses to testify falsely in an action not then pending, and in accordance with said plans, at the time of the trial, calls the said witnesses to testify in his behalf and they testify falsely, such action constitutes contempt.\\nThe procuring of false testimony hinders and interferes with the administration of justice. It puts the witnesses and the procurer in the position of standing out against the authority of the court and defeats its effort and purpose to do justice between the parties. It follows that the ruling of the trial judge was erroneous and the exception thereto by the county attorney ought to be sustained.\\nThe state's attorney asks that we remand the cause for further proceedings. This cannot be done. In a case brought to this court under the provisions of section 29-2314, Comp. St. 1929, permitting the county attorney to present exceptions to the rulings of the trial judge, in a criminal case, where the defendant was acquitted, the only function of the court is to determine the law of the case. State v. Badberg, 108 Neb. 816.\\nExceptions sustained.\\nGood and Eberly, JJ., dissent solely on the ground that, in view of the nature of the proceeding, this court has no jurisdiction to determine the question presented.\"}"
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+"{\"id\": \"4623004\", \"name\": \"Edward Woodring, appellee, v. Commercial Casualty Insurance Company, appellant\", \"name_abbreviation\": \"Woodring v. Commercial Casualty Insurance\", \"decision_date\": \"1932-03-11\", \"docket_number\": \"No. 28039\", \"first_page\": \"734\", \"last_page\": 738, \"citations\": \"122 Neb. 734\", \"volume\": \"122\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:01:01.129718+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Dean, Eberly and Paine, JJ., and Wright, District Judge.\", \"parties\": \"Edward Woodring, appellee, v. Commercial Casualty Insurance Company, appellant.\", \"head_matter\": \"Edward Woodring, appellee, v. Commercial Casualty Insurance Company, appellant.\\nFiled March 11, 1932.\\nNo. 28039.\\nHarry W. Shackelford, for appellant.\\nJ. J. Krajicek, contra.\\nHeard before Goss, C. J., Dean, Eberly and Paine, JJ., and Wright, District Judge.\", \"word_count\": \"1464\", \"char_count\": \"8512\", \"text\": \"Wright, District Judge.\\nThis is an action brought by Edward Woodring, appellee, hereinaft\\u00e9r referred to as plaintiff, against Commercial Casualty Insurance Company, of Newark, New Jersey, a corporation, appellant, hereinafter referred to as defendant, on an automobile accident insurance policy issued by the defendant. In the district court, at the conclusion of all the testimony, both plaintiff and defendant moved for a directed verdict. Thereupon, the court discharged the jury and entered judgment for plaintiff, from which defendant has appealed.\\nUnder date of January 9, 1929, the defendant issued to plaintiff its \\\"Superior Automobile Accident Policy,\\\" whereby it undertook, in consideration of the premium to it paid, to insure the plaintiff for a stipulated term against loss or disability resulting directly and independently from bodily injuries effected solely through external, violent and accidental means while operating, driving, riding in, demonstrating, adjusting or cranking an automobile. The policy contained, however, the express provision: \\\"This policy does not cover: (1) Any loss, fatal or otherwise, suffered by a hired operator.\\\"\\nThe plaintiff, at the time he took the policy, gave his occupation as that of a \\\"salesman.\\\" At that time he was employed in that capacity for a mineral springs company, and later was employed by Tall-One Bottling Company, selling its soft drinks. The president and manager of this company testified that his duties were selling soft drinks; \\\"Going from customer to customer and soliciting business, and selling right off of the truck,\\\" the truck being furnished by the employer; that he was working for a salary of $15 a week, plus commissions. The plaintiff testified that on the day of the accident which caused his disability he was driving to Plattsmouth with his employer's truck partially loaded, to sell and deliver the bottled goods; that he was hired to sell and deliver his company's products; that his work did not always consist of delivering; \\\"It was selling wherever I could, and if I had' the goods, to deliver them. I took the orders.\\\" \\\"I solicited new customers. That was the object in going to Plattsmouth.\\\" He had made one trip to Plattsmouth before to sell goods and had one customer and he had planned to make regular trips down there about once a week as he worked up trade enough to justify. On the day of the accid\\u00e9nt he was going down to call on this customer and also to see if he could work up some new trade. We think the evidence fairly establishes that his occupation was that of a \\\"salesman\\\" and that much of the time he took the merchandise with him and delivered as he sold. As an incident to the business he drove the automobile or truck on which he received his injury.\\nThe defendant contends that the plaintiff was a \\\"hired operator\\\" of the truck he was driving and therefore the injury he suffered was not covered by the policy. This is the only question presented for our determination. The plaintiff insists that the term \\\"hired operator\\\" as used in the policy means a chauffeur or one who is paid for his skill in the operation of an automobile, and that under his employment he did not come within that class.\\nIt has long been the rule of this court, consistently followed, that \\\"Courts will construe policies of insurance more strongly against the party by whom the contract has been drafted, and who has had the time and opportunity to select, with care and ingenuity, and with a view to its own interests, the language in which the contract is couched.\\\" Connecticut Fire Ins. Co. v. Jeary, 60 Neb. 338. See Haas v. Mutual Life Ins. Co., 84 Neb. 682; Coad v. London Assurance Corporation, 119 Neb. 188.\\nUnder the facts here presented, we are not inclined to hold that where, as an incident in carrying on his occupation of selling merchandise for his employer, the plaintiff was required to or did drive the automobile or truck, he should therefore be classed as a \\\"hired driver\\\" within the meaning of the policy. We know of no instance where the term \\\"hired driver\\\" has been defined when used, as in the. present case. The term \\\"chauffeur\\\" has been defined as \\\"A man who drives an automobile for hire.\\\" 11 C. J. 746. And, again, as \\\"One who manages the running of an automobile, especially the paid operator of a motor vehicle.\\\" Webster's International Dictionary.\\nIn People v. Dennis, 166 N. Y. Supp. 318, the defend-' ant was convicted of violating a statute providing that no person shall operate or drive a motor vehicle as chauffeur upon a public highway of this state unless such person shall have complied with the statutes. The defendant was an employee of a telephone company and his duties required him to drive an automobile in servicing the telephones of his employer's patrons. The employer furnished him a \\\"Ford runabout\\\" which he used for that purpose. Naylon, Judge, speaking for the court in determining that the defendant did not come under the definition of a chauffeur as used in the statute, said: \\\"I am unconvinced, by any legal definition or authority to which my attention has been directed, that the term 'chauffeur/ as employed in the law in question, is sufficiently comprehensive to include within its provisions a person whose only duty of driving a motor car is to convey himself and the tools and implements and materials that are necessary for him to use in the doing of his work to the place where he is called upon to perform such work. The only use he made of the motor car was merely incidental to his regular employment. His duties were principally and substantially those of repairing telephones that were out of order.\\\"\\nThe Texas court of criminal appeals in Matthews v. State, 85 Tex. Cr. Rep. 469, in construing the statute of that state providing that no person shall employ for hire as a chauffeur of a motor vehicle any person not licensed as in the act provided, said: \\\"Section 25 of said Act provides that 'An application for a license to operate a motor vehicle as a chauffeur (and by \\\"chauffeur\\\" is meant any person whose business or occupation is that he operates a motor vehicle for compensation, wages or hire)/ etc. This definition as well as the provisions of this Act seem to apply to those who are known as chauffeurs and who operate motor vehicles as such chauffeur for compensation, wages or hire. This is a legislative definition, and by this the court should be governed. It would seem from reading the definition of 'chauffeur' that in order to bring him within that class he must operate the motor vehicle as such for compensation, wages or hire, and it would further seem this would apply directly to the fact or relation of driver of the vehicle for compensation, wages or hire, and would seem to exclude the idea that the vehicle was used as an incident to carry- on the business.\\\" And further says: \\\"So it would seem from a reading of the Texas statute, viewed in the light of the general acceptation of the term 'chauffeur/ that where a license is required of the chauffeur for hire or wages, it has a direct relation to his employment to run the vehicle itself for hire and not as an incident to the delivery of the goods, wares and merchandise of his employer. The employment in the latter case is to take orders and deliver the goods, not to run the auto, the auto being used as an incident for the purpose of soliciting orders and delivery of the goods. The chauffeur as contemplated by the statute has a direct relation to the hire for operating the vehicle, while in soliciting and delivering goods it is an incident to his employment as a means of carrying on the business for which he receives no direct pay, as in this case.\\\"\\nThe policy in the present case beyond question insures the plaintiff against loss from injury sustained while driving or riding in an automobile, and we -are not willing to say that the mere fact that he was driving such automobile as an incident to his employment, for which he was receiving compensation, would bring him within the class of \\\"hired- drivers\\\" so as to relieve the defendant from liability.\\nThe judgment of the district court is affirmed, with an allowance of $100 for attorney's fee, to be taxed as costs in this court.\\nAffirmed.\"}"
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+"{\"id\": \"4663546\", \"name\": \"Frank L. Pollard et al., appellees, v. Royal Highlanders, appellant\", \"name_abbreviation\": \"Pollard v. Royal Highlanders\", \"decision_date\": \"1935-04-23\", \"docket_number\": \"No. 29257\", \"first_page\": \"790\", \"last_page\": 795, \"citations\": \"128 Neb. 790\", \"volume\": \"128\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:51:19.624845+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Rose, Good, Eberly, Day, Paine and Carter, JJ.\", \"parties\": \"Frank L. Pollard et al., appellees, v. Royal Highlanders, appellant.\", \"head_matter\": \"Frank L. Pollard et al., appellees, v. Royal Highlanders, appellant.\\nFiled April 23, 1935.\\nNo. 29257.\\nL. A. Flansburg, O. B. Clark and E. S. Schiefelbein, for appellant.\\nJ. H. Barry, contra.\\nHeard before Goss, C. J., Rose, Good, Eberly, Day, Paine and Carter, JJ.\", \"word_count\": \"1572\", \"char_count\": \"9173\", \"text\": \"Carter, J.\\nThis is an action at law commenced by the appellees as beneficiaries under a certificate of insurance issued to Catherine A. Pollard in her lifetime by the Royal Highlanders, a fraternal beneficiary society for the amount of $1,000. The appellees obtained a verdict and judgment for the full amount of the policy. From the overruling of its motion for a new trial, the appellant appeals.\\nThe evidence in this case discloses that Catherine A. Pollard was issued a certificate of insurance for $1,000 on June 1, 1930. Under the provisions of that certificate she was required to pay $4.70 a month, and a failure to so do suspended her membership and rendered the policy void. The payments for June and July were paid, but she failed to make the payments due in August of 1930 and the months following up to and including January, 1931. On February 9, 1931, Catherine A. Pollard forwarded a check for all delinquent payments to the main office of the appellant at Lincoln, Nebraska, together with a certificate of good health, as required by the society in order to secure a reinstatement of the policy. The certificate of good health was in part as follows: \\\"This\\nis to certify that I, desiring to become reinstated, do declare, guarantee and warrant on my honor that I am not engaged in any prohibited occupation of this society, that I am of sound constitution, good health and temperate habits, and that since the date of my application, I have sustained no personal injury, nor been afflicted with any disease or sickness from which I am not now fully recovered. This statement is given as a part of the consideration for my reinstatement, and I agree that, if the above statements be untrue in any respect, this reinstatement shall be void.\\\"\\nThe appellant contends that Catherine A. Pollard was not in good health at the time she made application for reinstatement; that her statements in the certificate of good health were warranties upon which appellant could rely, and, they being untrue, the policy was void. Appellant tendered back the premiums paid and denied liability.\\nThe trial court instructed the jury on the theory that the statements of Catherine A. Pollard were representations and not warranties as contended by the appellant. The first question to be determined is whether the statements of Catherine A. Pollard contained in the certificate of good health are representations or warranties of her then physical condition.\\nIn Morrissey v. Travelers Protective Ass'n, 122 Neb. 329, it was held: \\\"It is definitely settled by this court, through a long line of cases, that, in determining whether statements made in an application for insurance are warranties or representations, the court will take into consideration the situation of the parties, the subject-matter, and the language employed, and will consider a statement made to be a warranty only when it clearly appears that such was the intention of the contracting parties. It is equally well settled as the law of this state that a distinction is recognized between questions in an application which call for statements of conclusions of fact not expressly within the knowledge of the applicant, and in regard to which the insurance company has equal means of ascertaining for itself the truth, and, on the other hand, questions which call for information regarding facts necessarily and peculiarly within the knowledge of the applicant. It is held that an incorrect or untrue answer in an application for life insurance in reference to matters of opinion will not void a policy, but that an untrue answer in an application for life insurance as to matters which are peculiarly within the knowledge of the applicant, and material to the risk, will void the policy.\\\"\\nIn Royal Neighbors of America v. Wallace, 73 Neb. 409, it was held: \\\"An incorrect or untrue answer in an appli cation for life insurance in reference to matters of opinion or judgment will not avoid the policy if made in good faith and without intention to deceive.\\\"\\nIn the case of Aetna Life Ins. Co. v. Rehlaender, 68 Neb. 284, the insured executed a certificate of good health containing the following provision: \\\"I hereby certify that said Rudolph L. Rehlaender is now in good health, and that there is nothing in his habits or condition which is likely to impair his health or shorten his life.\\\" This was held to be a representation, and not a warranty.\\nIn Beeler v. Supreme Tribe of Ben Hur, 106 Neb. 853, the applicant answered certain questions as follows: \\\"How long since you consulted or were attended by a physician? One year.\\\" \\\"For what disease? La grippe.\\\" \\\"Have you had any severe illness or injury not mentioned above? No.\\\" The defendant offered evidence tending to show that the applicant had been treated shortly before for bronchitis and pneumonia and \\\"had previously suffered from heart trouble. The court in that case said: \\\"We have no hesitancy in holding that the statements of assured in the application complained of are representations, and not warranties.\\\"\\nThe chief distinction between a warranty and a representation in insurance law is that the former is the assertion by the assured of some fact, on the literal truth of which the validity of the policy depends, without regard to the materiality of such fact; while a representation is also the assertion by the assured of a fact, but the validity of the policy does not depend upon the literal truth of said assertion. Aetna Ins. Co. v. Simmons, 49 Neb. 811. We, therefore, hold that the statements made by Catherine A. Pollard in the certificate of good health in the case at bar are representations, and not warranties.\\nThe law is also well settled in this state that, in order to defeat a recovery because of representations made to the insurer alleged to be false, the insurer must prove that the representations are untrue, and were made by the assured knowingly with the fraudulent intent to mis lead and deceive, that they were material to the risk, and were relied on by the defendant. Aetna Life Ins. Co. v. Rehlaender, supra; Kettenbach v. Omaha Life Ass'n, 49 Neb. 842; Beeler v. Supreme Tribe of Ben Hur, supra. The jury passed upon these questions and found for the plaintiff below. Does the evidence sustain the verdict?\\nThe evidence shows that in September, 1930, the insured was ill with an attack of influenza from which she apparently recovered. From December 4, 1930, to December 20, 1930, she was in a hospital at Columbus, Nebraska, suffering from a heart ailment causing an impaired circulation. She was attended by Dr. Frank H. Morrow while at the hospital and was discharged therefrom by him on December 20, 1930, at which time he told her that he thought she was fully recovered. Dr. Morrow saw her again on January 22, 1931, and on February 1, 1931, and, while he advised her to continue the taking of medicine and to take care of herself, the record does not disclose that she was ever subsequently informed by Dr. Morrow that she was not fully recovered.\\nThe evidence further shows that, at the time Catherine A. Pollard sent the certificate of good health to the appellant, it was accompanied by a certificate signed by Dr. S. B. Koory of Schuyler, Nebraska, as follows: \\\"I hereby certify that I have carefully examined .into the physical condition of Mrs. Catherine A. Pollard herein named and find her to. be in good health this 20 day of Jan. 1931, and recommend her as being qualified to be reinstated to beneficial membership in the Royal Highlanders.\\\" This statement would have a tendency to assure Mrs. Pollard that she was not then afflicted with any disease or sickness from which she was not fully recovered. The evidence of the physicians was supported by members of the family of the deceased to the effect that the conduct and statements of Mrs. Pollard disclosed that she thought she was at that time fully recovered. Dr. W. E. Doane of North Bend, Nebraska, testified that he attended Mrs. Pollard on and after March 15, 1931, more than a month after her reinstatement, and that she was at that time ill with myocarditis and that her general condition was bad. Dr. Doane testified that Mrs. Pollard told him that she was in the hospital at Columbus and that she did not think she would get well. We are of the opinion that the evidence raises a question of fact for the jury to determine as to whether Mrs. Pollard made an untrue statement and whether she made it knowingly with intent to deceive. The jury having determined these facts under proper instructions of the court, they are conclusively established so far as this case is concerned. The evidence is sufficient to sustain the verdict.\\nWe find no error in the record, and the judgment of the trial court is therefore affirmed, with an allowance to appellees of $100 as an attorney's fee for services in this court to be taxed as part of the costs.\\nAffirmed.\"}"
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+"{\"id\": \"4668618\", \"name\": \"Northwestern Bell Telephone Company, appellant, v. Nebraska State Railway Commission, appellee\", \"name_abbreviation\": \"Northwestern Bell Telephone Co. v. Nebraska State Railway Commission\", \"decision_date\": \"1935-03-01\", \"docket_number\": \"No. 29312\", \"first_page\": \"447\", \"last_page\": 453, \"citations\": \"128 Neb. 447\", \"volume\": \"128\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:51:19.624845+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Good, Eberly, Day, Paine, and Carter, JJ., and Thomsen, District Judge.\", \"parties\": \"Northwestern Bell Telephone Company, appellant, v. Nebraska State Railway Commission, appellee.\", \"head_matter\": \"Northwestern Bell Telephone Company, appellant, v. Nebraska State Railway Commission, appellee.\\nFiled March 1, 1935.\\nNo. 29312.\\nF. E. Randall and Tracy J. Peycke, for appellant.\\nPaul F. Good, Attorney General, and Edwin Vail, contra.\\nHeard before Goss, C. J., Good, Eberly, Day, Paine, and Carter, JJ., and Thomsen, District Judge.\", \"word_count\": \"1879\", \"char_count\": \"11295\", \"text\": \"Goss, C. J.\\n\\u2022 This is an appeal from Nebraska state railway commission.\\nThe matter was initiated by an order made by the commission November 29, 1933, directing all class A telephone companies (those having average annual operating revenues exceeding $100,000) and class B telephone companies (those exceeding $50,000 and up to $100,000) to file with the commission, not later than March 1, 1934, a schedule of depreciation rates by primary accounts which they propose to apply for the year 1934, together with supporting data. Appellant is a class A company. It seasonably filed its return, but the commission, being dissatisfied, ordered the cause set for hearing March 19, 1934, for \\\"oral examination of the members of respondent's staff, who prepared said schedules, and for the introduction of such evidence as the commission may desire to submit with opportunity of objections and cross-examination by respondent.\\\" The record and bill of exceptions show that attorneys and witnesses of appellant appeared and a hearing was held, lasting two days, and the record thereof covering upwards of 200 pages. An inventory and cost engineer and the general auditor of appellant and an accountant for the commission were examined and various schedules, calculations and exhibits were introduced in evidence. At the conclusion of the oral hearing, the cause was \\\"submitted on the record,\\\" as appears both in the bill of exceptions and in the transcript of the pleadings, orders and filings.\\nOn April 9, 1934, the record shows an opinion, finding and order. The commission reduced appellant's proposed rate of 4.48 per cent, and entered an order fixing a depreciation rate of 31/2 per cent, upon depreciable property, including right of way, to be applied by the respondent for the year 1934.\\nAppellant presents four contentions:\\nFirst. That it was not given full notice of the scope of the hearing and full opportunity to make a defense in the 1934 depreciation rate; that therefore the order was void because it did not afford appellant due process of law under the state and federal Constitutions.\\nSecond. That, since appellant is engaged in both interstate and intrastate commerce, and the congress has committed the matter of uniform accounting of common carriers of interstate commerce, including telephone companies, to the interstate commerce commission, the state commission was without authority to act on matters of accounting even with respect to intrastate commerce.\\nThird. That the order is void because it is not based on evidence sufficient to support it, and is contrary to the evidence.\\nFourth. That the commission erred in denying the motion of appellant to vacate the order and to grant a hearing and a new trial.\\nThe Constitution and laws of Nebraska \\\"confer administrative and judicial powers upon the commission in addition to the main purpose of its creation, which is the exercise of legislative powers.\\\" Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245. The matter is not here for trial de novo, but for judicial review as to the legality of the order of which appellant complains. The appeal and procedure are provided for by section 75-505, Comp. St. 1929.\\nAs to the claim that appellant had no sufficient notice of the scope of the hearing, the record shows that it appeared and for two days participated in the hearings and furnished its schedules showing the rates of depreciation on various kinds of property owned and used by it. Some of these percentage rates were high and others low, depending upon the character of the property to which the schedules applied. From them the company arrived at a composite rate of depreciation of 4.48 per cent. The commission fixed a composite rate of 31/2 per cent. We are not afforded much help by the evidence or by the printed and oral arguments, in determining just how either the appellant or the commission reached their respective conclusions on this point. But when the record shows that all the evidence was taken that either party desired to offer and that the cause was submitted on the record without objections of any sort until after the decision, we think we ought not, in such a case, to reverse the action on the ground that, after the judgment was entered against a party, it can then claim it was taken by surprise as to the scope of the action. Indeed, even after the final order was entered, on the hearing of the motion for new trial, the parties stipulated (and it appears in the bill of exceptions) on May 15, 1934, for the admission of additional evidence. This was incorporated in the bill of exceptions in the form of a book of 101 pages on Uniform System of Accounts for Telephone Companies, issued by the interstate commerce commission in 1933. Until the motion for rehearing was filed, setting .up the points now relied on, the record does not show that the commission as a court had any notice that appellant was aggrieved by the procedure. The evidence shows that counsel for the telephone company at the outset of the hearing suggested names of parties having to do with the calculation of the rate. Most of these were examined at length in a hearing apparently conducted with all the formality of any court. It appears all through the evidence that what the commission and telephone company were seeking was the proper evidence upon which to base a proper rate of depreciation to be used by the commission in 1934 only. If the telephone company had offered or proposed to offer other or further evidence and had been refused the opportunity, it would have presented a different question than that now before us. We think appellant had timely notice of the scope of the hearing, appeared generally, and was afforded due process of law in the matter.\\n\\\"The due process provision of the Fourteenth Amendment has regard not to matters of form but to substance of right.\\\" Western Life Indemnity Co. v. Rupp, 235 U. S. 261.\\nParagraph 5, sec. 20, title 49, U. S. C. A. \\u2014 the interstate commerce act \\u2014 authorizes the interstate commerce commission, in its discretion, to prescribe the forms of all types of accounts to be kept by carriers and makes it unlawful for such carriers to keep any other forms of accounts than those prescribed by the commission. Appellant argues therefrom that it has no right to keep, or to be required by the state railway commission to keep, its accounts in the form prescribed by the state commission. We do not find that the interstate commerce commission has ever seen fit to act upon the question of the rate of de predation to be used in intrastate companies though they may do an interstate business. Even assuming that the congress has authorized such action (which we do not decide), and assuming that the ultimate decision would rest with the interstate commerce commission as to intrastate rates (which also we do not decide), and that the state railway commission would be bound by that decision, still, the federal commission not yet having acted upon the question, the state commission has the right to act until such time as the federal commission exercises its authority.\\nThe supreme court, Chief Justice Hughes writing the opinion, said in Smith v. Illinois Bell Telephone Co. (1930) 282 U. S. 133 (on p. 159) : \\\"The company urges that, as Congress has granted jurisdiction to the Interstate Commerce Commission over the depreciation rates of telephone companies doing an interstate business (Interstate Commerce Act, sec. 20 (5), as amended by Transportation Act (February 28) 1920, U. S. C. A. title 49, sec. 20 (5), this subject is now completely withdrawn from the power of the state. It is said that two rates of depreciation cannot be charged on the same property. The Interstate Commerce Commission has had the matter under consideration (Telephone and Railroad Depreciation Charges, 118 I. C. C. 328-333) but, so far as we are advised, a final determination has not yet been made. The Interstate Commerce Commission has its accounting rules with reference to depreciation charges and, pending its order under section 20 (5) of the Interstate Commerce Act, telephone companies, as well as others subject to the act, have been directed to continue to observe these requirements. The company argues that, although the Interstate Commerce Commission has not finally ruled, the action taken by Congress excludes the jurisdiction of state tribunals under familiar principles (citing cases). We are unable to assent to this view. As the Interstate Commerce Commission has not acted finally in the matter, we are not now called upon to consider the scope of its authority in relation to depreciation charges, but we are of the opinion that, in any event, until action has been taken which could be deemed validly to affect the amount to be charged to depreciation in connection with intrastate business so as to affect intrastate rates, the prerogative of the state to prescribe such rates, and the jurisdiction and duty of the statutory court in considering their validity to determine the amount properly allowable for depreciation in connection with the intrastate business, are not to be gainsaid. Compare Board of Railroad Commissioners v. Great Northern R. Co., 281 U. S. 412, 74 L. Ed. 936. Accordingly, the court should make appropriate findings with respect to the amount to be allowed in this case as an annual charge for depreciation in connection with the intrastate business.\\\" This case appears to be decisive authority on the precise point involved here.\\nAppellant relies upon Interstate Commerce Commission v. Goodrich Transit Co. (1912) 224 U. S. 194. That relates to an order of the interstate commerce commission \\\"prescribing the method of accounts and bookkeeping as to the operating expenses of the carriers\\\" of freight and passengers \\u2014 -in this case a steamship company operating on the Great Lakes. The commerce court had enjoined the operation of the rates as applied to intrastate business. The supreme court held the orders valid and reversed the cause. We think the case is not applicable here. If the interstate commerce commission had entered the field by prescribing depreciation rates for class A telephone companies to use in intrastate business, the principles of the cited case might be usable.\\nWhile we do not fully understand the logical processes by which appellant reached one rate and the appellee reached another rate of depreciation, yet, whether the rate here fixed is a legislative or judicial matter for the commission, it is, we think, a determination over which the commission had jurisdiction. It was for 1934 only and steps had already been taken to fix the rate for 1935. If the rate should prove to be confiscatory, if and when applied, it is quite likely the appellant will be able to discover a remedy. We think the evidence was sufficient to support the order. Finding no reversible error in the proceedings, the final order of the railway commission is\\nAffirmed.\"}"
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diff --git a/neb/4682801.json b/neb/4682801.json
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+"{\"id\": \"4682801\", \"name\": \"Fred Reitz, appellee, v. Earl R. Petersen et al., appellees: Flora Kruger, Administratrix, et al., appellants\", \"name_abbreviation\": \"Reitz v. Petersen\", \"decision_date\": \"1936-11-20\", \"docket_number\": \"No. 29758\", \"first_page\": \"706\", \"last_page\": 713, \"citations\": \"131 Neb. 706\", \"volume\": \"131\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:27:41.924940+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Good, Eberly and Carter, JJ., and Munday, District Judge.\", \"parties\": \"Fred Reitz, appellee, v. Earl R. Petersen et al., appellees: Flora Kruger, Administratrix, et al., appellants.\", \"head_matter\": \"Fred Reitz, appellee, v. Earl R. Petersen et al., appellees: Flora Kruger, Administratrix, et al., appellants.\\nFiled November 20, 1936.\\nNo. 29758.\\nKelsey & Kelsey and Jackson & Rice, for appellants.\\nMoyer & Moyer, R. J. Shurtleff and Hutton & Mueting, contra.\\nHeard before Goss, C. J., Good, Eberly and Carter, JJ., and Munday, District Judge.\", \"word_count\": \"2500\", \"char_count\": \"14047\", \"text\": \"GOSS, C. J.\\nThis is a controversy over the priority of mortgage liens on a quarter section of land. One of the defendants appeals because her mortgage was awarded second place instead of first.\\nThis suit was begun January 27, 1934, against Petersen and wife, the mortgagors, and against Flora Kruger, as administratrix of the estate of Emma L. Mueller, who had died. Plaintiff alleged that his lien was first and that of Emma L. Mueller, represented by defendant Kruger, was second. Plaintiff alleges estoppel against the Mueller mortgage. He alleges that Earl R. Petersen, the mortgagor, owning the south 100 acres of the quarter section, and desiring to purchase the north 60 acres from a third party, approached Mrs. Mueller, informed her of his situation and that it would be necessary for him to borrow enough to pay her off and $6,000 additional; that she said she had no place or investment in mind to use it, that the quarter section would be ample security for the whole sum of $13,000, that she would be willing to release her $7,000 mortgage and allow Petersen to borrow from some one' $6,000 on a first mortgage on the entire quarter section, and that she would accept a new mortgage of $7,000 to be expressly inferior and subsequent to the lien of a $6,000 loan to be obtained by Petersen. Whereupon Petersen, relying upon said agreement, made application to plaintiff for a loan of $6,000, representing to plaintiff that it would be secured by a first lien and that the $7,000 mortgage on the south 100 acres would be released by Mrs. Mueller; that when the transaction was consummated on March 1, 1930, the $7,000 new mortgage, drawn by the officers or employees of a bank, through inadvertence and mistake, did not expressly recite that it was inferior and subsequent to the $6,000 mortgage; that an officer or employee of said bank delivered the original $7,000 mortgage and a release thereof to Petersen with full knowledge that Petersen would exhibit said papers for the purpose of procuring a first mortgage loan from some person, and probably plaintiff, on the quarter section.\\nThe administratrix sets up Mrs. Mueller's mortgage, traverses the allegations of the petition, alleges that on March 1, 1930, that mortgage purported to be a first mortgage, and alleges that Petersen and wife are incompetent to deny that the Mueller mortgage is first. She further alleges that plaintiff or his agents acting for him discovered prior to March 5, 1930, that the Mueller mortgage was on record in the office of the register' of deeds prior to plaintiff's mortgage and by some means unknown to this defendant they caused the record to be changed so as to allow plaintiff's mortgage to be filed first. Defendant Kruger further alleges that the taking of the note \\u00e1nd mortgage by Mrs. Mueller on March 1, 1930, constituted merely an extension for the term of two years of the debt due her from Petersen; that this defendant is entitled in equity to a lien upon the south 100 acres by virtue of the original mortgage and is entitled to a lien upon the north 60 acres by virtue of the mortgage of March 1, 1930.\\nThe answers of Petersen and wife to the petition and cross-petition are general denials. Plaintiff filed a reply to the answer of the administratrix. It is chiefly an amplification of the allegations of the petition as to the issues of priority.\\nPrior to March 1, 1930, defendant Earl R. Petersen owned the south 100 acres of the quarter section involved and Mrs. Emma L. Mueller, of whose estate defendant Kruger is administratrix, held a $7,000 mortgage lien on that 100 acres. This mortgage was dated February 26, 1918, and was due March 1, 1933. It was released March 1, 1930. The release was recorded March 6, 1930, at 11 a. m.' On March 1, 1930, the north 60 acres of the quarter s\\u00e9ction was deeded to Petersen; that same day Peters\\u00e9n and wife made and delivered to Mrs. Mueller their mortgage on the entire quarter to secure loan of $7,000, and made and delivered to Reitz, plaintiff, their mortgage on the entire quarter section to secure a loan of $6,000. The $7,000 Mueller mortgage was actually filed for record in the office of the register of deeds of Madison county, Nebraska, on' March 3, 1930, at 9 a. m., and the $6,000 Reitz mortgage was actually filed for record in the office of the register of deeds of M\\u00e1dison county, Nebraska, on March 6, 1930, at 9 a, m.\\nThe note made by Petersen and wife to Mrs. Mueller for $7,000 on March 1, 1930, specifically states, and the statement is partly 'typewritten, as follows: \\\"This note is secured by first mortgage bn th\\u00e9 SW14 sec. 9,' town 23, range 4, in Madison' county, Nebraska.\\\" The $6,000 Petersen note to Reitz'does hot purport to be secured by a first mortgage on the land. That note contains the following: \\\"This note is secured by mortgage on the SW14 sec. 9, twp. 23, r. 4,' west, in Madison county, Nebraska.\\\"\\nThe Mueller mortgage was actually filed before plaintiff's mortgage. Neither mortgage contains any recital as to their priority. These facts of' record, considered alone, would make the Mueller mortgage a first lien on the quarter section. We must look 'to the other evidence to find justifi-.. cation for the judgment of the trial court giving plaintiff's mortgage priority.\\nE. H. Shumacher, 39, had been connected with the First National Bank of Tilden for 16 years and had been its cashier for six or seven years. He had known Mrs. Mueller about 10 years. She had a checking account, was a stockholder, and had a safe deposit box in the bank where she kept her papers and occasionally advised with the witness as to her business affairs. Probably not over 30 days prior to March 1, 1930, Mrs. Mueller-called the bank on the telephone and asked that the witness stop at her house, which he did when he went to dinner. We quote his exact language, when asked to' give their conversation: \\\"Mrs. Mueller said to me that Earl Petersen had called at her home and informed her he was buying sixty acres of land adjoining the one hundred acres that he already owned, the one hundred acres being covered by this $7,000 first mortgage, and that Mr. Petersen had asked her if she could furnish him with $6,000 additional funds as the purchase of this additional sixty acres involved about that amount; and that she had told Mr. Petersen that she didn't have the $6,000. Then Mr.' Petersen asked her if she would accept the payment of the $7,000 mortgage and that she said she would rather not. Then Mr. Petersen asked her if she would take a second mortgage subject to $6,000 on the entire one hundred and sixty acres, on the hundred acres that he already owned and the sixty acres that he was buying. Mrs. Mueller asked my advice concerning this transaction. I told her I would not consider doing that if I were her. Then she told me she had already informed Mr. Petersen she would make this kind of a deal with him. Of course, there was nothing further for me to advise her since she had already agreed to make the transaction. That was about all of the conversation.\\\"\\nThe witness further testified that the $7,000 mortgage of Earl R. Petersen and his wife, Olive A. Petersen, to Emma L. Mueller, dated March 1, 1930', was drawn up in his bank and their signatures were witnessed by him and he took their acknowledgment as a notary public in the bank on that day; that on the same day he witnessed the signature of Emma L. Mueller to her release of the 1918 mortgage for $7,000 on the 100 acres, which also was drawn in the bank on the same day and acknowledged before him as a notary public; that the original, or 1918, note and mortgage of the Petersens to Mrs. Mueller were stamped as paid by the bank's perforating stamp on the same day; that after the Petersen $7,000 mortgage to Mrs. Mueller was executed it was sent by the First National Bank to the register of deeds for record.\\nThe trial court held plaintiff's witnesses rather strictly to the rule that oral testimony could not be received from any witness having a direct legal interest as to any transactions or conversations with Mrs. Mueller. Comp. St. 1929, sec. 20-1202. As we try the case de novo here, we exclude all such testimony in instances where to consider it would violate that rule.\\nOn March 1, 1930, after the Mueller mortgage was sent to the register of deeds with no instructions, Shumacher wrote a letter to the register about that instrument, but he was not permitted to go further in his testimony than to identify his signature. However, Rose K. Brogan, the register of deeds, who was called by defendant Kruger as a witness, testified that she had received in the 9 o'clock morning mail .on March 3, 1930, the Mueller mortgage and had filed it as of 9 a. m. that day. Then in the next mail of the same day she received a letter, which is in the record, from E. H. Shumacher, cashier of the First National Bank of Tilden, dated March 1, 1930, telling the register of deeds that \\\"Today we sent you for record a mortgage of $7,000, Earl R. Petersen to Emma L. Mueller. You will also receive for record, probably from the Tilden National Bank, a mortgage from Mr. Petersen to another party covering the same land. Please record the $6,000 mortgage first as the mortgage we sent you is intended as a second mortgage.\\\" Not having then received the $6,000 mortgage, Mrs. Brogan testified she called the Tilden National Bank and asked them if it was true that the Mueller mortgage she had was to be a second mortgage and if they had a $6,000 mortgage which was to be a first mortgage. They said it was true, that the $6,000 mortgage was in the mail and if she would call Moyer & Moyer they perhaps would have it by that time. She then called Earl Moyer. As a result of the information she obtained through the Shumacher letter, of the information she obtained from the Tilden National Bank, and of the information she obtained from Moyer, she changed the filing date of the Mueller mortgage so as to show the Reitz mortgage to be first, when it was actually received for filing on March 6, 1930, and the Mueller mortgage to be second, also as of March 6, 1930. Of course, she was not authorized to make this change and it was ineffective, of itself, to fix the priority of the mortgages.\\nSection 76-217, Comp. St. 1929, requires such instruments to be considered recorded as of the time when delivered to the register of deeds for that purpose. Judkins-Davies v. Skochdopole, 122 Neb. 374, 240 N. W. 510, is authority for a rule that the mere fact that a mortgage was first received for record by the register of deeds under section 76-217, Comp. St. 1929, does not prevent a mortgage received for record later being awarded priority when shown by competent evidence to have been intended by all parties in interest to be prior. Along with other evidence, oral evidence of intent of the parties was considered in deciding the priority.\\nIn the case at bar the intent of Mrs, Mueller is shown a short time before the deal was closed to have, been to take a second mortgage on the quarter section in place of her then existing mortgage on 100 acres. She must have known and realized that her decision to do this would take a few weeks for Petersen to act upon and to bring it to completion. When she consulted Shumacher as her banker and he advised against it, she was resolute and decisive about it. She announced to him that she had agreed with Petersen to do it and intended to make the change in her security. When the time came to close the transaction she was present and did her part. It was no fault of her's nor of Petersen that the contract was not so stated that, after she was dead, there would be no power to. defeat the record made by them in their written instruments. That was the fault of inept, conveyancing. This, however, was worth all it cost, which,' according to the record, was evidently nothing. At least plaintiff testified that no charge was made him.\\nIntent is a fact. \\\"A fact, relation or state of things once shown to exist may be presumed to continue until th.e contrary appears.\\\" Lincoln Joint Stock Land Bank v. Bexten, 125 Neb. 310, 250 N. W. 84. That, of course,, is a general statement. When applied to a fact on oral- agreement of parties, such as is involved here, it probably should be re-, stricted to this \\u2014 that such a fact or agreement is presumed to continue at least for the ordinary time it would take to carry it into effect. See 9 Ency. of Evidence, 906 et seq. The evidence of the agreement here produced through Shumacher, a competent witness, shows that Mrs. Mueller, by her own admission, had agreed with Petersen that she would subordinate her mortgage to a first mortgage to be secured by him elsewhere. She was a woman of character and was resolute in her adherence to her promise. When the time came to carry it out she cooperated with Petersen in doing so. As far as either of them knew, the agreement had been fully performed. That it was not efficiently done was not their fault but an oversight of the agencies they employed. She delivered all papers executed or held by her and he did likewise. She took her new mortgage and held it to the date of her death in the belief that she had done exactly as she had promised and that Petersen had done the same. In such a case it may well be said that the fact, the relation of the parties, the state of things proved through Shumacher's evidence, continued to exist. That presumption has not been overcome by evidence. This bound her in her lifetime and binds her administratrix.\\nThe conclusion we have reached makes it unnecessary to decide any other point raised by the parties. The judgment of the district court is\\nAffirmed.\"}"
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+"{\"id\": \"4684996\", \"name\": \"Louis H. Schmidt, appellant, v. Julius O. Schmidt, Executor, appellee\", \"name_abbreviation\": \"Schmidt v. Schmidt\", \"decision_date\": \"1936-07-08\", \"docket_number\": \"No. 29692\", \"first_page\": \"478\", \"last_page\": 484, \"citations\": \"131 Neb. 478\", \"volume\": \"131\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:27:41.924940+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Goss, C. J., Good, Eberly, Day and Carter, JJ., and Kroger and Irwin, District Judges.\", \"parties\": \"Louis H. Schmidt, appellant, v. Julius O. Schmidt, Executor, appellee.\", \"head_matter\": \"Louis H. Schmidt, appellant, v. Julius O. Schmidt, Executor, appellee.\\nFiled July 8, 1936.\\nNo. 29692.\\nMockett & Finkelstein and Raymond B. Morrissey, for appellant.\\nCharles A. Dafoe, contra.\\nHeard before Goss, C. J., Good, Eberly, Day and Carter, JJ., and Kroger and Irwin, District Judges.\", \"word_count\": \"1991\", \"char_count\": \"11053\", \"text\": \"Kroger, District Judge.\\nIda P. E. Schmidt, a resident of Johnson county, Nebraska, hereinafter referred to as the mother, departed this life testate, in December, 1933. She left surviving six sons, Edward A., Gustav J. R., Hugo J., Alfred W., Julius O., and Louis H. The son Louis, hereinafter referred to as the son, brought an action in the county court of Johnson county, Nebraska, to construe section four of the last will and testament of his mother, and to eliminate a part of said paragraph, on the ground that it had been revoked by implication, and for the further reason that there had been a settlement of the indebtedness mentioned in paragraph four, so that said paragraph was no longer operative as to him. From an adverse ruling by the county court, the son appealed to the district court, and from a judgment of the district court denying the relief prayed for brings the matter to this court for an interpretation of said section four.\\nThe will was executed on November 20, 1931, and paragraphs three and four thereof read as follows:\\n\\\"Third. I give, bequeath, and devise to my children, Edward A. Schmidt, Gustav J. R. Schmidt, Louis H. Schmidt, Hugo J. Schmidt, Alfred W. Schmidt, and Julius O. Schmidt, all of the residue and remainder of my property, both real and personal, of every nature.\\n\\\"Fourth. I further provide that in consideration of above bequest and devise that there shall be deducted from each share of each of my said children any money that has been paid out by me for any such child or shall have been ad vanced to him by me, or that any child shall owe me at the time of my death, whether said money so owed to me or advanced by me shall be legally collectible, or shall be outlawed.\\n\\\"At the present time Edward A. Schmidt owes me the sum of Six Hundred and no/100 Dollars; Gustav J. R. Schmidt owes me the sum of Thirteen Hundred Thirty-five and jio/100 Dollars; and Louis H. Schmidt the sum of Twelve Thousand'Seventy-three and 4/100 Dollars; and Hugo J. Schmidt owes me on rent on farm occupied by him owned by me, and I am on a security note for him for Eleven Hundred and no/100 Dollars.\\n\\\"I further provide that in the event that my said son, Louis H. Schmidt, shall pay off the mortgage and all charges that may be against the southeast quarter of section two (2), in township five (5), range eleven (11), east of the Sixth Principal Meridian in Johnson county, State of Nebraska,. and shall pay the above Twelve Thousand Seventy-three and 4/100 Dollars, together with interest at the rate of 5 per cent, per annum on said Twelve Thousand Seventy-three and 4/100 Dollars from this date, then I devise said land so described to the said Louis H. Schmidt.\\\"\\nIt appears from the evidence that, in 1919, Louis H. Schmidt purchased the southeast quarter of section two, township five, range eleven, east of the sixth P. M., in Johnson county, Nebraska, and at the time of purchase obtained $13,500 from his mother to apply on the purchase price. To obtain this money, the mother gave a mortgage on lands owned by her. The .son secured the $13,500 advanced by the mother by a second mortgage on the land purchased by him, subject to a first mortgage of $10,000 in favor of the Federal Land Bank. In 1924 the Federal Land Bank loan was increased to $15,000, and the mother's second mortgage for $13,500 was subordinated to that. In 1927 the son was adjudged a bankrupt, and in the bankruptcy proceedings the mother filed a secured claim based on the mortgage and notes held by her. In 1929 the mother obtained a deed from the trustee in bankruptcy to the real estate on which she held the second mortgage, in consideration of the payment of $25 to said trustee, and a short time later the son and his wife executed and delivered to the mother a quitclaim deed to said premises. The son and Anna Schmidt, his wife, remained in possession of said premises as tenants of the mother until the spring of 1932, having agreed to pay a rental of $2,000 a year for said premises. Default having been made in some of the rental payments for the years 1930 and 1931, notice was served upon the tenants in the fall of 1931 to vacate on March 1, 1932. On March 1, 1932, the mother sold the land to John and James Sedlacek for the sum of $16,000, and agreed to deliver possession on March 15, 1932. When the time came to deliver possession, the son and his wife, Anna Schmidt, refused to vacate. At this time they were owing their mother on back rentals approximately $1,100 and a balance of $400 on a note for $500 given to the mother for money borrowed. During this time there were negotiations between the parties looking towards an amicable adjustment of their affairs and under date of March 11, 1932, the mother's attorney wrote a letter to the son's attorneys in which he recited the indebtedness of the son and his wife to the mother on account of past-due rent and the $400 balance due on the note given for money borrowed, and further stated that the mother would cancel \\\"all the obligations to her from Anna Schmidt and Louis H. Schmidt\\\" in return for a note for $250 due in nine months bearing 8 per cent, interest and a note of $400 due in two years bearing 2 per cent, interest. On the evening of March 16, 1932, the son and his wife went to the home of the*' mother, where there were present, in addition to the parties named, the mother's attorney and another son, and there a further discussion was had and a settlement arrived at, as a result of which the son and' his wife executed two notes, one for $250 and one for $400 and received in return the rental notes held by the mother for the years 1930 and 1931 and the $500 note given for money borrowed. Immediately thereafter the son and his wife vacated the premises theretofore occupied by them and surrendered possession thereof to the mother. In completing the sale of the property to the Sedlaceks, the mother released the mortgage of $13,500 which she held on the land, and the release recites that it was in consideration of the payment of the debt secured.\\nIt is appellant's contention that, notwithstanding the deed from the trustee in bankruptcy and the quitclaim deed from the son and his wife to the mother, the son was the owner of the land at all times and that the mother's only interest therein was that of a mortgagee; that the mother, on March 15, 1932, elected to take the land and cancel the. indebtedness and that in the settlement of March 16, 1932, there was a full and complete settlement of all indebtedness of the son and the son's wife to the mother; that the sale to the Sedlaceks and the release of the mother's mortgage by her was an election on her part to so treat the matter and that consequently the provision of the will establishing a charge of $12,073.04 against the son's share of estate was revoked.\\nAs we view the record, the evidence does not sustain appellant's position. The mother acquired title to the land from the trustee in bankruptcy and so far as the record shows never parted with it thereafter until she made the sale to the Sedlaceks. She dealt with appellant and his wife on the basis of landlord and tenant. While it is true that the rent paid by appellant and his wife appears to be greatly in excess of the fair rental value of the premises, the probabilities are that the son felt that, having induced his mother to encumber her own land to the extent of $13,500 in order to assist him, he was in duty bound to p*ay the interest on that loan in addition to the necessary interest payments on the loan on the land occupied by him. This, no doubt, accounts for the figure agreed upon as rental. As we view the evidence, the settlement of March 16, 1932, had reference only to the delinquent rentals and the balance due on the $500 note representing moneys borrowed, and that neither the mother nor the son considered the amount due the mother on the $13,500 mortgage as being included or involved in that transaction. Appellant stresses the letter of the mother's attorney written under date of March 11, 1932, in which the words \\\"In short, Mrs. Ida P. E. Schmidt agrees to cancel all the obligations to her from Anna Schmidt and Louis H. Schmidt\\\" were used, and insists that this discloses an intention to cancel the amount due the mother on the mortgage as well as the back rentals and other obligations. That this was not the intention of the mother is supported by the fact that in the same letter the mother's attorney specifically mentions the rent notes and the $500 note for money borrowed, but nowhere makes mention of the $13,500 mortgage, and the further fact that on the evening of March 16, 1932, the mother surrendered to the son the rent notes and note' for money borrowed, but did not surrender the notes representing the $13,500 obligation. Nor is there any merit in appellant's contention that by the execution of the release of mortgage the mother acknowledged payment in full of the debt due her. This release was executed for the purpose of relieving the land from the lien of the mortgage and to give the purchaser a title free from the same and there is nothing in that transaction that is inconsistent with the provision in the will that the balance due the mother on that mortgage be deducted from the son's share.\\nTo place the construction which appellant now contends for on the acts of the parties would be to impute to the mother an intention to give the appellant a preference over his other brothers and relieve him from repaying any of the advancements made to him by his mother, yet at the same time require the other brothers to repay the advancements which had been made to them, notwithstanding the fact that the advancements to appellant were greatly in excess of all other advancements combined. Such an intention on the ' part of the mother is inconsistent with her expressed desire that all of her children should be treated alike.\\nThis court has repeatedly held that in construing a will the object and purpose of the court is to carry out and enforce the true intentions of the testator as shown by the will itself, and in light of the circumstances under which it was made. Luenenborg v. Luenenborg, 128 Neb. 624, 259 N. W. 649; Worley v. Wimberly, 99 Neb. 20, 154 N. W. 849.\\nApplying that test to the will before us, we find that it was the mother's intention that all of her children be equal participants in her bounty and that any advancements made by her to any of her children should be deducted from their share, and that there was no such change in the plan adopted by testatrix as would defeat her purpose and imply an intention on her part to revoke a portion of her will.\\nIt follows that the judgment of the district court was right and the same is\\nAffirmed.\"}"
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+"{\"id\": \"4742221\", \"name\": \"Hulda Burhoop, appellee, v. Wayne Brackhan, appellant\", \"name_abbreviation\": \"Burhoop v. Brackhan\", \"decision_date\": \"1957-04-19\", \"docket_number\": \"No. 34094\", \"first_page\": \"382\", \"last_page\": 397, \"citations\": \"164 Neb. 382\", \"volume\": \"164\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:48:29.089610+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"parties\": \"Hulda Burhoop, appellee, v. Wayne Brackhan, appellant.\", \"head_matter\": \"Hulda Burhoop, appellee, v. Wayne Brackhan, appellant.\\n82 N. W. 2d 557\\nFiled April 19, 1957.\\nNo. 34094.\\nWallace W. Angle, for appellant.\\nKirkpatrick & Dougherty, for appellee.\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"word_count\": \"5233\", \"char_count\": \"29519\", \"text\": \"Wenke, J.\\nThis is an appeal from the district court for York County. It involves an action wherein Huida Burhoop sued Wayne Brackhan to recover damages resulting from injuries which she allegedly suffered in a car accident which, she claims, resulted from negligent conduct on the part of Brackhan. A jury returned a verdict in favor of Brackhan. Plaintiff thereupon filed a motion to set aside this verdict and for a new trial. The trial court sustained this motion, set aside the verdict, and granted plaintiff a new trial but gave no reason for doing so. It is from this order that this appeal was taken.\\nFor convenience we shall herein refer to the parties as they appeared in the district court, that is, to appellant as defendant and to appellee as plaintiff.\\nThe rule applicable here is stated in Gain v. Drennen, 160 Neb 263, 69 N. W. 2d 916, as follows: \\\"In an action where the trial court has sustained a motion for a new trial without assigning reasons therefor, appropriate procedure on appeal is for the appellant to bring the record here with an assignment that the court erred in granting a new trial and submit it for critical examination. The duty then devolves upon the appellee to point out the prejudicial error which he contends justifies the granting of a new trial.\\\"\\nIn this respect we said in Anderson v. Nielsen, 162 Neb. 110, 75 N. W. 2d 372, that: \\\"Where a party has sustained the burden and expense of a trial and has succeeded, in securing the judgment of a jury on'the facts in issue,'he. has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it w;as secured.\\\"\\nPlaintiff primarily contends the trial court erred in failing to take all questions of negligence away from the jury and submitting only the issue as to the amount of damages on the basis th\\u00e1t defendant was, as a matter of law, guilty of negligence which was a proximate cause of the accident and resulting injuries to her;-\\nIt is true, as plaintiff contends, that she was, at the time \\u2022 of the accident, riding as a guest in a car being driven by her daughter, Gladys Naber, and consequently any negligence of her daughter could not be imputed to her. See Remmenga v. Selk, 150 Neb. 401, 34 N. W. 2d 757. Nor, under the factual situation as developed by the evidence adduced, can it be said she could 'be found guilty of any conduct constituting negligence which contributed to the accident and resulting injuries. See Bartek v. Glasers Provisions Co., Inc., 160 Neb. 794, 71 N. W. 2d 466. As stated in Bartek v. Glasers Provisions Co., Inc., supra: \\\"Ordinarily, the guest passenger in an automobile has a right to assume that the driver is a reasonably safe and careful driver;, and the duty to warn him does not arise until some fact or situation out of the usual and ordinary is presented.\\\"\\nIf, as plaintiff contends, defendant was guilty of any negligence that was a proximate cause of the accident then he could be liable for, as stated in Stark v. Turner, 154 Neb. 268, 47 N. W. 2d 569: \\\"Where the independent tortious acts of two persons combine to produce an injury indivisible in its nature, either tortfeasor may be held for the entire damage \\u2014 not because he is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury.\\\" See, also, O'Neill v. Rovatsos, 114 Neb. 142, 206 N. W. 752; Daniel- sen v. Eickhoff, 159 Neb. 374, 66 N. W. 2d 913; Fick v. Herman, 161 Neb. 110, 72 N. W. 2d 598.\\n\\\"Negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do something which an ordinarily prudent person would have done under the same or similar circumstances.\\\" Shupe v. County of Antelope, 157 Neb. 374, 59 N. W. 2d 710.\\n\\\"Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred.\\\" Shupe v. County of Antelope, supra.\\nThe trial court submitted the issue, pleaded by the defendant, that any injuries or damages sustained by plaintiff were solely and proximately caused by negligent acts of Gladys Naber, the driver of the automobile in which plaintiff was riding as a guest. If there is evidence to support this issue then, of course, it was proper for the court to submit it and, based thereon, it would be proper for a jury to find for defendant. See, Bergendahl v. Rabeler, 133 Neb. 699, 276 N. W. 673; Shiers v. Cowgill, 157 Neb. 265, 59 N. W. 2d 407; Ricker v. Danner, 159 Neb. 675, 68 N. W. 2d 338. As stated in Bergendahl v. Rabeler, supra: \\\"Where the negligence of the driver of an automobile in which plaintiff is riding as a passenger is the sole proximate cause of a collision in which plaintiff'is injured, plaintiff cannot recover from a third person for such injury.\\\"\\n\\\"In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.\\\" Remmenga v. Selk, supra. The same would be true with reference to a motion for a directed verdict or for judgment notwithstanding the verdict. See Stark v. Turner, supra.\\n\\\"Where different minds may draw different conclusions from the evidence in regard to negligence, the question should be submitted to the jury.\\\" Griess v. Borchers, 161 Neb. 217, 72 N. W. 2d 820.\\n\\\"If there is any evidence which will sustain a finding for the party having the burden of proof in a cause the trial court may not disregard it and direct a verdict against him.\\\" Long v. Whalen, 160 Neb. 813, 71 N. W. 2d 496.\\n\\\"The verdict of a jury, based on conflicting evidence, will not be disturbed unless clearly wrong.\\\" Griess v. Borchers, supra.\\nIt is only \\\"Where the verdict of a jury is clearly against the weight and reasonableness of the evidence, (that) it will be set aside and a new trial granted.\\\" Bentley v. Hoagland, 94 Neb. 442, 143 N. W. 465. See, also, Stewart v. City of Lincoln, 114 Neb. 362, 207 N. W. 511.\\nThe accident wherein plaintiff was injured happened sometime between 4:45 and 5:30 p.m. on Monday, August 24, 1953, in the intersection of two country roads at a point 1 mile west and 2 miles south of Waco, in York County. It occurred when the front of a 1950 Tudor Ford, being driven by defendant, ran into the left side of a 1949 Buick sedan, being driven by Gladys Naber and in which plaintiff was riding as a guest. As a result of the impact the Ford came to an immediate stop, although the front end thereof was shoved toward the east. It remained upright and came to a stop, facing southeast, at a point in about the center of the intersection. The defendant was not hurt. The Buick, after the impact, continued on in a southeasterly direction some 54 feet and finally stopped in the ditch at the southeast corner of the intersection. It came to rest on its top with the front end facing to the north-northeast. It was in the ditch located along the south side of the east-west road. Plaintiff was thrown out of the car and apparently severely injured.\\nThe roads creating the intersection were of equal dignity, -the intersection being unprotected by signs of any kind. Just south of the intersection, on the east side of the traveled portion of the north-south road, was a sign advising the traveling public that the road to the south of the intersection was closed. However, the road to the south was not completely unusable and that fact was known to the defendant. The roads were dry, the sun was shining, and visibility was good.\\nDefendant, at the time, was driving south on the north-south road. This road is graveled north of the intersection. It had a 17-foot surface for travel on which the public had been driving down the center; Gladys Naber, at the time, was driving east on the east-west road. This road is graveled west of the intersection. It had a 16-foot surface for travel on which the public had been driving down the center. To the northwest of the intersection was a cornfield some 5 to 6 feet in height and at the corner were weeds some 4 to 5 feet in height. This created a blind northwest corner of which fact both drivers were fully aware, both being familiar with the road. However, back some 200 feet north of the intersection on the north-south road was a knoll from which cars could be observed traveling on the east-west road west of the intersection. From this knoll the north-south road slopes down slightly to the intersection. Likewise there is a knoll west of the intersection on the east-west road from which cars could be observed traveling on the north-south road north of the intersection. It is back about 500 feet. From this knoll the east-west road slopes down toward the intersection at about 20 degrees.\\nGladys Naber, driver of the Buick, testified that as she approached the intersection from the west she was traveling between 35 and 40 miles an hour at the knoll some 500 feet to the west of the intersection; that she was familiar with the road and knew the intersection was dangerous so slowed her speed as she approached it but did not apply her brakes; that she did not think anybody would be coming very fast from the north because of the fact that the road to the south was closed; that as she approached and entered the intersection at 30 miles an hour she first looked to the east and saw nothing, then looked to the south and saw the \\\"road closed\\\" sign of which she had previous knowledge, and then looked to the north when she saw the defendant's car just as it was about to hit her car; and that the car she was driving was hit on the left side when she was over half way across the intersection. She also testified she looked to her left, or north, when she first approached and entered the intersection but saw nothing coming from that direction.\\nDefendant testified that as he approached the intersection from the north he was traveling about 40 miles an hour as he came over the knoll; that he was intending to cross the intersection and go on south; that when he was about 140 to 150 feet from the intersection he was looking to the west and thought he saw a car or something on the west road; that he was then going about 35 miles an hour; that he immediately applied his brakes; that his car, including the brakes, was in good mechanical condition; that the application of his brakes caused the tires of his car to skid on the gravel; that he kept his brakes on and kept looking for the car on the west road; that he continued to look to the west and when he reached a point some 30 to 40 feet north of the intersection he thought he saw a car some 50 feet or so west of the intersection; that as he reached a point where he could see past the weeds located in the northwest corner he saw the Buick; that he continued to apply his brakes; that his car entered the' intersection at a very reduced speed but he could not get it completely stopped before it hit the left side of the Buick at about the center thereof, although he had skidded his tires up to the point of impact, a distance' of some 92 feet; that his car had very little forward movement at the time the impact occurred; that the front of his car was shoved to the left as a result of the impact, but remained upright; and that it came to a stop a little past (south) the center of the intersection, facing southeast.\\nIt is the plaintiff's thought that since the Buick approached the intersection from the right, and since the defendant admits it approached and entered the intersection first, that therefore the driver of the Buick had the right-of-way and defendant was guilty of negligence as a matter of law which was a proximate cause of the accident when he entered the intersection and ran into the side of the Buick car. It is true that defendant admitted the Buick was first in the intersection, although he also testified that the car he was driving was first to enter the intersection. There- were facts and circumstances testified to that would justify a jury in finding that defendant's car entered the intersection first. However, for the purpose of the following discussion, we shall assume that the driver of the Buick had the right-of-way.\\n\\\"In an action for damages for negligence the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.\\\" Hansen v. Henshaw, 163 Neb, 191, 79 N. W. 2d 15.\\nEven though the driver of a car has the right-of-way at an intersection he still has duties in regard to other cars which are approaching and entering it at about the same time.\\n\\\"A motorist entering an intersection from the right is in a favored position and has the right-of-way, other things being equal, but such fact does not do away with the duty of the driver of the favored car to exercise ordinary care to avoid an accident.\\\" Wendel v. Carlson, 162 Neb. 742, 77 N. W. 2d 212.\\n\\\"The driver of an automobile, upon reaching an in tersection, has the right of way over a vehicle approaching on his left, and may ordinarily proceed to cross; but if the situation is such as to indicate to the mind of an ordinarily prudent person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent accident, even to the extent of waiving his right.\\\" Thrapp v. Meyers, 114 Neb. 689, 209 N. W. 238, 47 A. L. R. 585.\\nWhen a driver of an automobile approaches or enters an intersection of two roads he is obliged to timely look for approaching vehicles and to see those within that radius which denotes the limit of danger. Kohl v. Unkel, 163 Neb. 257, 79 N. W. 2d 405; Elliott v. Swift & Co., 151 Neb. 787, 39 N. W. 2d 617.\\n\\\"The duty of the driver of a vehicle about to enter a street intersection to look for vehicles approaching the same intersection implies the duty to see that which was in plain sight, unless some reasonable excuse for not seeing is shown.\\\" Bergendahl v. Rabeler, supra. See, also, Evans v. Messick, 158 Neb. 485, 63 N. W. 2d 491.\\n\\\"One is required only to have his car under such reasonable control as to be able to avoid a collision with other vehicles whose drivers exercise due care. Complete control which is such as will prevent collision by the anticipation of negligence on the part of another in the absence of warning or knowledge is not required.\\\" Greyhound Corp. v. Lyman-Richey Sand & Gravel Corp., 161 Neb. 152, 72 N. W. 2d 669.\\n\\\"Users of the highway are required to exercise reasonable care. What is reasonable care must in each case be determined by its own peculiar facts and circumstances.\\\" Lammers v. Carstensen, 109 Neb. 475, 191 N. W. 670.\\nWe find the evidence adduced does not, as a matter of law, establish that defendant was negligent in the operation of his car. Under the facts disclosed by the record we think that reasonable minds could differ as to whether or not he was negligent and, if so, whether or not such negligence was a proximate cause of the accident. In view thereof both are issues for the jury and the trial court was correct in submitting them.\\nThe defendant pleaded that plaintiff's injuries were caused by negligent acts of Gladys Naber which were the sole and proximate cause thereof, setting out six specific items of negligence of which he claims she was guilty and which he claims were the proximate cause of the accident. The trial court submitted this issue, and we think properly in view of the evidence adduced, although we do not approve the instruction by which it was done.\\nInstruction No. 2 presented the issue of sole proximate cause, as pleaded, to the jury. It is as follows: \\\"Defendant filed an answer in which he denied every material allegation in said petition and in which he alleged that any injuries or damages sustained by plaintiff were solely and proximately caused by the negligent acts of Gladys Naber, the driver of the automobile in which plaintiff was riding in that: 1. She failed to keep and maintain a proper lookout as she approached said intersection. 2. That she failed to keep her automobile under control. 3. That she was familiar with the road upon which she was traveling as well as the said intersection and knew or should have known that the intersection which they were about to enter was obstructed by weeds and growing corn but that despite such knowledge she failed to slacken the speed of her automobile as she approached said intersection or to make any observation of defendant's automobile until it was in the intersection itself. 4. That she operated her automobile at such a high, careless and negligent rate of speed that she could not control it nor stop nor turn aside in an attempt to avoid an accident with the automobile driven by defendant. 5. That she failed to grant defendant the right-of-way across the intersection, the defendant being in the intersection first. 6. That said accident was due entirely to the negligent conduct of the driver of the car in which plaintiff was riding and was unavoidable insofar as the defendant is concerned. The defendant therefore asks that the petition of plaintiff be dismissed and her claims be denied.\\\"\\nBy instruction No. 5 the trial court advised the jury that the issue of sole proximate cause of the accident, as it relates to Gladys Naber, was an affirmative defense and in order for the defendant to relieve himself of liability by reason thereof the burden of proof was upon him to prove that fact by the greater weight of the evidence. It is not an affirmative defense. See, Umberger v. Sankey, 151 Neb. 488, 38 N. W. 2d 21; Styskal v. Brickey, 158 Neb. 208, 62 N. W. 2d 854; Harding v. Hoffman, 158 Neb. 86, 62 N. W. 2d 333. As stated in Styskal v. Brickey, supra: \\\"Such defense is not an affirmative plea in avoidance of appellee's cause of action and imposes no burden of proof upon appellant with relation thereto but is one entirely consistent with and provable under the general issue. However, some place in the instructions the jury should be advised that if it should find the sole proximate cause of the accident in which appellee was injured was the negligence of the driver of the car in which she was riding then its verdict should be for the appellant.\\\"\\nAlthough the court was in error in placing this burden on defendant it could work no prejudice to the plaintiff and consequently she is not in a position to complain thereof.\\nIn relation to the six specifications of negligence which defendant alleged Gladys Naber was guilty of they must each find support in the evidence or otherwise it was prejudicial error for the court to have submitted them for, as stated in Koehn v. City of Hastings, 114 Neb. 106, 206 N. W. 19: \\\"In stating the issues of fact in its charge to the jury, the court should submit to the jury only such issues as are presented by the pleadings and are in controversy, and which find some support in the evidence.\\\" We shall therefore examine the record with reference to each of the specifications of negligence set out in instruction No. 2 to see if there was any evidence adduced to justify their submission.\\nSpecification No. 1 relates to a failure on the part of Gladys Naber to- maintain and keep a proper lookout as she approached the intersection. The evidence justifies the submission of this contention for a jury would be justified in finding that she did not.\\nSpecification No. 2 relates to her failure to keep her automobile under control. Considering the circumstances of where and how the accident happened, the speed of her car, and the question of her maintaining a proper lookout, we think a jury would be justified in finding that she did not keep her automobile under control as she approached and entered the intersection.\\nSpecification No. 3 relates partly to specification No. 1 and partly to the speed of her car as it approached and entered the intersection, describing it. We think a jury would be justified, in view of the evidence adduced, in finding she was negligent in entering this intersection at the speed she did and in failing to slacken her speed below 30 miles an hour as she did so.\\nSpecification No. 4 relates to the rate of speed at which she approached and entered the intersection and her inability, because thereof, to control, stop, or turn aside her car in time to avoid the accident. We think the record justifies the submission of this specification. As stated in Tews v. Bamrick, 148 Neb. 59, 26 N. W. 2d 499: \\\"What is a reasonable speed is necessarily largely dependent on the situation and the surrounding circumstances, it being obvious that a speed which would be safe, reasonable, and proper in some places and under some circumstances might be highly dangerous, unreasonable, and improper in other places and under other circumstances.\\\"\\nAnd in Davis v. Dennert, 162 Neb. 65, 75 N. W. 2d 112, we said: \\\"The lawfulness of the speed of a motor vehicle within the prima facie limits fixed is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.\\\"\\nPlaintiff complains primarily of the giving of specification No'. 5 because, as she contends, defendant admitted on cross-examination that the Buick entered the intersection first. It is true that defendant so testified but he also testified otherwise and the physical facts, as well as the circumstances disclosed by other evidence adduced, support the latter. We think, in view of this situation, it was a question for the jury to determine as to which car actually entered the intersection first and had the right-of-way and that defendant was not conclusively bound as to that issue by the one statement he made. Nama v. Shada, 150 Neb. 362, 34 N. W. 2d 650; Kipf v. Bitner, 150 Neb. 155, 33 N. W. 2d 518; Rueger v. Hawks, 150 Neb. 834, 36 N. W. 2d 236. We think the correct rule is stated in 169 A. L. R. under the annotation of \\\"Binding effect of party's own unfavorable testimony\\\" under IV b, at page 805, as follows: \\\" where the more favorable evidence relied on by a party to overcome the effect of his own self-injurious statement is in his own testimony, no distinction is drawn as compared with the situation where the curative evidence is from other witnesses. It is still for the trier of fact to decide the issue upon all the evidence.\\\" Insofar as our holding in McCleneghan v. Powell, 105 Neb. 306, 180 N. W. 576, is in conflict therewith the same is overruled.\\nSpecification No. 6 is merely a conclusion and, in fact, states the issue of sole proximate cause as pleaded, that is, it states the accident was due entirely to negligent conduct on the part of Gladys Naber and unavoidable insofar as the defendant was concerned. We do not think it should have been given in this form as it really relates itself to no specific conduct on the part of Gladys Naber to which the jury could direct its attention insofar as her conduct being negligent is concerned. As stated in Parker v. Womack, 37 Cal. 2d 116, 230 P. 2d 823: \\\" if the accident was inevitable or unavoidable that is the same thing as to say that the defendant was not negligent, or that his negligence, if any, did not cause the accident. In other words, it is to say that the plaintiff has failed in his proof.' (Jolley v. Clemens, 28 Cal. App. 2d 55, 72, 73 (82 P. 2d 51) .)\\\" However, we do not think it was prejudicial in view of our holding as to specifications Nos. 1 and 5, both inclusive.\\nPlaintiff complains of instruction No. 17 given by the trial court. This instruction relates to the duty of one reaching an intersection and having the right-of-way. It properly states the rule in regard thereto as we have hereinbefore set out the duties under such circumstance. Under the factual situation disclosed by the evidence adduced the jury could find it had relation to either Gladys Naber or defendant and it is so worded. We do not think the fact that the masculine pronoun was used in any way limits the application thereof since the language used is general in its nature.\\nPlaintiff complains of the court's instruction No. 11 which relates to speed. The complaint is that the instruction does not include all of the elements of statutory provisions with reference thereto and all limitations thereon. We think the instruction covers the situation here presented for the question primarily involved is whether or not driving into the blind intersection at 30 miles' an hour was negligence under all the circumstances relating thereto. We have held that: \\\"Various factors, such as skid marks, distance traveled after impact, and force of impact, constitute pertinent evidence in arriving at an estimate of the rate of speed of an automobile, either by those involved in an accident or those in authority investigating the accident immediately thereafter.\\\" Shields v. County of Buffalo, 161 Neb. 34, 71 N. W. 2d 701. This rule relates specifically as to what facts may be shown as they can be said to bear on the question of speed, that is, what is reasonable and prudent under the conditions existing at the time. See \\u00a7 39-723 and 39-7,108, R. R. S. 1943. However, the various factors need not be set out in an instruction relating to speed but are sufficiently covered by that part of the instruction referring to \\\"all the circumstances\\\" relating thereto. An instruction on speed should always contain all material applicable limitations and qualifications thereon as contained in statutes or ordinances as they relate to the factual situation with which a jury is confronted. However, those limitations and qualifications contained therein which have no relation to the situation at hand need not be included. See Harding v. Hoffman, supra. We think this instruction, under the situation disclosed by the record, adequately covered the limitations and qualifications of the statutory provisions here applicable.\\nPlaintiff complains of the two' provisions of instruction No. 12 which deal with statutory duties of drivers at intersections. In view of our holding that the jury, under the evidence adduced, could have found that the car being driven by either defendant or Gladys Naber was the first to enter the intersection, we think there was nothing wrong with either paragraph of this instruction of which plaintiff is critical. They correctly set forth the statutes that have application here. See \\u00a7 39-728 and 39-751, R. R. S. 1943. It is true that one paragraph of the instruction uses the pronoun \\\"he\\\" whereas here one of the drivers was a woman. However, they are quotes from the statutes and general in their character, and we do not believe the jury could possibly have been mislead thereby. We think, under the evidence adduced, that Gladys Naber, because of the manner in which she was driving, could have been found by the jury to have forfeited her right-of-way if the jury came to the conclusion that she was driving at an unlawful rate of speed. See \\u00a7 39-7,108, R. R. S. 1943.\\nPlaintiff complains that on cross-examination of de fendant her counsel was improperly limited. This relates specially to objections sustained by the trial court when defendant was asked how far it would take him, while going 40 miles an hour on a gravel road, to bring his car to a stop. While defendant testified he had driven a car for some years, and was entirely familiar therewith, he stated he had never made such a test about which he was here asked to testify. Under this situation any answer he could have given must necessarily have been a guess. We do not think the trial court erred in its discretion by sustaining the objection in view thereof. It is true that in Blado v. Draper, 89 Neb. 787, 132 N. W. 410, we held: \\\"It is not reversible error to permit a witness, who is well skilled in the use of automobiles and is accustomed to handling and driving them, to testify as to' the distance in which such a machine may be stopped when going at different rates of speed, where on the trial of a cause that question is or may become material.\\\" But that does not necessarily mean that any witness familiar with automobiles can be forced to make a guess in regard thereto' when he has not only not testified in regard thereto- but has, in fact, testified he has had no experience on which to base his answer. Although a wide latitude should ordinarily be given counsel on cross-examination to bring out any facts bearing upon the cause of the accident, however, such rule must necessarily have some limitation. See, Zimmerman v. Lindblad, 154 Neb. 453, 48 N. W. 2d 415; Gohlinghorst v. Ruess, 146 Neb. 470, 20 N. W. 2d 381.\\nIn view of what we have said and held herein we think the trial court erred in setting aside the jury's verdict and granting the plaintiff a new trial. We therefore set aside the judgment of the trial court doing so and remand the cause to it with directions to reinstate the verdict and enter a judgment thereon for defendant.\\nReversed and remanded with directions.\"}"
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+"{\"id\": \"4745088\", \"name\": \"Dwayne D. Anderson, by Alva H. Anderson, his father and next friend, appellee, v. Lloyd L. Evans et al., appellants\", \"name_abbreviation\": \"Anderson v. Evans\", \"decision_date\": \"1957-05-10\", \"docket_number\": \"No. 34147\", \"first_page\": \"599\", \"last_page\": 614, \"citations\": \"164 Neb. 599\", \"volume\": \"164\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:48:29.089610+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"parties\": \"Dwayne D. Anderson, by Alva H. Anderson, his father and next friend, appellee, v. Lloyd L. Evans et al., appellants.\", \"head_matter\": \"Dwayne D. Anderson, by Alva H. Anderson, his father and next friend, appellee, v. Lloyd L. Evans et al., appellants.\\n83 N. W. 2d 59\\nFiled May 10, 1957.\\nNo. 34147.\\nMax Kier and Charles Ledwith, for appellants.\\nEisenstatt, Seminara & Lay and Julius D. Cronin, for appellee. \\u2018\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"word_count\": \"4377\", \"char_count\": \"24987\", \"text\": \"Yeager, J.\\nThis is an action in two causes of action for damages for personal injuries and for medical and hospital expenses instituted by Dwayne D. Anderson, a minor, by Alva H. Anderson, his father and next friend, plaintiff and appellee, against Lloyd L. Evans and Edrie Evans, defendants and appellants. The defendants are husband and wife but their liabilities, if any, in this action are not dependent upon the marriage relation but upon an alleged contract of employment whereby the defendants were bound as partners or persons engaged in a joint adventure.\\nThe action was tried to a jury. A verdict was returned in favor of plaintiff and against the defendants for $10,000 upon which verdict judgment was rendered. The defendants separately filed motions for judgment notwithstanding the verdict or in the alternative for a new trial. These were overruled, whereupon the defendants perfected an appeal to this court wherein they seek reversal of the action of the district court.\\nAn understanding of the matters presented here for consideration requires an outline of the pertinent matters presented by the pleadings and the evidence.\\nBy the petition it is alleged that plaintiff, a minor of the age of 18 years, was on August 5, 1953, employed by the defendants under an oral contract of employment to work on defendants' ranch as a ranch hand; that his employment commenced on August 6, 1953; that on that day plaintiff assisted the defendant Lloyd L. Evans, who will be hereinafter referred to as Lloyd, in removing a stake from a point near the rear end of a pick-up truck; that prior thereto Lloyd had poured fuel on the stake which he had ignited; that he knew of the high explosive and dangerous qualities of the fuel but failed to inform the plaintiff who because of youth and inexperience did not know of these qualities; that Lloyd directed plaintiff and commanded the plaintiff to pour additional oil on the stake; and that in an attempt to comply plaintiff picked up a can of fuel, in consequence of which the can of fuel exploded and plaintiff was severely burned and injured. He alleged in numerous specifications that Lloyd was negligent. A sufficient summary of the specifications is that he was negligent in commanding and directing the plaintiff to pour fuel on the burning stake the hazard and danger of which was known to Lloyd or should have been known to him but which on account of his age and inexperience was unknown to the plaintiff.\\nBy answer the oral contract of employment by plaintiff with Lloyd was admitted but as to the defendant Edrie Evans, who will hereinafter be referred to as Edrie, the contract was denied. The original application of fuel to the stake and that it was lighted was admitted. It was in substance admitted that the fuel had inflammable and explosive qualities which entailed danger when used as was done by plaintiff when the \\u2022explosion o\\u00ed which plaintiff complains came about. \\u2022 It was denied that the application was made at any request or direction of Lloyd but that it was done contrary to his express direction and without his knowledge. It was alleged that by reason of age and experience the plaintiff was aware and informed of the dangers incident to the use of the fuel in the manner in which lie used it, and in consequence thereof he assumed the risk of his act and was guilty of negligence proximately causing the explosion and his injury and damage.\\nThis r\\u00e9sum\\u00e9 of the pleadings has application to both causes of action, the first of which is for damage to plaintiff for his injuries. The second is for medical and hospital expense for which the father was liable and which was assigned to plaintiff.\\nThere are eight assignments of error by which it is urged that the judgment may not be allowed to stand. One of these relates to the question of whether or not on the record Edrie Evans was a party to the oral contract of employment.\\nOn the record and the decisions of this court the only conclusion which may be arrived at is that the assignment is valid and must be sustained. There is no evidence whatever in the record which directly or by reasonable inference proves a partnership or anything in the true nature of a joint adventure between the two defendants or that Edrie was a party to the oral employment agreement.\\nAs to the employment agreement all she did was to accompany the plaintiff to the field where plaintiff and Lloyd entered into it.\\nAs to the existence of a partnership this court has said: \\\"Partnership is a contract of two or more competent persons to place their money, effects, labor, skill, or some or all of them, in lawful commerce or business, and to divide the profit or bear the loss in certain proportions.\\\" Peterson v. Massey, 155 Neb. 829, 53 N. W. 2d 912.\\nIn the same case, as to joint adventure, it was said: \\\"A joint adventure is in the nature of a partnership, but may exist where persons embark on an undertaking without entering on the prosecution of a business as partners strictly but engage in a common enterprise for their mutual benefit.\\\"\\nAgain in the same case as to the creation of a joint adventure, it was said: \\\"To constitute joint adventure, there must be an agreement to enter into an undertaking in the objects of which the parties have a community of interest and common purpose in performance, and each of the parties must have equal voice in the manner of its performance and control over the agencies used therein, though one party may entrust performance to another.\\\"\\nIn that case, as to proof of the existence of either a partnership or of a joint adventure, it was said: \\\"The burden of establishing the existence of either a joint enterprise or a partnership is upon the party asserting that the relationship exists.\\\"\\nThe total substance of the evidence relating to partnership or joint adventure is that Lloyd was engaged in farming partly on land owned by him, partly on land held in joint tenancy with Edrie, and partly on rented land; that they had a joint bank account; and that they talked over the matters relating to the farming op\\u00e9rations. There is no word of evidence supporting the existence of any kind or character of contractual arrangement.\\nBy the first, second, and eighth assignments of error it is urged for reasons made apparent by the record that on the evidence and the law there was no basis for a recovery by plaintiff.\\nSeparate motions for directed verdict were made by the defendants at' the close of plaintiff's evidence and again at the close of all the evidence. Separate motions for new trial and for judgment notwithstanding the verdict were also made. These motions challenged the sufficiency of the evidence to sustain a verdict in favor of plaintiff. AH of these were overruled. The defendants effectually by these three assignments of error contend that they should have been sustained, and in consequence thereof they are entitled to a reversal of the judgment with direction to the district court to render judgment in their favor.\\nIn the determination of this question this court is required to consider the evidence in the light most favorable to the plaintiff and to resolve every controverted fact in his favor, and he should have the benefit of every inference that can reasonably be deduced therefrom. Pahl v. Sprague, 152 Neb. 681, 42 N. W. 2d 367.\\nAt the close of plaintiff's evidence m testimony had been adduced to describe the contents of the container, which was a 5-gallon can used for the purpose of conveying and pouring tractor fuel into a farm tractor, from which the plaintiff attempted to pour the fuel from which the explosion, about which there is no controversy, resulted. Likewise there was no evidence as to its volatility or its explosive potential when it came in contact with or proximity to fire or otherwise. The plaintiff however pleaded sufficient facts showing that it was highly volatile and dangerously explosive when brought into contact with or close proximity to fire.\\nThe defendants substantially admitted by answer that the can contained tractor fuel having the qualities described by plaintiff in his petition. It must be said therefore that although there was no evidentiary proof that the fuel used as it was had the potential claimed for it by plaintiff the potential did, as claimed, exist.\\nThe applicable rule in this instance is the following: \\\"No proof is required as to the existence of a fact admitted by the pleadings.\\\" Faulhaber v. Griswold, 124 Neb. 357, 246 N. W. 727. See, also, Barkalow Bros. v. English, 159 Neb. 407, 67 N. W. 2d 336; Rodgers v. Jorgensen, 159 Neb. 485, 67 N. W. 2d 770.\\nThe plaintiff testified that he proceeded to pour the motor fuel by order and direction of Lloyd. This is denied by Lloyd and to the contrary he testified that he directed the plaintiff not to do so. Under the rules set out herein this court, for present purposes, must accept the version of the plaintiff.\\nA further substantial contention of the defendants is that even if Lloyd did direct the plaintiff to pour the fuel, still he may not recover for the reason that in doing so he was guilty of contributory negligence, and also that he assumed the risk of his own act. The basis of this contention as it has been stated by defendants in their brief is as follows: \\\"It is presumed that an 18-year-old boy who has studied auto mechanics in school, owned, operated and repaired four automobiles, operated farm tractors, refueled farm tractors, and who had been employed in haying operations with mechanized equipment for three or more summers, must know and appreciate the dangers in the use of tractor fuel, gasoline and motor fuels generally, including their explosive character and the danger which would ensue from pouring them on a fire or exposing them to fire.\\\"\\nIf the contention of defendants is to be sustained it must be sustained on the basis of this proposed presumption and contrary to' the direct testimony of the-plaintiff. He testified that he did not know of the dangers incident to such handling as he said was' directed.\\nAttention has not been called to any case in this jurisdiction the effect of which is to employ a presumption such as is proposed to defeat the right of trial to a jury under conditions like or similar to those presented by the record in this case. In none of the cases to which attention has been directed has a declaration been found the effect of which is to say that a person who precipitates under direction of an employer dangers which are in their nature hidden, which dangers may not by the exercise of ordinary care be immediately recognized by the senses, although the dangers are inherent and' generally known and recognizable, is guilty of contributory negligence, or that he has assumed the risk of his act, in the absence of evidence that he knew or in the exercise of ordinary care should have known of the dangers.\\nIt was said in a case where an infant of the age of 14 years was involved: \\\"The servant can not fly in the face of the manifest and inevitable danger \\u2014 danger that can not be avoided, even by the exercise of ordinary care and skill \\u2014 even though he be commanded by his master to incur the risk; and if he does so he can not recover.\\\" Ittner Brick Co. v. Killian, 67 Neb. 589, 93 N. W. 951.\\nIn the opinion in this case Shortel v. City of St. Joseph, 104 Mo. 114, 16 S. W. 397, 24 Am. S. R. 317, was referred to as supporting this statement. In that case it was said: \\\"If, therefore, the master orders the servant into a place of danger, and the servant is injured, he is not guilty of contributory negligence, unless the danger was so glaring that a reasonably prudent person would not have entered into it.\\\" This statement discloses a purpose to say that liability or nonliability in an instance where an infant is ordered into a dangerous situation by his employer does not depend upon presumption but knowledge and prudent action in relation thereto by the employee. This is the attitude which has been manifested by the decisions of this court.\\nThis court, in Norfolk Beet-Sugar Co. v. Hight, 56 Neb. 162, 76 N. W. 566, quoted with approval the following from Jones v. Florence Mining Co., 66 Wis. 268, 28 N. W. 207, 57 Am. R. 269: \\\"We think it is now clearly settled that if a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them, and do his work safely, with proper care on his part.\\\" There has been no departure in the decisions from this pronouncement.\\nDirectly on the question of presumption as it relates to a minor this court, in Collins v. Weise, 110 Neb. 552, 194 N. W. 450, said: \\\"There is no presumption that a boy 16 years of age, who has had little experience as a farm laborer, has as much prudence and understanding as an adult, and where such youth is injured while engaged in dangerous work, which he was ordered to do by his employer's foreman in charge of the work, it is for the jury to say, considering his age and experience, whether he assumed the risks of such employment.\\\" This pronouncement has not been modified by later decisions.\\nIt is of course true that an employee who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid defects and dangers which are open and obvious is chargeable with negligence or contributory negligence. Groat v. Clausen, 139 Neb. 689, 298 N. W. 563; Ring v. Kruse, 158 Neb. 1, 62 N. W. 2d 279.\\nAlso as said in Corley v. Hubbard, 129 Neb. 38, 260 N. W. 551: \\\"An employee assumes risks not ordinarily incident to his employment, provided he knows of them and appreciates the danger, or provided they are so plainly observable that he must be presumed to' know them and to appreciate the danger.\\\" See, also, Groat v. Clausen, supra.\\nWhere however there is a disputed question of fact as to whether or not the employee was informed or had knowledge of the latent dangers of his employment a question is presented for determination by a jury. Gundy v. Nye-Schneider-Fowler Co., 89 Neb. 599, 131 N. W. 964; Collins v. Weise, supra.\\nIn the light of these observations it is concluded that the district court did not err in refusing to sustain the contentions embraced in the first two and the eighth assignments of error.\\nBy the third assignment of error the defendants urge that the court erred in excluding testimony as to what knowledge is commonly possessed of the explosive properties of tractor fuel by persons of similar age to the plaintiff. A sufficient response to this is that it does not appear that any such offer of evidence was made. The only thing that appears in this connection is two questions asked of Ralph Fuqua, who was 22 years of age, by defendants' attorney and similar questions asked of one John Anderson. The questions asked of Fuqua were: \\\"Q. You know enough not to pour gas on a fire, don't you?\\\" \\\"Q. Mr. Fuqua, do you know it is not safe to pour gasoline or tractor fuel on a fire?\\\" The questions were objected to on the ground that they were not proper cross-examination and had no bearing on the issues. The objections were sustained.\\nBy the fourth assignment of error it is contended that the court erred in admitting into evidence hospital records containing opinions of nurses as to pain and suffering of the patient. It is to be observed that by this assignment the admissibility of hospital records generally is not brought into question. It is directed only to admissibility of opinions of nurses as to pain and suffering of the patient contained in the hospital records. The discussion here will be so limited.\\nVoluminous hospital records from the Nebraska Methodist Hospital in Omaha, Nebraska, were admitted in evidence over objections of the defendants. Among these were notes purportedly made by nurses. Approximately ten pages from these notes covering a period from August 7, 1953, to August 18, 1953, were read to the jury. Apparently there was much more of this character of evidence which the jury was probably permitted to take to the jury room.\\nThe only foundation for the receipt of these notes in evidence was laid by the then assistant medical record librarian of the hospital. She testified that they were the normal, regular business records maintained by the hospital concerning plaintiff; that after proper service to' the patient they were assembled in the record office; that her office only assembled the records; that they are compiled on the floors and do not come to the record office until the patient is dismissed; and that they were kept in the ordinary course of business. There is nothing whatever in the testimony of the witness to identify the person or persons who made the notes or to verify their authenticity.\\nAs to admissibility this court has said: \\\"The official charts and records, kept in the regular course of business under the rules of a reputable hospital, are admissible in evidence when a proper foundation has been laid.\\\" Willis v. Order of Railroad Telegraphers, 139 Neb. 46, 296 N. W. 443.\\nIn that case there was no holding that statements of the condition of a patient appearing on hospital charts were not hearsay. The point of the holding in that connection was that the plaintiff, the widow of a deceased person, had in her proof of death in a claim for insurance waived the right to assert inadmissibility on the ground of hearsay.\\nThe admissibility generally of hospital records, in the absence of statutes, is commented upon in the opinion. In the comments it was pointed out that there is great conflict of opinion in other jurisdictions as to admissibility of hospital records in evidence. However no precedent was announced therein for this jurisdiction. It was indicated only that they were not admissible without foundation.\\nIn other jurisdictions the question of foundation has been considered and views expressed. In the expressions there is no uniformity of language but a summary of the substance appears to be that before hospital records become admissible at least the following must be shown: The custody from which they come; that they were prepared in due process of hospital work; the identity of the person who made them; the manner in which the person or persons making them obtained the information recorded; information as to accuracy; identification of the records by the person or persons who made them; and if such person or persons are unavailable, the reasons therefor. See, Osborne v. Grand Trunk Ry. Co., 87 Vt. 104, 88 A. 512, Ann. Cas. 1916C 74; Clayton v. Metropolitan Life Ins. Co., 96 Utah 331, 85 P. 2d 819, 120 A. L. R. 1117.\\nThis appears to be a proper general rule to be observed in situations such as the one being considered here. The record in this case discloses no such foundation.\\nThe plaintiff contends however that these notes were admissible under a statute which is designated as the Uniform Business Records As Evidence Act. Section 25-12,109, R. R. S. 1943, is as follows: \\\"A record of an act, condition, or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies as to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.\\\" It is on this provision that the plaintiff relies.\\nIt is apparent, assuming that the notes in question could be regarded as business records, that the foundation for admission in evidence required by the terms of the statute was never laid. As to this no further comment is required.\\nIn the light of what has been said as to the purpose and meaning of the statute these notes were not business records. In Higgins v. Loup River Public Power Dist., 159 Neb. 549, 68 N. W. 2d 170, it was pointed out that the record of the acts and incidents of employees in the performance of duties as such do not come within the purview of this statute. In that case it was said: \\\"The phrase regular course of business as used in the act must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as such. If a record is not of such a character as to give it the status of a business entry it is hearsay and is inadmissible.\\\"\\nThe record of these notes was not admissible. The admission of them was error as contended by the defendants.\\nBy the fifth assignment of error the defendants contend that the court erred in admitting into evidence photographs showing the physical appearance of plaintiff after the accident. These photographs were in color. The substantial theory of the assignment is not that the photographs did not reflect the appearance of the plaintiff at the time, but that there was other descriptive evidence of his condition and appearance which rendered unnecessary this evidence, and in this light the evidence should not have been admitted because it was calculated only to create prejudice against the defendants.\\nIn the light of the decisions the assignment of error may not be sustained. In City of Geneva v. Burnett, 65 Neb. 464, 91 N. W. 275, 101 Am. S. R. 628, 58 L. R. A. 287, it was said: \\\"Under the proper precautions and with necessary explanations, what are known as 'X-ray pictures' are admissible in evidence for the purpose of showing the condition of the internal tissues of the body.\\\" This pronouncement was referred to with approval in Fries v. Goldsby, 163 Neb. 424, 80 N. W. 2d 171.\\nIf this is true as to internal tissues it would reasonably appear that photographs showing the condition of the external tissues should likewise be admissible. The possibility that the photographs might have a tendency to create sympathy in favor of one party should not render them inadmissible as proof of an issue on the trial.\\nThe sixth assignment of error requires no consideration at this point. It was effectually disposed of by the conclusion already appearing herein that no cause of action has been proved against Edrie.\\nBy the seventh assignment of error the defendants contend that the court in effect orally gave instruction to the jury and that this was error.\\nThe court did out of the presence of the parties or their attorneys orally instruct the jury as to the manner of preparing a verdict, as to the intent of the court as to the content of a form of a verdict in blank supplied, and the effect of it with the blank or blanks filled out and returned by the jury. This obviously was reversible error.\\nSection 25-1111, R. R. S. 1943, provides: \\\"It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charges or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case;\\nSection 25-1115, R. R. S. 1943, provides: \\\"No oral explanation of any instruction authorized by the preceding sections shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions, given to the jury by the court and not reduced to writing, as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein.\\\"\\nIn Dow v. Legg, 120 Neb. 271, 231 N. W. 747, 74 A. L. R. 5, it was said: \\\"The giving of an oral instruction to the jury in regard to the principles of law applicable to the case and to the evidence, without waiver of the statutory requirement that it be in writing, is reversible error.\\\"\\nIn the light of these observations the judgment of the district court is reversed. As to the defendant Edrie Evans the cause is remanded with directions to sustain her motion for judgment notwithstanding the verdict. As to the defendant Lloyd L. Evans, it is remanded for a new trial.'\\nReversed and remanded with directions.\"}"
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+"{\"id\": \"4755552\", \"name\": \"Lawrence E. Pribyl, plaintiff in error, v. State of Nebraska, defendant in error\", \"name_abbreviation\": \"Pribyl v. State\", \"decision_date\": \"1957-12-27\", \"docket_number\": \"No. 34256\", \"first_page\": \"691\", \"last_page\": 706, \"citations\": \"165 Neb. 691\", \"volume\": \"165\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:00:52.114532+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"parties\": \"Lawrence E. Pribyl, plaintiff in error, v. State of Nebraska, defendant in error.\", \"head_matter\": \"Lawrence E. Pribyl, plaintiff in error, v. State of Nebraska, defendant in error.\\n87 N. W. 2d 201\\nFiled December 27, 1957.\\nNo. 34256.\\nDry den & Jensen and Crosby, Pansing \\u2022& Guenzel, for plaintiff in error.\\nClarence S. Beck, Attorney General, and Gerald S. Vitamvas, for defendant in error.\\nHeard before Simmons, C. J., Carter, Messmore, Yeager, Chappell, Wenke, and Boslaugh, JJ.\", \"word_count\": \"4742\", \"char_count\": \"26860\", \"text\": \"Yeager, J.\\nThis is a criminal action wherein, in the district court for Buffalo County, Nebraska, Lawrence E. Pribyl was charged with the crime of motor vehicle homicide. The action was prosecuted in the name of the State of Nebraska by the deputy county attorney of Buffalo County. On trial of the case Pribyl was convicted of the charge and was sentenced to a term of not less than 1 year nor more than 1% years in the Nebraska State Reformatory for Men. A motion for new trial, a supplemental motion for new trial, and a motion in arrest of judgment were filed. These motions were overruled. By petition in error Pribyl seeks a reversal of the conviction and sentence. He will hereinafter be referred to as the defendant.\\nThe statute which provides the basis for a prosecution such as this is in pertinent part as follows: \\\"Whoever shall cause the death of another without malice while engaged in the unlawful operation of a motor vehicle shall be deemed guilty of a crime to be known as motor vehicle homicide \\u00a7 28-403.01, R. R. S. 1943.\\nBefore proceeding to a consideration of the grounds on which the defendant seeks a reversal it appears that it should be pointed out that the information charged in general terms that while he was engaged in the unlawful operation of a motor vehicle he caused it, without malice, to collide on a city street in Kearney, Nebraska, with the body of Vera Bartu, injuring her and causing her death. The thing which was unlawful in the operation is not described. This failure to describe or designate the thing which was unlawful was not attacked either before or at the trial.\\nThe court, by its instruction No. 6, limited the area of consideration of unlawful operation by the jury to: (1) Operation of a motor vehicle on a highway at a speed in excess of what was reasonable and prudent under the then existing conditions, (2) speed in excess of 25 miles an hour in any city or village except when 25 miles an hour would be unsafe or was hazardous, (3) speed greater than was reasonable and proper with regard to traffic conditions and use on any road, avenue, or boulevard running within, through, or along the grounds of state institutions, and (4) operation while under the influence of alcoholic liquor. Of this instruction no complaint by assignment of error has been made.\\nThe brief of the defendant contains numerous assignments of error. The primary contention however is that the admissible evidence is not sufficient upon which to base a finding that at the time and place in question the defendant was operating a motor vehicle unlawfully and that such unlawful operation was the proximate cause of the death of Vera Bartu. It is admitted that Vera Bartu came to her death as the result of the collision with a motor vehicle operated by the defendant, but the substantial contention of the defendant is that there has been a failure of proof that the operation was unlawful and the proximate cause of the death.\\nIn an action of this kind the burden is upon the State to prove beyond a reasonable doubt that the person charged operated his motor vehicle in violation of one or more of the statutory provisions relating to the operation of motor vehicles. Hoffman v. State, 162 Neb. 806, 77 N. W. 2d 592.\\nThe burden is on the State also to prove that the unlawful act or acts were the proximate cause of the death. Birdsley v. State, 161 Neb. 581, 74 N. W. 2d 377.\\nFacts about which there is no controversy, but which must be considered in determining whether or not the conviction in this case shall be sustained, are the following: On October 22, 1956, at about 7:30 p.m., Vera Bartu was standing on the north side of Twenty-sixth Street in Kearney, Nebraska, at a point directly south of a building on the grounds of the Kearney State Teachers College known as Case Hall. This street extends east and west and separates the buildings on the north from the main buildings of the college which are to the south. The place where she was standing was not in a cross walk but it was in an area not used for parking automobiles. To the east about 169 feet is Ninth Avenue which extends north and south. Vera Bartu started to cross over Twenty-sixth Street to the south or southwest and while she was crossing the defendant came from the east in a 1948 Plymouth automobile. The left front corner of the automobile struck her, as a result of which she was thrown through the air and westward the distance of about 75 feet, and the force of the impact caused her to be propelled on the surface of the street until she had reached a point about 170 feet from the point of the collision. On examination immediately thereafter it was found that she was dead. The defendant did not stop or reduce the speed of the automobile until he reached Eleventh Avenue which was to the west. He returned to the scene a few minutes later and reported that he was the operator of the automobile which struck Vera Bartu. Thereafter he was taken to a local hospital where with his consent blood samples were taken for the purpose of determining whether or not in his blood there was evidence of alcohol or of intoxication. Thereafter he was taken to the police station where he was interviewed and where observations were made of his appearance, his conduct, and his speech.\\nOther facts disclosed by the record are that within a few minutes after the collision Dr. O. R. Hayes appeared on the scene. It was he who took the blood samples. The analysis of the samples indicated an alcoholic content of 0.14 percent. This witness talked with and observed the defendant at the hospital and later at the police station. He related at length what took place on these occasions, the details of which it is not deemed necessary to set forth here. He also testified to a broad experience in the observation of persons under the influence of intoxicating liquor. At the conclusion of this foundation he was allowed over objection to give his opinion as to whether or not at the time in question the defendant was under the influence of in toxicating liquor. He gave it as his opinion that there was some degree of alcoholic influence.\\nThe sheriff of Buffalo County gave it as his opinion that at the time the incidents involved here came about the defendant was under the influence of intoxicating liquor. The opinion was given after exhaustive foundation was laid, which foundation does not require restating herein.\\nThe defendant contends that the evidence was inadmissible as proof that he was operating his automobile while under the influence of alcoholic liquor at the time Vera Bartu was killed. The contention is without merit. In Howard v. State, 109 Neb. 817, 192 N. W. 505, it is said: \\\"The rule, as deduced from the weight of authority, is that a witness may testify, from observation, whether a person was intoxicated. Intoxication is a fact which a witness may ascertain in the same manner in which he ascertains other facts. He may give the details and then may state the ultimate fact of intoxication as derived from observation.\\\" See, also, Schluter v. State, 153 Neb. 317, 44 N. W. 2d 588; Franz v. State, 156 Neb. 587, 57 N. W. 2d 139.\\nThe evidence of these witnesses was admissible. The weight and sufficiency of it was for the jury. Franz v. State, supra.\\nFour witnesses on behalf of the State who observed the movements of the automobile of the defendant at the time of the occurrence were allowed to give their respective opinions as to the rate of speed at which it was moving. The defendant urges that no proper and sufficient foundation was laid for the admission of these opinions. Each of the witnesses had driven automobiles and testified that he was able from observation to reasonably accurately estimate the speed of moving vehicles. A brief summary of the other foundational testimony of the four witnesses is the following:\\nOne of the witnesses testified that he was about 75 feet north of Twenty-sixth Street, walking south; that he heard the automobile coming from the east; that he heard the impact; that he saw the car and the body of Vera Bartu west of the walk which leads out of Case Hall; that the street lighting was very good; that he observed the movement of the automobile for 325 to 350 feet and its speed did not appear to increase or decrease while he watched; and that in his opinion the speed was from 35 to 40 miles an hour.\\nAnother testified that he saw the automobile about 50 feet before and about 200 feet after it struck Vera Bartu; that it did not slow down; and that in his opinion the speed was over 45 miles an hour.\\nAnother testified he saw the automobile and watched it for 300 to 350 feet. He testified that in his opinion the speed was 35 miles an hour. Incidentally no objection as to foundation in this instance appears in the bill of exceptions.\\nThe other -witness testified that he heard the automobile hit a dip at the intersection of Ninth Avenue and Twenty-sixth Street, that he first saw it 10 or 15 yards west of that point and saw it for as much as 250 feet thereafter, and that at that time he did not arrive at an opinion as to the rate of speed but after putting everything together he arrived at an opinion that the speed was 40 miles an hour.\\nIn the light of controlling principles the conclusion is reached that there was sufficient foundation for the receipt in evidence of the opinions of these witnesses as to the speed at which the automobile of the defendant was being operated at the time Vera Bartu was struck and killed.\\nIn Koutsky v. Grabowski, 150 Neb. 508, 34 N. W. 2d 893, it was said: \\\"Speed of an automobile is not a matter of exclusive knowledge or skill, but anyone with a knowledge of time and distance is a competent witness to give an estimate. The opportunity and extent of his observation goes to the weight of the testimony.\\\" See, also, Schluter v. State, supra; Haight v. Nelson, 157 Neb. 341, 59 N. W. 2d 576, 42 A. L. R. 2d 1.\\nThe testimony of these witnesses was competent proof that the defendant was operating his automobile in excess of 25 miles an hour in the city of Kearney, Nebraska. Coupled with other evidence in the case it was competent proof that at the time and under existing conditions the speed, whether it was greater or less than 25 miles an hour, was -unreasonable and imprudent. The operation of the automobile was along the grounds of a state institution. Again coupled with other evidence in the case it was competent proof that the speed of the automobile was unreasonable in the light of the condition and use of the street.\\nOther evidence to which reference has been made is that Twenty-sixth Street was well-lighted and that objects on the street were readily observable. The street was crossed in custom by the students at the college of which the defendant was one. Vera Bartu was in a position where the defendant could readily have observed her after crossing Ninth Avenue. There was no apparent effort by defendant to avoid driving into Vera Bartu or to stop' for a considerable distance after she had been struck.\\nOf course this evidence as to speed, the summary of related events, and the evidence as to the defendant being at the time under the influence of intoxicating liquor does not stand without controversion. The defendant denied that he was under the influence of intoxicating liquor and there was other evidence to support his denial including evidence from expert witnesses elicited through hypothetical questions. As to speed the defendant testified that he was driving 20 to 25 miles an hour. He further testified in substance that at the time he did not know what he struck but, whatever it was, it came in front of his automobile so suddenly that he as unable to avoid striking it.\\nIn a criminal case such as this where there is conflicting evidence the rule is the following: \\\"This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.\\\" Birdsley v. State, supra. This principle has been announced in varying terms but in a like sense in other decisions of this court. See, Vaca v. State, 150 Neb. 516, 34 N. W. 2d 873; Fisher v. State, 154 Neb. 166, 47 N. W. 2d 349; Vanderheiden v. State, 156 Neb. 735, 57 N. W. 2d 761.\\nIt must be said therefore that the verdict and judgment are not to be vacated and set aside unless there is found some fatal error in the proceedings leading up to the trial or there was prejudicial error occurring at the trial as contended by the defendant in his assignments of error.\\nFollowing the acts which are the basis of the prosecution herein the defendant was charged by formal complaint in the county court of Buffalo County, Nebraska, with motor vehicle homicide. A hearing was had at the conclusion of which the defendant was held to the district court for trial. Thereafter he filed an action in habeas corpus the purpose of which was to obtain his release on the ground that the evidence in the county court was insufficient upon which to hold him for trial in the district court. A trial was had and his release was denied. From that adjudication the defendant appealed to this court. The appeal was pending at the time the defendant was called for trial on the charge of motor vehicle homicide in the district court. On that ground he made application for continuance pending the final disposition of the appeal. The application was denied. He contends that this was error. Incidentally by opinion of this court in Pribyl v. Frank, ante p. 239, 85 N. W. 2d 328, the appeal was decided adversely to the defendant herein.\\nThis subject is considered at length in the annotation in 63 A. L. R. 1460. Cases from various jurisdictions are cited and reviewed therein. The conclusion reached as to instances wherein the writ of habeas corpus has been denied, in the absence of controlling statute, is that a continuance of the trial of the criminal action until the appeal in the habeas corpus action has been decided may properly be denied. The opposite is true if the writ has been allowed and the respondent has taken the appeal.\\nIn this state there is no statute relating to the subject, therefore the assignment must be resolved against the defendant herein.\\nOn the trial of this case the regular panel of jurors was exhausted and under the direction of the court tales-men were called. This action has been assigned as error. At the outset it should be said that no objection to this procedure was made at the time. The objection was first registered in the motion for new trial. It should further be said that there is nothing in the record to indicate that by this the defendant was or could have been thereby prejudiced.\\nBy the terms of section 25-1634, R. R. S. 1943, prior to 1953, the calling of talesmen in the manner in which it is claimed they were called, provided objection had been timely made, would have been reversible error. The section at that time permitted the calling of tales-men in the case of \\\"great emergency.\\\" In Losieau v. State, 157 Neb. 115, 58 N. W. 2d 824, in interpretation of this emergency provision, this court, by quotation from Russell v. State, 77 Neb. 519, 110 N. W. 380, said: \\\" Tf the method pointed out by the statute for securing jurors is disregarded, no doubt the defendant may object to being tried upon a criminal charge before the jury so obtained. In such case the law will presume prejudice.' \\\"\\nThis statute however was amended by the Legislature in 1953. The amendment appears in part as section 25-1634.02, R. R. S. 1943. In it the following was substituted: \\\"When it is deemed necessary the judge shall direct the sheriff of the county to summon from the bystanders or the body of the county a sufficient number of persons to fill the panel, in order that a jury may be obtained.\\\" It appears that the intent and purpose of the amendment and change was to cause the question of whether or not talesmen were necessary to reside in the sound discretion of the judge.\\nThere is in addition to this conclusive reason why the defendant in this case may not now be heard to complain. While the statute contained the emergency provision this court, in considering the question presented by this assignment of error, said in Jordan v. State, 101 Neb. 430, 163 N. W. 801: \\\"Defendant made no objection at the time, nor is any complaint made against the character or conduct of the juror so summoned. While perhaps the order ought to have been in the language of the statute, no objection was made at the time and no prejudice is shown. In the absence of such showing, it will be treated as error without prejudice.\\\" The assignment does not present error which may be regarded as prejudicial.\\nThe defendant contends that it was error to submit the case to the jury on the charge of motor vehicle homicide rather than manslaughter. The contention is fallacious. This court, in Birdsley v. State, supra, pointed out that motor vehicle homicide was not manslaughter but was distinct therefrom. It was said: \\\"In that connection, when the Legislature enacted section 28-403.01, R. S. Supp., 1953, it simply created and defined the crime of motor vehicle homicide in amelioration of the crime of manslaughter.\\\"\\nThe next question is that of whether or not the court erred in permitting photographs of the appearance of Vera Bartu to be admitted in evidence. There is no substantial contention that they failed to accurately display and to expose to the jury the observable condition of Vera Bartu immediately after and caused by being struck by the defendant's automobile. The contention is that the evidence of her condition was1 fully disclosed by testimony and that the only purpose and effect of the presentation of the photographs was to inflame the passions of the jury.\\nThis court said in Vaca v. State, supra: \\\"A photograph proved to be a true representation of the person, place, or thing which it purports to represent, is competent evidence of anything of which it is competent and relevant for a witness to give a verbal description.\\\"\\nIn the same case it was said: \\\"Where a photograph illustrates or makes clear some controverted issue in the case, a proper foundation having otherwise been laid for its reception in evidence, it may properly be received, even though it may present a gruesome spectacle.\\\" See, also, MacAvoy v. State, 144 Neb, 827, 15 N. W. 2d 45; Lee v. State, 147 Neb. 333, 23 N. W. 2d 316.\\nIt cannqt well be said that the condition of Vera Bartu was not a matter proper for consideration of the jury in determining the manner and speed at which the defendant was operating his automobile. The assignment of error may not be sustained.\\nThe next question to be considered is that of whether or not the court erred in refusing to exclude the witnesses for the State from .the courtroom until called as witnesses.\\nThe general rule is that the segregation of the witnesses in a criminal trial is ordinarily a matter within the discretion of the trial court. See, Binfield v. State, 15 Neb. 484, 19 N. W. 607; Maynard v. State, 81 Neb. 301, 116 N. W. 53; Johns v. State, 88 Neb. 145, 129 N. W. 247; Roberts v. State, 100 Neb. 199, 158 N. W. 930, Ann. Cas. 1917E 1040. In the opinions in these cases attention has been directed to- conditions, under which the advisability of segregation has been indicated, but no standard has been declared whereby it may be said that discretion has been abused by failure to segregate.\\nIn Maynard v. State, supra, an indication appears that abuse of discretion may not be declared arbitrarily but it may be declared only if there are facts and circum stances indicating abuse. In the opinion it was said: \\\"Aside from what was developed later in the trial, and of which the court presumably had no knowledge at the .time of the ruling upon the request, we are not advised of any abuse of discretion on the part of the court.\\\" It was further stated: \\\"That such a request, in cases of the importance of this one, should be granted cannot be questioned.\\\" Despite the quoted admonitory statement the conviction was affirmed.\\nIn the case at bar there is nothing to indicate that the defendant was in anywise prejudiced by the refusal to segregate the State's witnesses, in consequence of which the conclusion reached is that there was no abuse of discretion.\\nBy the next assignment of error to be considered the defendant contends that the court erred in refusing to give .three instructions which were requested. The substance of the first offered instruction was a request that the court instruct the jury that before the defendant could be convicted of the charge against him the jury must find that he was guilty of gross or great and excessive negligence.\\nThis court made it clear in Hoffman v. State, supra, that negligence or gross negligence as such is not an element of the crime of motor vehicle homicide. There must be proof of unlawful operation. Negligence may be and usually is a basic element in unlawful operation and may be proved but the essential element of the crime as declared by the statute is the unlawful act.\\nThe second of the three instructions was a request that the jury be instructed that it must be proved that the unlawful act was the proximate cause of the death. The jury was clearly so instructed by instruction No. 4 given by the court on its own motion.\\nThe third of the three instructions, to the extent necessary to consider it here, was a request that the court charge that before the collision the defendant was engaged in the felonious operation of his automobile. There is no merit to the contention. The subject will be dismissed with the statement that the gist of the offense of causing death as the result of unlawful operation is not felonious operation but only unlawful operation.\\nThe county attorney was allowed to testify as a witness for the State. The defendant insists that this was error. The theory of disqualification as a witness is not made clear. No case cited or found contains a rule disqualifying a county attorney as a witness. The rule in this state is stated as follows in Frank v. State, 150 Neb. 745, 35 N. W. 2d 816: \\\"It is improper in a criminal prosecution for the court to allow one who testifies as a witness to the principal facts to also as attorney conduct the trial in the examination of witnesses or argument to the jury, or to conduct himself in any manner inconsistent with his position as a witness or his interest as an officer of the state.\\\" Citations supporting the rule appear in the opinion. The county attorney by his conduct fully conformed to the rule with its inhibitions and took no part in the trial except as a witness. He did not even inform against the defendant. There is no merit in the assignment of error.\\nThe defendant urges as error that there were two incidents of the admission of evidence on rebuttal which were not properly rebuttal. The first relates to the evidence of the witness Hayes. In the case-in-chief he testified that he took the samples of blood for the purpose of ascertaining whether or not there was alcohol in the blood. As a part of the technique he testified that he used an antiseptic before the extraction of blood. The lapsed time between the application of the antiseptic and the taking of the sample was not described with certainty. Witnesses for the defendant testified in substance that if alcohol was used as an antiseptic the showing of alcoholic content in the sample would probably not be accurate in the absence of the lapse of a given length of time between the application of the alcohol and the extraction of the sample. The witness Hayes was called on rebuttal to and he did explain the technique of taking the samples as to the time elapsing after the application of the antiseptic, which antiseptic was alcohol.\\nThis evidence was not strictly rebuttal but was admissible on rebuttal, being merely elucidative of evidence already given by the witness in the ease-in-chief. \\\"In a criminal prosecution, any testimony, otherwise competent, which tends to dispute the testimony offered on behalf of the accused as to a material fact, is proper rebuttal testimony.\\\" Drewes v. State, 156 Neb. 319, 56 N. W. 2d 113.\\nIn the same opinion it was said: \\\"It is within the discretion of the court to permit in rebuttal the introduction of evidence not strictly rebutting.\\\" See, also, Hampton v. State, 148 Neb. 574, 28 N. W. 2d 322; Parker v. State, 164 Neb. 614, 83 N. W. 2d 347. It may not well be said that the court abused its discretion in the admission of this evidence.\\nThe second relates to separate incidents of evidence of two conversations with the defendant after the fatal incident. One related to what the defendant purportedly said about the consumption of alcoholic liquor. The defendant responded to it on surrebuttal. The other related to a matter having no pertinence in any manner. It related to loss of antifreeze. Though not competent evidence it is not possible to see how it prejudiced the defendant. The evidence in neither instance has been shown to have been in anywise prejudicial.\\nThe remaining question to be considered under the assignments of error is a contention that the sentence imposed by the court is excessive. The statute defining the crime of motor vehicle homicide provides the range in penalty which may be imposed in case of conviction. The minimum is a fine in any amount not exceeding $500 and the maximum is 10 years imprisonment in the penitentiary and a fine of $500. What the penalty shall be resides in the discretion of the court in each case. See \\u00a7 28-403.01, R. R. S. 1943.\\nUnder circumstances such as are present in this case the rule is as follows: \\\"Where the punishment of an offense created by statute is left to the discretion of a court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed unless there appears to be an abuse of such discretion.\\\" Salyers v. State, 159 Neb. 235, 66 N. W. 2d 576. See, also, Hyslop v. State, 159 Neb. 802, 68 N. W. 2d 698. There is nothing in the record in this case to justify a conclusion by this court that the trial court abused its discretion in the assessment of the penalty.\\nFinding no prejudicial error the judgment of the district court is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"4782353\", \"name\": \"Violet Stump, appellant, v. Leonard J. Stransky et al., appellees\", \"name_abbreviation\": \"Stump v. Stransky\", \"decision_date\": \"1959-04-10\", \"docket_number\": \"No. 34559\", \"first_page\": \"414\", \"last_page\": 419, \"citations\": \"168 Neb. 414\", \"volume\": \"168\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:10:35.560134+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Simmons, C. J., Carter, Messmore, Chappell, and Boslaugh, JJ.\", \"parties\": \"Violet Stump, appellant, v. Leonard J. Stransky et al., appellees.\", \"head_matter\": \"Violet Stump, appellant, v. Leonard J. Stransky et al., appellees.\\n95 N. W. 2d 691\\nFiled April 10, 1959.\\nNo. 34559.\\nAlbert S. Johnston, for appellant.\\nMarti, O\\u2019Gar a, Dalton \\u2022& Sheldon and Bernard L. Packett, for appellees.\\nHeard before Simmons, C. J., Carter, Messmore, Chappell, and Boslaugh, JJ.\", \"word_count\": \"1521\", \"char_count\": \"8884\", \"text\": \"Simmons, C. J.\\nThis is an action for damages brought by plaintiff for injuries caused by falling on a sidewalk in front of property owned by the defendants. At the close of plaintiff's case the court, on motion of the defendants, dismissed plaintiff's cause. Plaintiff appeals.\\nWe affirm the judgment of the trial court.\\nThe tenant in the house on the premises was also made a party defendant. He defaulted and is not involved in this appeal.\\nPlaintiff assigns that the trial court erred in sustaining the motion to dismiss; in holding that there was insufficient evidence to require the submission of the cause to the jury; in striking an allegation as to the contents of an ordinance of the city of Lincoln from the petition and in refusing its admission in evidence; and in holding that the cause was governed by the common law rule and not by statute, city charter, and ordinance provisions.\\nPlaintiff alleged the ownership of the property by the defendants and the tenancy, which defendants admitted by answer.\\nPlaintiff alleged that on December 10, 1955, at 1:30 p. m., plaintiff fell on the walk in front of the premises and was seriously injured; that the walk was coated with ice, over which was a light coating of snow that had fallen that day which concealed the ice; and that she slipped on the ice without notice or warning of its condition. She further alleged that neither the ice nor snow had been strewn, with ashes or sand or otherwise treated so as to allow pedestrians to use the walk with safety; that the coating of ice was negligently caused by defendants in allowing rain or melting snow to flow upon the walk and cong\\u00e9al thereon; that defendants negligently allowed the snow to remain on the ice and conceal it; and that defendants had knowledge of the ice and posted no warnings, did not remove the ice, and did not cause it to be strewn with ashes or sand or otherwise cause the walk to be in a condition for safe use.\\nShe pleaded the charter provision; also the city ordinance, to which reference is later made in this opinion.\\nDefendants denied generally.\\nPlaintiff offered evidence that there was ice on the walk; that it was covered with a half inch of recently fallen snow; that the ice was not strewn with ashes of sand; and that she fell to her serious injury.\\nPlaintiff contends that the evidence was sufficient to take the case to the jury on the issue of negligence. We do not reach or decide that question. The trial court struck the allegation as to the ordinance from the petition and denied its admission in evidence. Plaintiff contends that there was error in that regard.\\nThe city ordinance provided: \\\"Snow and Ice Removal. Every owner or occupant of any house or other building, or the owner or proprietor, lessee, or person entitled to the possession of any vacant lot, and any person having charge of any church, jail or public hall, or public building in the City, shall, during the winter season, and during the time snow shall continue on the ground, before nine o'clock every morning clear the sidewalks in front of such lots, from snow and ice, and keep such sidewalks free from snow and ice during the day, or in case the snow and ice are so congealed that they cannot be removed without injury to the sidewalk, shall cause the said snow and ice to be strewn with ashes or sand, and shall also at all times, keep such sidewalks clear and free from all dirt or filth, or other obstructions or encroachments, so as to allow pedestrians to use the said sidewalks with safety. Failure on the part of any person upon whom a duty is placed by the provisions of this section to perform such duty shall be deemed a misdemeanor and punishable as in this Code provided.\\\" \\u00a7 39-113, 1951 Supp., Lincoln Municipal Code.\\nWe see no substantial difference between the ordinance here involved and that involved in Hanley v. Fireproof Building Co., 107 Neb. 544, 186 N. W. 534, 24 A. L. R. 382, wherein we held: \\\"The law of this state imposes upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for travel by the public. Under the common law no duty devolved upon an abutting owner to keep the sidewalks adjacent to his property in a safe condition. Where the provisions of an ordinance impose upon property owners the performance of a part of the duty of the municipality to the public and are for the benefit of the municipality as an organized government, and not for the benefit of the individuals comprising the public, a breach of such ordinance is remediable only at the instance of the municipal government, and no right of action accrues to an individual citizen especially injured thereby.\\\"\\nPlaintiff does not here contend that there is a difference. It follows then that the ruling of the trial court as to the ordinance was not erroneous.\\nPlaintiff contends that section 15-734, R. R. S. 1943, and the city charter provision have modified the common law rule above stated. Plaintiff further contends that the statute or charter provision was not involved in the above case.\\nPlaintiff advises us that the charter provision and the statute are in substantially the same language. The st\\u00e1tute is available to our bar. Hence we quote' only the charter provision.\\nPlaintiff contends that the charter provision and the statute create a right of action in an individual injured against the property owner.\\nAssuming but not deciding that such a contention is correct, it is patent that plaintiff has not complied with the condition precedent to liability.\\nThe language is that: \\\"The owner is charged with the duty of keeping and maintaining the sidewalks in a safe and sound condition, and free from snow, ice and other obstruction, and in default thereof, upon notice to such abutting property owner as hereinafter provided, such abutting property owner shall be liable for injuries or damages sustained by reason thereof. In case such abutting property owner refuses or neglects, after five days notice to so construct or maintain such sidewalk, the city may\\\" etc. (Emphasis supplied.) Art. VIII, \\u00a7 19, Charter, City of Lincoln, Neb.\\nPlaintiff argues that the giving of notice is not required in this instance because the second reference to notice relates only \\\"to so construct or maintain such sidewalk\\\" and does not repeat \\\"free from snow, ice and other obstruction.\\\" Neither is the \\\"safe and sound condition\\\" clause repeated. The contention is not persuasive. The important provision is that \\\"keeping and maintaining the sidewalks free from snow, ice and other obstruction\\\" is made subject to the notice provision.\\nIt is patent that the first sentence here considered is designed to define the scope of the liability created contingent \\\"upon notice\\\" being given. The second sentence here considered defines the nature of the notice required and the time that must elapse before the requirement of notice is satisfied so as to make the liability provision operative.\\nAccordingly we hold that the requirement of notice contained in Article VIII, section 19, of the Charter of the city of Lincoln, and in section 15-734, R. R. S. 1943, is a condition precedent to the operative effect of the duty of an owner of property contained in the two pro visions. Plaintiff does not contend that any notice was given within the requirements of the act or the charter.\\nThe evidence here is that the sidewalk where plaintiff fell was sloping and that there was a ridge of snow along and parallel to the upper side. Plaintiff contends that this constitutes an obstruction within the definition found in Shupe v. County of Antelope, 157 Neb. 374, 59 N. W. 2d 710. Plaintiff's theory is that there could have been more snow in the ridge; that it could have melted; that it could have caused water to run across the sidewalk; that it could have frozen on the walk; and that it could have caused the ice which caused plaintiff to slip and fall.\\nThe rule is: Presumptions and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference. Lebs v. Mutual Benefit Health & Accident Assn., 124 Neb. 491, 247 N. W. 19; Peabody v. Continental Life Ins. Co., 128 Neb. 23, 257 N. W. 482; Wolcott v. Drake, 162 Neb. 56, 75 N. W. 2d 107.\\nOther arguments advanced by plaintiff do not have sufficient relationship to the issues here presented to require discussion.\\nThe judgment of the trial court is affirmed.\\nAffirmed.\\nYeager and Wenke, JJ., participating on briefs.\"}"
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+"{\"id\": \"5154462\", \"name\": \"William N. Metcalf, appellee, v. Hartford Accident & Indemnity Company, an insurance corporation, appellant\", \"name_abbreviation\": \"Metcalf v. Hartford Accident & Indemnity Co.\", \"decision_date\": \"1964-02-28\", \"docket_number\": \"No. 35573\", \"first_page\": \"468\", \"last_page\": 478, \"citations\": \"176 Neb. 468\", \"volume\": \"176\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:09:17.971175+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"parties\": \"William N. Metcalf, appellee, v. Hartford Accident & Indemnity Company, an insurance corporation, appellant.\", \"head_matter\": \"William N. Metcalf, appellee, v. Hartford Accident & Indemnity Company, an insurance corporation, appellant.\\n126 N. W. 2d 471\\nFiled February 28, 1964.\\nNo. 35573.\\nCline, Williams, Wright, Johnson, Oldfather & Thompson and Charles E. Wright, for appellant.\\nHealey & Healey, for appellee.\\nM. M. Maupin and Clinton J. Gatz, Jr., amici curiae.\\nHeard before White, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"word_count\": \"3231\", \"char_count\": \"18832\", \"text\": \"Carter, J.\\nThis is an action brought by the plaintiff on an automobile insurance contract issued by the Hartford Accident and Indemnity Company. A jury was waived. The trial court found for the plaintiff and entered judgment against the defendant in the amount of $6,423.52. The defendant appeals.\\nThe defendant was the insurance carrier for the City Sanitary Exterminating Company. Its policy of insurance covered a 1958 Chevrolet station wagon belonging to the insured, providing liability coverage with limits' of not less than $10,000 for bodily injury to each'person and not less than $5,000 for property damage for each occurrence arising out of the maintenance and use of the station wagon. By the terms of the policy defendant agreed to defend any suit alleging bodily injury or property damage payable under the terms of the policy and to pay all costs taxed against the insured and all interest accruing after the entry of judgment. On February 10,1961, the station wagon, while driven by Robert A. Holder, was involved in an accident with the automobile of the plaintiff. Defendant was notified of the occurrence of damage. Plaintiff commenced an action against Holder for personal injury and property damage. Demand was made upon defendant to defend the action, which was refused. Holder employed counsel and defended the action. During the course of the trial the parties agreed upon a judgment in the amount of $4,500 and costs in the amount of $37.05, which was duly entered. No appeal was taken from this judgment and it has become final. Plaintiff commenced this action against the defendant insurance company to collect the judgment for $4,500 and the costs amounting to $37.05, and accrued interest thereon in the amount of $280.59. The foregoing facts are not in dispute.\\nThe primary question is whether or not Robert A. Holder is an additional insured under the provisions of the insurance policy. The definition of the insured as contained in the insurance policy provides in part as follows: \\\"The unqualified word 'insured' includes the named insured and also includes , and (2) under coverages A and C, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission,\\nThe insurance policy was issued to the City Sanitary Exterminating Company, a corporation. Monroe Usher is the president of the corporation and the sole owner of its stock. The station wagon was described in the policy as being used for pleasure and business. The term \\\"pleasure and business\\\" was defined by the policy as follows: \\\"The term 'pleasure and business' is defined as personal, pleasure, family and business use.\\\"\\nThe evidence shows that Monroe Usher used the station wagon daily for his personal use. He drove it to and from work, keeping it at his home at night. His wife drove the station wagon when she needed it, and it was driven by the sons of Monroe Usher on occasion. While owned by the corporation, it was used by Monroe Usher as a family-purpose car, a use within the purposes of use as defined in the insurance policy.\\nMonroe Usher had a son, Douglas, who was approximately 17 years of age on February 10, 1961. He had an automobile which was maintained for his use which was shopped for repairs on the above date. He requested permission of his father to use the station wagon during the evening of February 10, 1961, for the purpose of transporting Robert A. Holder and two young ladies to and from a basketball game. Permission to so use the station wagon was granted. Nothing was said about any restrictive use or operation of the station wagon that evening. There is evidence in the record that Monroe Usher had told Douglas on previous occasions that he was not to permit anyone else to drive the family cars while he was using them. There is evidence in the record that the automobile used by permission of the father was not to be driven outside the city of Lincoln. The latter evidence is not material here, for the reason that the accident did not occur during the period of the alleged deviation.\\nDouglas proceeded to take Holder and the two girls to the basketball game. Thereafter they proceeded north of Lincoln for several miles, Douglas doing the driving. Douglas developed a headache and he either requested or permitted Holder to assume the operation of the automobile. After their return to Lincoln, and while Holder was driving, the accident occurred which became the subject of the present litigation.\\nIt is contended by the defendant that the omnibus clause of the policy does not make Robert A. Holder an additional insured for the reason that he was not granted permission by the insurer or the named insured to operate the station wagon. The plaintiff contends on the other hand that permission was given to Douglas Usher to use the station-wagon and that he was using it even though it was being operated by Robert A. Holder.\\nNo issue-is here made that there is any difference in -meaning of the terms \\\"use\\\" and \\\"actual use\\\" that would affect liability under the omnibus clause of the policy. Some courts have made a distinction as an escape from the strict interpretations placed on the words \\\"actual use.\\\" Protective Fire & Cas. Co. v. Cornelius, ante p. 75, 125 N. W. 2d 179. We think the effort to place different meanings on the two terms creates a distinction without a difference and that liability or non-liability does not depend upon which of the two terms are used in the language of the policy.\\nWe think the correct rule is stated in Maryland Cas. Co. v. Marshbank, 226 F. 2d 637, wherein it is said: \\\"As the basis for a contrary conclusion the plaintiff seeks to read the term 'use of the automobile' as contained in the policy definition as the equivalent of 'operation of the automobile' and on this premise it argues that Marsh-bank did not give permission to Charles to operate his automobile. We think, however, that the premise is unsound and that the plaintiff is attempting to create an ambiguity in the language of the policy definition in order by construction to resolve it in its favor. To us the language of the clause seems so clear as to require no construction. The fallacy in the plaintiff's position is that the words 'use' and 'operation', which it seeks to equate as synonymous, are in this setting words of quite different meaning. For the 'use' of an automobile by an individual involves its employment for some purpose or object of-the user while its 'operation' by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another. It is only the actual or particular use of the automobile at the time of the accident by the individual who is claiming to be an additional insured that he must show to have been with the permission of the named insured if he is to come within the definition of the policy here involved. Accordingly since it was proved that Charles had such permission it was unnecessary to show that he also had permission to act as driver of the automobile. This is the view taken generally in this country See, also, Johnson v. State Farm Mut. Automobile Ins. Co., 194 F.2d 785; Persellin v. State Automobile Ins. Assn., 75 N. D. 716, 32 N. W. 2d 644; Schimke v. Mutual Automobile Ins. Co., 266 Wis. 517, 64 N. W. 2d 195.\\nDefendant asserts the result is controlled by Witthauer v. Employers Mut. Cas. Co., 149 Neb. 728, 32 N. W. 2d 413; State Farm Mut. Automobile Ins. Co. v. Kersey, 171 Neb. 212, 106 N. W. 2d 31; and Christensen v. Rogers, 172 Neb. 31, 108 N. W. 2d 389. We think thes\\u00e9 cases are distinguishable. In the Witthauer case this court said with reference to the alleged permittee: \\\"His supervisors did not know that he was using the truck. He had not asked permission to take the truck that noon to go to lunch and hence specific permission was neither denied nor granted. He had never asked permission to take the truck to go to lunch. He had never used it for that purpose before. He took the truck without permission. He was not on any company business when m\\u00e1king the trip. He had no specific authority to make the trip and it was contrary to his general orders.\\\" Under these findings of fact this court held under a similar omnibus clause that the actual use of the truck at the-time of the accident was without the permission of the named insured. It is not, und\\u00e9r the circumstances shown, authority for denying liability in the instant case where it is admitted that permission was given.\\nIn the Kersey case the court denied liability for the reason that the minor daughter of the insured had neither express nor implied permission to drive the automobile on the public highway. Without permission she was not an additional insured under the standard omnibus clause of insured's policy. The case is not authority for the contentions advanced by the defendant.\\nIn the Rogers case there was no issue involving liability under an insurance policy. The question there raised was whether or not the family-purpose doctrine should be extended to include third persons not members of the owner's family who operated the family-purpose automobile with the son's permission but without the father's knowledge or consent. This court held: \\\"We conclude that the initial permission of an automobile owner to members of his family to use a family-purpose car does not include authority to delegate the driving of the automobile to a third person not a member of the family.\\\" Such issue in no way bears upon the contractual liability assumed by a written insurance contract.\\nWe conclude that the previous holdings of this court do not sustain the position of the defendant nor militate against that of the plaintiff on the question of additional insureds as defined in the omnibus clause contained in the policy.\\nDefendant further contends that the judgment obtained by the plaintiff against Holder did not create an obligation to pay on the part of Holder and does not therefore create a liability against defendant under the terms of the policy. It appears that during the course of the trial of plaintiff's case against Holder an agreement was entered into which permitted plaintiff to take judgment against Holder for $4,500 and costs, the plaintiff agreeing not to attempt collection from any assets of Holder other than any insurance policies in which he was in any manner covered. The personal injury and property damage coverage provisions of the policy obligated the insurer \\\"to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages .\\\" Defendant asserts that the judgment and agreement referred to create no legal obligation to pay on the part of Holder and, therefore, no obligation on the insurer to pay.\\nThe defendant is obligated under its insurance policy to defend the suit brought against Holder, an additional insured. This it refused to do. Holder was thereupon required to engage an attorney and provide his own defense. With the insurance company denying liability, Holder was entitled to use all reasonable means of avoiding personal liability. It was to his personal interest to consent to the $4,500 judgment and accept an agreement from the plaintiff not to execute on his property other than any rights to indemnity he might have in the designated insurance policies. The matter is of no consequence to defendant if its claim of nonliability is correct. Since its claim of nonliability has no validity, and it having declined to defend the action when called upon to do so, the defendant is in no position to attack the judgment in the absence of fraud, collusion, or bad faith. If the judgment was obtained in good faith, the insured may not again litigate the issues that resulted in the judgment. City of Omaha v. Yancey, 91 Neb. 261, 135 N. W. 1044; Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N. W. 2d 623. In the last case cited we approved the following quote from Fullerton v. United States Casualty Co., 184 Iowa 219, 167 N. W. 700, 6 A. L. R. 367: \\\"We are cited to a clause of the contract to the effect that the right of the insured to maintain an action against the company is limited to cases of 'loss actually sustained and paid in money in satisfaction of a judgment after trial of the issue,' and it is said that the payment to Mrs. Jacobson by plaintiff was by way of a settlement, and not in satisfaction of. a judgment. But this provision can avail the appellant nothing in this case. It repudiated its obligation to assume and carry the defense to final judgment; and, having abandoned the case, it left the assured at liberty to take up the defense and contest the claim to final judgment, or, if so advised, to make the most favorable settlement possible.\\\"\\n\\\"It is a well-settled principle that where a person is responsible over to another, either by operation of law or express contract, and he is duly notified of the pend-ency of the suit against the person to whom he is liable over, and full opportunity is afforded him to defend the action, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he appeared or not.\\\" 27 Am. Jur., Indemnity, \\u00a7 35, p. 478. See, also, 42 C. J. S., Indemnity, \\u00a7 32, p. 613; 50 C. J. S., Judgments, \\u00a7 811, p. 360; Hawkeye Casualty Co. v. Stoker, supra; Jones v. Southern Surety Co., 210 Iowa 61, 230 N. W. 381; American Fidelity & Casualty Co. v. Williams (Tex. Civ. App.), 34 S. W. 2d 396.\\nFraud or collusion in the obtaining of the judgment \\u00e1g\\u00e1inst Holder was not pleaded nor proven in the instant case. Defendant asserts the unreasonableness of the judgment awarded plaintiff against Holder. Assuming that the unreasonableness of such a judgment bears upon the question of fraud or collusion; we point out that this case was tried to the court and that the judgment of the court has the effect of a jury verdict. There was evidence in the record that the judgment was reasonable and within the range of a possible jury verdict. The trial court's judgment was supported by evidence and, it not being clearly wrong, no basis exists for any interference by this court with the judgment entered.\\nWe necessarily conclude that the judgment that plaintiff obtained \\u00bfgainst Holder created a legal liability within: the meaning of the policy. The judgment, interest, and costs in the amount of $4,817.64 were properly in- eluded in the-judgment .against the defendant.\\nThe trial court allowed plaintiff an attorney's fee of $1,605.88. Defendant assigns this as error in, that the allowance is unauthorized and, if authorized, it , is excessive. Section 44-359, R. R. S. 1943,. provides that.in all cases where the beneficiary or person entitled thereto brings an action on an insurance policy, the court, upon rendering judgment against the insurer, shall allow the plaintiff a reasonable sum as an attorney's fee to be taxed as costs and, if the cause is appealed, an additional attorney's fee shall be allowed by the- appellate court for the appellate proceedings.\\nIn Andrews v. Commercial Cas. Ins. Co., 128 Neb. 496, 259 N. W. 653, the court dealt with this issue in the following language: \\\"The statute authorizes a reasonable sum as an attorney's fee to be taxed as costs in addition to a judgment on a liability insurance policy. Comp. St. 1929, sec. 44-346. While the allowance is reviewable on appeal, the trial court, in view of all the facts and circumstances, determines in the first instance, in the exercise of sound discretion, what is a reasonable sum. An arbitrary percentage of the recovery on the policy is not necessarily the test. Among the factors in the problem, the court may consider the amount involved; the responsibility assumed; the questions of law raised; the time and labor necessarily required in the performance of duties; the result of service performed; professional diligence and skill. In re Estate of Rhea, 126 Neb. 571. Whatever is shown in these particulars or observed by the trial judge in the course of the proceedings is open to him for consideration. With these factors in mind, there does not seem to have been an abuse of discretion or an excessive allowance, when the entire record is considered.\\\"\\nThe trial court in the case before us allowed an attorney's fee in the amount of 33% percent of the judgment. There is evidence in the record that plaintiff's attorney was handling the case on a contingent fee basis, although the percentage of the recovery to be retained as an attorney's fee is not stated. The allowance of a reasonable attorney's fee under section 44-359, R. R. S. 1943, has no relation to the fee contracted for on a contingency basis. The contingent fee involves risks that are not pertinent to a reasonable attorney's fee for services rendered. There is no evidence in the record as to what constitutes a reasonable attorney's fee for the services rendered in the case. The trial court in fixing the attorney's fee was governed solely by the proceedings had before him and what he observed therein. After considering all the elements to be considered in fixing an attorney's fee as herein stated, we think the amount allowed is excessive. We fix the amount of the attorney's fee in the district court at $1,000.\\nIn the instant case the trial court included the attorney's fee allowed as a part of the judgment on which interest was allowed at 6 percent per annum from the date of the judgment. Defendant assigns, this as error. An attorney's fee allowed under section 44-359, R. R. S. 1943, is taxable as costs and constitutes no part of the judgment. Wirtele v. Grand Lodge, A.O.U.W., 111 Neb. 302, 196 N. W. 510. Interest is properly chargeable on the judgment. \\u00a7 45-103, R. R. S. 1943. We have found no authority for assessing interest on attorney's fees constituting no part of the judgment.\\nWe modify the judgment by reducing the attorney's fee allowed by the trial court to $1,000 without interest. The judgment of the district court is otherwise affirmed. An attorney's fee of $400 is allowed for services in this court to be taxed as costs.\\nAffirmed as modified.\"}"
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+"{\"id\": \"5199842\", \"name\": \"State of Nebraska, appellee, v. Luigi Grayer, appellant\", \"name_abbreviation\": \"State v. Grayer\", \"decision_date\": \"1974-03-21\", \"docket_number\": \"No. 39215\", \"first_page\": \"523\", \"last_page\": 533, \"citations\": \"191 Neb. 523\", \"volume\": \"191\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:24:55.067676+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Boslaugh, McCown, Newton, and Clinton, JJ., and Colwell and Warren, District Judges.\", \"parties\": \"State of Nebraska, appellee, v. Luigi Grayer, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Luigi Grayer, appellant.\\n215 N. W. 2d 859\\nFiled March 21, 1974.\\nNo. 39215.\\nThomas P. Kelley, for appellant.\\nClarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.\\nHeard before White, C. J., Boslaugh, McCown, Newton, and Clinton, JJ., and Colwell and Warren, District Judges.\", \"word_count\": \"2810\", \"char_count\": \"17246\", \"text\": \"Newton, J.\\nThis is a post conviction proceeding. Defendant was 15 years of age at the time of his conviction for first degree murder while perpetrating a robbery. He entered a plea of guilty pursuant to a plea bargain wherein the prosecuting attorney agreed to recommend a life sentence. He contends error was committed in that: (1) Authorizing the county attorney to file charges' in either the juvenile or criminal courts, at his discretion, violates the Fourteenth Amendment to the Constitution of the United States, and Article I, section 3, Constitution of Nebraska; (2) without legislative guidelines for the exercise of such discretion there is a violation of Article II, section 1, Constitution of Nebraska; (3) there was an abuse of the prosecutor's discretion in failing to investigate the defendant's background; (4) the guilty plea was invalid because not fully understood by the defendant and because it was obtained by coercion; (5) defendant's counsel was inadequate; and (6) when under 16 years of age, a defendant must be proceeded against in the juvenile court. We affirm the judgment of the District Court overruling the defendant's motion to vacate and set aside the sentence.\\nThe constitutional questions raised are readily answerable. In DeBacker v. Sigler, 185 Neb. 352, 175 N. W. 2d 912, this court held that vesting in the county attorney a discretionary power to proceed against juveniles in the juvenile or criminal courts was not an unconstitutional practice and did not violate the precepts of due process. The question was before the court in United States v. Bland, 472 F. 2d 1329 (1972), and Cox v. United States, 473 F. 2d 334. (1973). Both cases dealt with a similar discretion vested in the Attorney General of the United States under federal statutes. Both cases hold: \\\"Congress could reasonably vest in Attorney General, rather than in a judge in a judicial proceeding, the responsibility of deciding whether or not to prosecute a juvenile as an adult.\\\" Cox v. United States, supra, The Bland case specifically states that such discretion does not violate due process.\\nThe two last-mentioned cases also answer defendant's contention that the prosecutor should have investigated more thoroughly. The Bland case states: \\\"While there may be circumstances in which courts would be entitled to review the exercise of prosecutorial discretion as to whether a person should be charged as a juvenile or as an adult, those circumstances would necessarily include the deliberate presence of such factors as race, religion or other arbitrary classification.\\n\\\"Due process does not require an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom.\\\"\\nThe Legislature has defined what acts shall constitute criminal offenses \\u2022 and specified punishments therefor. It has also created juvenile courts and determined who may be subjected to the jurisdiction of a juvenile court. It has not made this jurisdiction exclusive as pertains -to minors who have committed crimes. See State v. McCoy, 145 Neb. 750, 18 N. W. 2d 101. The laws of this state permit the prosecuting attorney to determine whether a felon of tender age shall be prosecuted in the juvenile court or in the District Court as an ordinary offender. The discretion so vested in the prosecuting attorney is akin to that permitting him to determine whether or not to prosecute, what charge should be made, and whether or not to dismiss, apply for immunity, or accept a plea to a lesser offense. All these matters represent necessary and essential decisions of an administrative character which of necessity are determined under varying factual circumstances. To fix reasonable legislative standards for the determination of such matters would be difficult and probably impossible due to the multiplicity of factual situations encountered. This same proposition was raised in People v. Handley, 51 Ill. 2d 229, 282 N. E. 2d 131, cert. den. 409 U. S. 914, 93 S. Ct. 247, 34 L. Ed. 2d 175. It is stated therein: \\\"Historically, the office of the State's Attorney has involved the exercise of a large measure of discretion in the many areas in which State's Attorneys must act in the performance of their duties in the administration of justice. We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State's Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purposes of the Act can be presumed to be considered by State's Attorneys in making determinations in these matters.\\\"\\nThe assertion that one under ,16 years of age must be referred to the juvenile court was answered in Fugate v. Ronin, 167 Neb. 70, 91 N. W. 2d 240, wherein this court held in the case of a 14-year-old defendant that: \\\"A careful study of the act clearly indicates it is not intended the juvenile court shall have exclusive jurisdiction and control of all juveniles. 'Juvenile courts do not have the sole or exclusive jurisdiction of chil dren under eighteen years of age who have violated our laws.' \\\" See, also, Kennedy v. Sigler, 397 F. 2d 556 (8th Cir., 1968), which arrives at the same result in a similar case.\\nIn regard to defendant's statement that the plea of guilty was not intelligently and voluntarily made, the record discloses that he was represented by an experienced lawyer who had some doubts as to his guilt and consulted the boy and his parents at length. The de-' fendant persistently insisted that he had committed the murder and, this factor, together with other evidence, convinced defendant's lawyer, and parents that a plea of guilty should be entered as a conviction seemed indicated if the case were tried. The decision to plead guilty was made after a full discussion and explanation to defendant and his parents and appeared to be free of any coercion. The facts do not sustain either defendant's contention that the plea was involuntary or that he was inadequately represented by counsel.\\nNo error appearing, the judgment of the District Court is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5203823\", \"name\": \"State of Nebraska, appellee, v. Oscar Lee Johnson, appellant; State of Nebraska, appellee, v. Rufus D. Jones, appellant\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"1974-01-04\", \"docket_number\": \"Nos. 39088, 39089\", \"first_page\": \"54\", \"last_page\": 56, \"citations\": \"191 Neb. 54\", \"volume\": \"191\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:24:55.067676+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Oscar Lee Johnson, appellant. State of Nebraska, appellee, v. Rufus D. Jones, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Oscar Lee Johnson, appellant. State of Nebraska, appellee, v. Rufus D. Jones, appellant.\\n213 N. W. 2d 716\\nFiled January 4, 1974.\\nNos. 39088, 39089.\\nFrank B. Morrison, Sr., and Stanley A. Krieger, for appellants.\\nClarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.\\nHeard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, and Clinton, JJ.\", \"word_count\": \"693\", \"char_count\": \"4057\", \"text\": \"Spencer, J.\\nDefendants, Oscar Lee Johnson and Rufus D. Jones, appeal their convictions on guilty pleas to one count of robbery and one count of using a firearm in the commission of a felony. We affirm each sentence as modified.\\nDefendants, with a Freddie Lee Williams who pro cessed a separate appeal, were apprehended in the commission of a robbery at Buehler Brothers Market in Omaha, Nebraska, on February 27, 1973. Pursuant to plea bargains, each defendant pled guilty to one robbery count and the use of a firearm in the commission of a felony. A second robbery count was dismissed pursuant to plea bargains, and the county attorney agreed that no other charges would be filed on offenses then under investigation.\\nDefendant Jones was sentenced to a term of 10 to 30 years in the Nebraska Penal and Correctional Complex on the robbery offense. He was also given a consecutive term of 5 years for use of a firearm in the commission of a felony.\\nDefendant Johnson was sentenced to a term of 15 to 45 years on the robbery count, and to a consecutive term of 5 years for use of a firearm in the commission of a felony.\\nBoth defendants, who at all stages were represented by the same counsel, assign as error the excessiveness of the sentences.\\nThe penalty for robbery is imprisonment in the Nebraska Penal and Correctional Complex for a term of not less than 3 years nor more than 50 years. \\u00a7 28-414, R. R. S. 1943. The penalty for the use of firearms in the commission of a felony is imprisonment in the Nebraska Penal and Correctional Complex not less than 3 years nor more than 10 years, and such sentence shall be consecutive to any other sentence imposed. \\u00a7 28-1011.21, R. S. Supp., 1972.\\nThe offenses to which the defendants pled guilty are very serious ones. Defendants predicate their claim of excessiveness on a comparison of sentences given other defendants who have been convicted of the same crimes. The sentences here are severe but are clearly within the range prescribed by the statutes. The rule is well established that where the punishment of an offense is left to the discretion of a court to be exercised within certain statutorily prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.\\nA review of the presentence reports establishes defendant Jones had no police record other than traffic offenses prior to his arrest herein. Defendant Johnson served 6 months in the county jail for a burglary, was investigated in some other instances, and served 10 days on a misdemeanor. Johnson was 21 at the time of his arrest, and Jones 26. The records indicate drug use may have been a contributing factor to their problems.\\nIt is apparent that Johnson's sentence was more severe than the one meted out to Jones because of information in the presentence report identifying him as a participant in a robbery then under investigation. The defendants pled guilty pursuant to plea bargains. Considering their ages, and the fact that their crime careers are of recent origin and drug related, they should be good prospects for a rehabilitation program. This we believe may be more probable with a realistic sentence. As we view the record, justice would be served by a sentence of 5 to 15 years imprisonment in the Nebraska Penal and Correctional Complex on the robbery count.\\nThe judgment of the District Court is so modified in each instance to provide that the sentence on the robbery count shall be imprisonment in the Nebraska Penal and Correctional-Complex for 5 to 15 years. Each judgment in all other respects is affirmed.\\nAffirmed - as modified.\"}"
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+"{\"id\": \"5204842\", \"name\": \"State of Nebraska, appellee, v. Tom Ray Hoppes, appellant\", \"name_abbreviation\": \"State v. Hoppes\", \"decision_date\": \"1979-02-20\", \"docket_number\": \"No. 42065\", \"first_page\": \"383\", \"last_page\": 391, \"citations\": \"202 Neb. 383\", \"volume\": \"202\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:36:58.327723+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Krivosha, C. J., Spencer, Boslaugh, McCown, Clinton, Brodkey, and White, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Tom Ray Hoppes, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Tom Ray Hoppes, appellant.\\n275 N. W. 2d 608\\nFiled February 20, 1979.\\nNo. 42065.\\nPaul E. Watts, Gerald E. Moran, Robert C. Sigler, and Julianne M. Dunn, for appellant.\\nPaul L. Douglas, Attorney General, and Robert F. Bartle, for appellee.\\nHeard before Krivosha, C. J., Spencer, Boslaugh, McCown, Clinton, Brodkey, and White, JJ.\", \"word_count\": \"2382\", \"char_count\": \"14002\", \"text\": \"Spencer, J.\\nThis is an appeal from a denial of post conviction relief. Defendant assigns as error: (1) The failure to find a denial of effective assistance of counsel; and (2) a finding that his plea of guilty to second-degree murder was not obtained in violation of his constitutional rights. We affirm.\\nDefendant was being held in the county jail on felony charges for possession of and intent to manufacture marijuana. At the same time he was under investigation by the police concerning the recent disappearance of his wife. Defendant's mother retained Paul Gaiter, a Lincoln attorney, to represent her son. She told Gaiter her son was in custody on other felonies but was also suspected of something in connection with the disappearance of his wife. Gaiter, who was leaving for Colorado, assigned Arthur Langvardt, one of his associates, to handle the matter until his return.\\nLangvardt interviewed Hoppes at the county jail. He learned the Lincoln police had been extensively questioning Hoppes in respect to his wife's disappearance. Hoppes had been visiting with the authorities and seemed to be under considerable stress. Langvardt advised defendant not to talk any further with anyone about any alleged crimes. Upon discussion with the county attorney's office about obtaining Hoppes' release, Langvardt learned the authorities considered him the primary suspect in his wife's disappearance. The police had discovered items at the place of his wife's employment indicating a quarrel and a struggle. The defendant had facial abrasions. He had also made some inconsistent statements to the police. This heightened their suspicions. Langvardt arranged for bond, and defendant was released from custody on January 5, 1976.\\nThat same day defendant met with Langvardt at his office. He told Langvardt he was responsible for the death of his wife, and that he wanted to turn himself in. He also told him where the victim's body could be found. Langvardt told Hoppes he did not want to tell him what to do at that time. Langvardt then consulted with Hal Bauer, one of his senior associates, and the two of them made a telephone call to Gaiter in Colorado to discuss what to do next. Gaiter \\\"didn't think it was a bad idea\\\" to turn Hoppes in to the authorities \\\"if that's what Tom wanted to do.\\\"\\nLangvardt advised defendant not to talk to anyone other than counsel about the matter until his attorneys could consult with one another and further investigate the possible legal strategy. Langvardt also personally investigated the area of the lake where his client had stated the body could be found. He noted the area was a shallow inlet frequented by ice fisherman. It appeared to him the discovery of Mrs. Hoppes' body was probably imminent.\\nThe attorneys then weighed the advantages and disadvantages of the defendant coming forward and disclosing to the authorities the location of his wife's body and the implied admission of his responsibility for her death. In this respect they were convinced from defendant's story to them that his wife's death had been accidental. They believed it might be better strategy to give the police the location of the body rather than to let them make that discovery on their own.\\nBauer and Langvardt accompanied defendant to the courthouse where on the record Bauer stated they were there for the purpose of turning Hoppes in on an alleged crime. Bauer stated that Hoppes had admitted to them he was responsible for the death of his wife, and knew where the body was. Bauer further stated for the record that from what Hoppes indicated to them her death was accidental. He had not intended to cause the death. There had been an attack upon him to some degree. After the injury to Mrs. Hoppes he panicked, took her body to a lake near Lincoln, and the body was there at that time.\\nBauer testified at the post conviction hearing. He related what the defendant had told them as to how his wife met her death, how he had weighted the body down with tire chains from his automobile and with a wheel or other heavy object from the car, and had pushed the body through the ice where someone had been ice fishing.\\nThe evidence indicated Hoppes had been adamant in wanting to turn himself in. Bauer testified Langvardt brought defendant into his office because defendant wanted to turn himself in and Langvardt wanted some help in the matter. Defendant indicated he had been driving around, even out of the state, and was in a state of mental turmoil not knowing what to do. Bauer testified the lawyers concluded their responsibility was first, to advise Hoppes of his rights, and second, to handle the method in which he turned himself in, if he did that. They did not ask him to turn himself in. They did not attempt to either dissuade him or to persuade him. They advised him if the body was never found he might never be caught. Bauer suggested it weighed heavily on his mind that defendant had weighted the body with objects from his automobile and if the body was found it would be possible to connect defendant with the body. Bauer also considered that the lake was not deep and there was a strong possibility the body would be found.\\nThe thrust of defendant's assignment of ineffective assistance of counsel is his contention now that the attorneys should not have cooperated with him in turning himself in. He argues it was their responsibility to suggest to him the body might never be found and if so, he would never be charged with the murder. Bauer was asked this specific question: \\\"Did you ever advise the defendant that if the body \\u2014 that he should keep his mouth shut, not say anything and that if the body's never found, he could walk away from the crime?\\\" He answered: \\\"Yes. We discussed that. It's interesting what you're asking. We wondered about out [sic] duty to the Court at that time knowing that the Police were looking for a body, and I can say our duty to the Court was not considered in any way at all, that our decision was made strictly on the basis of what was best for him, and it was a matter of weighing the odds. On the one side of his leaving the body there, hoping that it would never be found, the odds there versus the benefits of turning himself in, and it was the decision that we decided he was better to turn himself in than to gamble that the body would never be found.\\\"\\nThe evidence clearly indicated defendant wanted to surrender to the police, acknowledge responsibility, and put an end to his ordeal. It is evident from the record defendant's attorneys, as a matter of strategy, decided it was best for them to go along with the defendant's idea of turning himself in. By doing so, they were lending credence to a possible defense of accidental death. It would also be possible to explain the disposal of the body because defendant panicked when he discovered his wife had been accidentally killed.\\nHoppes also argues he was denied his constitutional right to effective assistance of counsel because his attorneys failed to conduct an in-depth investigation of his case and failed to disclose the fact to him that the State had endorsed the name of Hal Bauer, one of his attorneys, on the information as a possible State's witness. There is no merit to this contention. The evidence clearly reflects that the defense strategy was focused not upon a possible trial but upon negotiation for a lesser charge.\\nFrom the record it appears the defendant was adamant in wanting to disclose his crime to the authorities. He instructed his lawyers to seek the least possible charge rather than investigate the evidence to prepare for trial. In this context the defendant could not possibly have feared the testimony of Bauer, one of his attorneys, even if any of it could have been admitted, since no trial was contemplated. Under such circumstances, there is no duty on the part of defense counsel to perceive an unspoken concern of the defendant about a potential v/itness and to advise him in connection therewith.\\nOf more moment in attempting to get a reduced charge was the fact defendant's lawyers were in possession of information that while Hoppes still had the body of his wife in his car he spent the night in bed with a girl friend. Gaiter was convinced this information was available to the prosecution. It would be very damaging evidence and would make it difficult to get the charge reduced. This fact weighed heavy in Gaiter's final conclusion to advise defendant to accept a plea bargain to second-degree murder, when the county attorney would not settle for manslaughter.\\nHoppes' next assertion is that he was under the influence of drugs at the time of his guilty plea to the extent that he did not fully comprehend what he was doing and consequently his plea was not knowingly, intentionally, and voluntarily made. Before Judge Fahrnbruch accepted defendant's plea, he asked Hoppes if he was under the influence of any alcohol, drugs, narcotics, or other pills. Defendant replied that he was not. The testimony of defendant on this issue therefore is severely impeached by his own earlier contradictory statement.\\nAn examination of the entire record of the plea hearing discloses that all of Hoppes' answers were responsive and coherent without any apparent confusion. This is particularly true of the answers he gave to the court in describing the argument and subsequent assault on his wife.\\nThe testimony of the witnesses who stood on either side of the defendant at his arraignment and plea, who had a particular interest in observing him, was that the defendant displayed no psychological or physiological symptoms of being under the influence of drugs. In addition to the prosecuting attorney and the defendant's counsel, the court reporter noted no faltering or hesitant responses by the defendant during the hearing which he recorded. The jailer having custody of the defendant testified he did not observe any drug-induced symptoms of the defendant immediately prior to or after the court hearing.\\nWe also note the defendant included the legally-prescribed drugs, Tedral and phenobarbital, among those he stated he had consumed prior to his plea. It is significant that his medical record in jail discloses that Tedral was not provided him until 22 days after his plea, and that phenobarbital does not appear until 3 days after his plea.\\nThe witnesses for the defendant on the drug issue were prisoners in the same jail, all of whom had felony records. The trial court weighed and determined the credibility of the witnesses. From the examination of the record as to the nature of the responses of the defendant, the crucial variance in the defendant's testimony as to whether he was under the influence of drugs at the time of his plea, as well as the indefiniteness of the record as to the kind, quantity, and effect of drugs claimed by the defendant to have been taken previous to his plea, it is evident to us the defendant did not sustain the required burden of proof on this issue.\\nDefendant further alleges that counsel were ineffective in that they did not advise him of his right of appeal. Previous to the sentencing, Gaiter had discussed appeal possibilities. There was no discussion about appeal after the sentencing. As the trial court noted, however, the defendant was in no way prejudiced by the lack of this specific advice since the sentence was in complete conformity with the plea agreement imposed, which was the one Gaiter advised defendant would be imposed. Also, the sentence imposed was within the statutory limits provided for the crime of second-degree murder.\\nPrevious to the sentencing Gaiter had done extensive research into the actual time Hoppes would serve in prison prior to becoming eligible for parole. He proved to the authorities and those who questioned his result that they were wrong and that his interpretation was eventually accepted as the correct one. This demonstrates the thoroughness and effectiveness of defendant's counsel in respect to the sentencing issue.\\nWe have no hesitancy in saying that on the facts in this case the failure of Gaiter to discuss with the defendant a possible appeal after sentencing does not indicate ineffectiveness of counsel. Where a plea of guilty is made pursuant to a plea bargain and the sentence is in complete conformity with the plea agreement, it is not reversible error for the attorney to fail to advise the defendant of appeal possibilities.\\nWhile matters relating to sentences imposed within statutory limits do not form a basis for post conviction relief, see State v. DeLoa, 194 Neb. 270, 231 N. W. 2d 357 (1975), there is no basis apparent in the record on which this sentence would have been dis turbed on appeal. Further, the evidence on the voluntariness of the plea, the only other possible issue on appeal, has been determined herein. We are convinced the plea was knowingly, intentionally, and voluntarily made.\\nWe are in full agreement with the trial court. The defendant wholly failed to prove ineffectiveness of counsel. We held in State v. Haynes, 192 Neb. 445, 222 N. W. 2d 358 (1974): \\\"Where defendant's trial counsel performs at least as well as a lawyer with ordinary training and skill in the criminal law and conscientiously protects his client's interest, he has met the criteria of effective trial counsel.'' We have no hesitancy in finding that defendant's counsel adequately met this test. There was no basis in the record before us on which the trial court could have found the defendant was materially prejudiced in the way his case was handled by his counsel.\\nThe judgment of the trial court is correct and is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5205583\", \"name\": \"State of Nebraska, appellee, v. Ward Price, appellant\", \"name_abbreviation\": \"State v. Price\", \"decision_date\": \"1979-02-06\", \"docket_number\": \"No. 42048\", \"first_page\": \"308\", \"last_page\": 324, \"citations\": \"202 Neb. 308\", \"volume\": \"202\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:36:58.327723+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Spencer, C. J., Pro Tern., Boslaugh, McCown, Clinton, Brodkey, and White, JJ., and Rist, District Judge.\", \"parties\": \"State of Nebraska, appellee, v. Ward Price, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Ward Price, appellant.\\n275 N. W. 2d 82\\nFiled February 6, 1979.\\nNo. 42048.\\nDaniel W. Ryberg, for appellant.\\nPaul L. Douglas, Attorney General, and Jerold V. Fennell, for appellee.\\nHeard before Spencer, C. J., Pro Tern., Boslaugh, McCown, Clinton, Brodkey, and White, JJ., and Rist, District Judge.\", \"word_count\": \"5084\", \"char_count\": \"29487\", \"text\": \"White, J.\\nDefendant-appellant was charged with the murder of Tracie Tate, the daughter of defendant's wife Virginia.\\nThe defendant was convicted by a jury of murder in the second degree and was sentenced to a term of life imprisonment in the Nebraska Penal and Correctional Complex. The defendant appeals and makes 13 assignments of error in this court. They generally relate to six separate categories: (1) The overruling of the plea in abatement challenging the sufficiency of the preliminary hearing; (2) the admission of five exculpatory statements made by the defendant; (3) the admission of a prior inconsistent statement of a witness and refusal of the trial court to permit the defendant to introduce evidence of a prior inconsistent statement of an impeaching witness; (4) error in refusal to dismiss the first degree murder charge or, in the alternative, to reduce the charge to second degree murder or manslaughter; (5) failure to give NJI No. 14.52A; and (6) claim that the sentence was excessive.\\nTracie Lynne Tate was born on June 14, 1975, and was slightly over 2 years of age when she died on June 22, 1977. The defendant and the victim's mother, Virginia, lived at apartment 11, 4606 Red-man Street, Omaha, Nebraska, on the third floor of a 2y2 story brick apartment building at that address. The apartment building consisted of a level of semi-basement apartments, sometimes referred to as garden apartments, with 2 full stories above the level of the garden apartments. The apartment exited onto a wooden porch landing encompassed by an iron railing. The first flight of steps from the apartment down consisted of 13 wooden stairs onto a concrete landing and then a separate flight of wooden steps consisting of 7 or 8 stairs. The evidence most favorable to the State established that Tracie's mother, Virginia, left the apartment at approximately 4 p.m., on June 22, 1977, with an individual by the name of Lee Carter to go to her mother's apartment and from there proceeded to the area of 24th and Lake Streets in Omaha, Nebraska. When Virginia left her apartment, Tracie was sleeping and was left in the care of the defendant. Virginia had gone to 24th and Lake Streets to sell prescription drugs which she had obtained that day. At approximately 8 p.m., that evening, Virginia telephoned to her apartment and spoke to the defendant after Clifford Jones, a friend of the defendant and Virginia, met her on the street and told her that she was to go home or to call home. Virginia testified that during the telephone conversation the defendant informed her Tracie had fallen down some stairs, that she had blood on her feet, that he was going to give her a bath, and that Virginia should come home at 1 a.m. Virginia testified she was not worried about Tracie because: \\\" the way he was talking, it was like she just fell and wasn't hurt.\\\" At 2:30 a.m., Virginia again called home and was informed by the defendant that \\\"he couldn't get Tracie awake.\\\" Virginia arrived home shortly thereafter and found the defendant giving mouth-to-mouth resuscitation to Tracie. The rescue squad of the Omaha fire department was summoned. Fire Captain Stolinski found Tracie lying on a bed, examined her for vital signs, found none, and then took her to Immanuel Medical Center. She was accompanied by Virginia and the defendant. Tracie was pronounced dead shortly af ter arrival at the hospital by Dr. Dean McGee, the physician on duty in the emergency room at Immanuel Medical Center. He testified that when he examined Tracie at 3:19 a.m., she had been dead for some 5 to 7 hours. Tracie had no clothes on at the time he examined her. Dr. McGee testified that Tracie had blood present in the left ear canal, extensive contusions or bruising of her head, a large hematoma or blood clot swelling in the back of the head in the occiput area; two discolored areas about the ankles on the dorsum or top side of the feet which appeared to him to be eschar or healing type of scabbing that occurs following a bum; and multiple puncture-type wounds on the soles of both feet, around the pubic or vaginal area, and scattered over the buttocks. Tracie's body was then taken to the Douglas County morgue where Dr. Blaine Roffman, a specialist in pathology, performed an autopsy. Externally, Dr. Roffman found a purplish discoloration and swelling of the entire forehead which extended bilaterally to and beyond both ears. He found the same type of discoloration around both parts of the external openings of the nose along with a great deal of swelling in both lips. There were tears in the mucosis side of the lower lip or the inside portion of the lower lip, and discoloration around both eye areas. He observed a small amount of blood in the left ear canal. Dr. Roffman also observed pink discolored areas on the tops of both feet showing sloughing of the superficial layer of skin which represented to him defects which are similar to second degree bums, a superficial abrasion on the right heel, and a 1-centimeter abrasion on the inner aspect of the left heel. The vaginal canal was bloody and there was a tear in the vaginal canal which measured 11 millimeters, or approximately y2 inch, and another tear in the left inner fold of the labia which is adjacent to the clitoris. The anal canal was also bloody and showed several small superficial tear lacerations. Dr. Roffman also observed many purplish pin-like marks on the buttocks, a slight scratch in the inner aspect of the right thigh, and little scratch abrasions on the left side of the neck. In the internal findings, Dr. Roffman's examination revealed hemorrhages on the right side of the thoracic cage at about the level of the eighth and ninth ribs. There was hemorrhage inside the muscle that surrounds these ribs. This, he observed, was superficial. He discovered the thymus gland, which is just underneath the chest cavity, showed some hemorrhage. An incision of the scalp was made and Dr. Roffman testified that the entire scalp was hemorrhagic and swollen showing a diverse pattern of recent hemorrhage. Hemorrhages were discovered in the right posterior occipital portion of the brain, i.e., the back lobe of the brain on the under surface, and on the left lateral lobe of the cerebellum. There was blood underneath the subarachnoid membrane which covers the brain proper. No cuts were observed on the skull itself. Over objection, Dr. Roffman was asked: \\\" based on your examination, do you have an opinion as to whether or not the skull was hit more than one time? A. Yes. Q. And what is that opinion? I think there had been some several blows to cause these types of injuries. Q. Am I correct in saying that there were indications of blows all around the head? A. There had to be multiple blows in various portions of the head to cause all that diffuse hemorrhage on the scalp, also in connection with the swelling and discolorations around the eyes and around the lips and lacerations of the lips could not have been sustained by one action. The age and the appearance of these wounds would be consistent with them all occurring within a short period of time.\\\" Dr. Roffman further testified that the tears and wounds in the vaginal area were inflicted shortly preceding death and the puncture wounds in the vaginal and posterior region were of recent origin. The burn injuries on the feet were consistent with a pouring-type injury according to Dr. Roffman and not an immersion-type injury.\\nDr. Roffman testified that the cause of death was cerebral edema and brain damage secondary to trauma to the head. \\\"Q. Are the blows to the head, then, the primary cause? A. Yes.\\\" Dr. Roffman was then handed a photograph of the area of the outside of the defendant's apartment building. 'Q. If the testimony had been or the evidence had been to the effect that she (Trade) had fallen from the second stair down a number of stairs, would that be consistent with your findings? A. The injuries which I have described would be inconsistent with a fall down these stairs of six or seven, eight or nine, or ten or eleven. The injuries that I have described to you are not consistent with a fall down these stairs, in my opinion.\\\" Dr. Roffman testified that he based his opinion on the numerous blows that would have been needed to have sustained the injuries to Tracie's head and the absence of any significant abrasion to the nose or other surfaces of the body; and, that the findings of the lacerations in the mouth, the vagina, and the anus were not consistent with a fall. Finally, Dr. Roffman was asked whether or not the injuries to Tracie's head were consistent with blows from a hand. The answer was \\\"Yes.\\\" The jury could have concluded from Dr. Roffman's testimony that Tracie Tate had been tortured, possibly sexually molested, and died as a result of a battering by blows to her head.\\nThe defendant's first group of errors assigned relate to the denial of his plea in abatement. The defendant suggests that the evidence was not sufficient to bind him over for trial on a charge of first degree murder. We said in Kruger v. Brainard, 183 Neb. 455, 161 N. W. 2d 520, and in State v. Franklin, 194 Neb. 630, 234 N. W. 2d 610, that the error, if any, in the ruling of the District Court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt. Defendant suggests that the holding in Kruger v. Brainard, supra, does not obtain under a first degree murder conviction where the defendant may be held without bail. The defendant in this case overlooks the fact that bail was set at $50,000 with the option of the defendant to post a 10 percent amount thereof so that the theoretical denial of his constitutional rights by being denied of his liberty with an inadequate preliminary hearing does not here obtain.\\nThe defendant next complains he was denied his right of appeal or right of review of the hearing on probable cause. The defendant's contention may be answered easily by further reference to State v. Franklin, supra: \\\"We know of no principle which would require this court to entertain a pretrial appeal of the trial court's review of the decision of the magistrate binding the defendant over after a preliminary hearing. It would appear that our statutory provisions for preliminary hearings and our rule of practice under which the trial court itself reviews the magistrate's determination are clearly sufficient to meet the constitutional mandates of the Fourth Amendment to the Constitution of the United States.\\\"\\nThe defendant also complains and assigns as error that there were no specific findings of fact made by the trial court in the order denying the preliminary hearing. Defendant has not pointed out and we are not informed of any requirement that the findings of fact be specifically set out.\\nThe next assignments of error relate to the admission in evidence of statements by the defendant given to police officers at Immanuel Medical Center, where Trade Tate was taken, and at the apartment to which the officers and the defendant returned, at the officers' request, after Tracie was pronounced dead in the hospital; and of two other statements taken at the police station by police officers after the defendant was under arrest. We shall deal with the statements in order.\\nSergeant Thomas Gutchewsky arrived at Immanuel Medical Center at approximately 3:25 a.m., on June 23, 1977. He spoke with another officer who told him that Tracie Tate had died from a fall, that Tracie Tate was the daughter of Virginia, and that Ward Price was babysitting Tracie. He observed Tracie's body and testified that at that time he was suspicious, by reason of the bruises and bum marks, that the death was not accidental. He had conversation with the defendant. At that time Ward Price was not under arrest and was not in custody. Sergeant Gutchewsky asked the defendant what happened. The defendant stated that he was babysitting Tracie, that he took out the trash about 8:30 p.m., on June 22, and that he left the baby inside along with three of his acquaintances. While emptying the trash he saw the little girl come out and fall down 8 to 10 steps on the back stairway. He picked the baby up, took her inside, and bathed her. She was bleeding and crying. The entire conversation took approximately 5 minutes. Sergeant Gutchewsky and the defendant went to the scene. Sergeant Gutchewsky examined the stairs for blood, which would corroborate defendant's story, and finding none, placed the defendant Price under arrest. The arrest was made immediately after Ward Price said he wanted to go home; that they, the police, could call him later; and he then started to walk away.\\nMiranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, applies only to \\\"in-custody\\\" interrogation. Defendant's objection to the admission of the first statement is not well taken. Later decisions of the United States Supreme Court have caused some difficulty in drawing the line between custodial and noncustodial investigation. See 23 Loyola L. Rev. 1057. It is sufficient to point out that, at this point, the investigation was at a very preliminary stage. The testimony of Sergeant Gutchewsky indicates he had not finally determined that a crime had been committed. The actions of the defendant reveal that he felt he was free to go. We thus disagree with the contention that the statements were made to Sergeant Gutchewsky while the defendant was in custody.\\nThe second statement was made on June 23, at 6:30 a.m., in the Omaha police station. Officer K. G. Miller advised the defendant of his rights under Miranda v. Arizona, supra. This time the defendant Ward Price made a statement that Virginia left the apartment about 7:30 p.m. Four friends of the defendant dropped by to visit him at the apartment. All but one, Lee Carter, left prior to Tracie's injuries. According to this version, Lee went with the defendant to take some trash out and together they saw the baby fall down the steps. At some point, unspecified in time, he told Lee to go out and contact Virginia to inform her of the injury. The interview lasted approximately 1 hour 15 minutes.\\nThe third statement was taken at approximately 7:45 p.m., on June 23. The defendant was interviewed by an Officer Gregory Thompson of the Omaha police department. The defendant was again advised of his rights and told essentially the same story as in the second interview, except that this time Lee Carter stayed in the house while Price took out the garbage. He also stated that Tracie's feet had been burned about a week prior to her death when Tracie's mother spilled cooking oil on them. The interview lasted approximately 1 hour 10 minutes.\\nThe fourth statement began at 10:30 p.m., at the police station. Sergeant Michael Fleharty interviewed the defendant. Again the defendant's rights were read to him and the defendant again waived them. He told essentially the same story except that now both the defendant Ward Price and Lee Carter were inside when Tracie walked out onto the back steps and fell. Sergeant Fleharty then confronted Ward Price with a contrary statement from Lee Carter whereupon Ward Price changed his story to say that Lee Carter agreed to watch the child while Price took out the garbage. In return, the defendant would give Carter some Valium. The baby fell during this time.\\nThe fifth interview occurred on June 24, 1977, at 9:45 a.m. The defendant asked the jailer if he could again see Officer Miller who had conducted the second interview. Officer Miller again advised the defendant of his rights and the defendant waived them. The defendant then told Miller that he, Price, was not even present when the fall occurred. He claimed he had left the baby with Lee Carter and borrowed Lee's car to go purchase some cigarettes. Essentially, the defendant attacks the admission of statements two, three, four, and five into evidence by suggesting that when the defendant Ward Price walked away from the officer just prior to his arrest at the apartment, he had effectively terminated the interview and exercised his right to remain silent, and that an attempt to obtain a statement from the defendant within 2 hours after he had exercised that right is not overcome by a mere recitation of the Fifth Amendment rights. See Michigan v. Mosley, 423 U. S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313. The answer to this contention is simple. The showing made by the officer was sufficient for the court and the jury to find that the statements were voluntarily given after an understanding of the Miranda rights. The defendant does not deny that the statements were voluntary but alleges simply that his subsequent repeated waiver of the right to be silent was not effective. The State met the burden in each case and the statements were properly admitted.\\nAt a break in the trial, the prosecutor had occasion to speak with one Pamela King, a friend of Clifford Jones and the defendant. The substance of the conversation was that a week after the incident, Clifford E. Jones told Pamela King that he had seen Ward Price pour hot cooking oil on the baby. The statement of Clifford Jones in the possession of the prosecutor did not indicate this fact. The prosecutor informed the court and defense counsel of the conversation with Pamela King and requested the court's permission to endorse the name of Clifford Jones on the information. (He was a previously-named anticipated witness for the defense.) The prosecutor indicated that he intended to use Jones: \\\" it corroborates to some degree what all the evidence has been, that the injuries occurred at that residence were at the time he told me (in his statement) 9:00 o'clock at night and, yes, I intend to call witnesses to impeach him, assuming that he denies it.\\\"\\nThe defense objected on account of \\\"lack of statutory notice, and based upon this new so called impeachment evidence it does come as a surprise.\\\" The court allowed the endorsement of Clifford Jones as a witness. Subsequently Jones denied making the statement to King.\\nPamela King was called and the defendant requested, prior to her being asked to relate the conversation, for a cautionary instruction that the evidence was introduced solely to impeach the credibility of Jones. The court so instructed and the defendant does not here object to the form of the cautionary instruction.\\nWithout objection, in response to the prosecutor's request, Pamela King testified as to the conversation of Clifford Jones: \\\"A. Well, when he came over to the car, then he started telling us, he said, well, I was there, I was there when it happened, and every thing. And so we said, well, what happened, you know. He said that he had - he was in the kitchen and he saw Ward take boiling hot oil. He said it was hot oil, it was boiling hot, he said, and he poured it all over Tracie's feet, and he said it just turned white, he said, just white, he said, and he ran and he put her in the tub, a tub of cold water, and he said he kept saying, man, call the police, take her to the hospital, do something, man. And he said that he went into the bathroom, Cliff went into the bathroom to see about her, to, you know, lift her out of the tub, and when he lifted her up, she said, oh, help, help, no. He said she started crying and moaning and squirming and everything. He said he put her back in the tub and he said Tracie would talk. As soon as Ward came in the room, she just got quiet.\\n\\\"And Ward took her out of the tub, and he was supposed to have been, I guess, changing her diaper or something, and he went to lay her on the bed, and he said that Ward was feeling around Tracie's privacies and everything. He said he thought it was kind of strange the way he was doing it, you know, as if a man was going to be with a woman. He said, but, he said, it wasn't none of his business so he didn't say nothing. And so he said he had left and he said he came back and knocked on the door and Ward said who is it, who is it. He said it's me, you know. He said it took him a long time to come to the door, and then when he went in there, Ward had Tracie in the living room on the floor.\\n\\\"He said, man, she won't wake up, she won't wake up. He said, man, you ought to call the police, take her to the hospital, something. He said, no, man, no. Virginia would be mad at me, Virginia would be mad at me, what am I going to do. And he picked her up, and she was all limp, and her head just kind of fell back, and he said he wouldn't call the police or nothing.\\n\\\"And Cliff said that he left and he went down the street later that evening, and he said he told Virginia, he said, Virginia, you better call home, you better do something because your baby, something is wrong, you know. And he just - that is what he said Ward did.\\\"\\nAn instruction limiting the jury's consideration to credibility was again given at the close of the evidence, and the defendant does not object to the form of the instruction.\\nThe defendant had a copy of Clifford Jones' statement prior to trial. He did not request a continuance. The decision to allow Clifford Jones to be endorsed on the information was addressed to the discretion of the court and the court did not abuse this discretion. See Wilson v. State, 120 Neb. 468, 233 N. W. 461.\\nIn this court, the defendant broadens his attack. He first contends that the prosecutor knowingly used perjured testimony (of Jones) thus violating the Fourteenth Amendment rights of the defendant and requiring a new trial. The contention approaches frivolity. The statement that \\\"a prosecutor may not knowingly use perjured testimony\\\" is shorthand for the rule that he may not knowingly use perjured testimony for the purpose of obtaining a conviction. See, for example, Mooney v. Holohan, 294 U. S. 103, 55 S. Ct. 340, 79 L. Ed. 791. The direct conflict in the testimony does indeed suggest that the testimony of one or the other was false. But, unless some other rule was transgressed, it is not error to submit the testimony of both to the jury.\\nA second, more formidable argument is made by the defendant for the first time in this court. In State v. Isley, 195 Neb. 539, 239 N. W. 2d 262, this court affirmed the decision of the District Court rejecting an attempt by a defendant to introduce hearsay testimony under the guise of impeachment. It is the position of the defendant that a similar attempt, this time by the prosecutor, is apparent in the introduction of the testimony of Pamela King.\\nThe Rules of Evidence codified in sections 27-101 to 27-1103, R. R. S. 1943, are in large measure those proposed by this court's committee on practice and procedure which were in turn taken from the then newly proposed federal rules. However, some changes were made. Under proposed Rule 801 d (1) (A), evidence of a prior inconsistent statement of a witness, such as Jones' statement related by King, would have been admissible as substantive rather than just impeachment evidence. The Legislature rejected this change in existing law and continued to restrict, with certain exceptions not relevant here, such evidence to impeachment purposes. In doing so, it expressed its intention that convictions not rest on unsworn statements.\\nOn the other hand, the Legislature's apparent purpose in adopting section 27-607, R. R. S. 1943, was to codify the abandonment by this court in State v. Fronning, 186 Neb. 463, 183 N. W. 2d 920, of the ancient and universally criticized rule that a party \\\"vouches\\\" for the credibility of his own witnesses and may not impeach them. There is no indication that it also intended to create an exception to the limitation, referred to in the previous paragraph, on the use of prior inconsistent statements. The completely unrestricted use of section 27-607, R. R. S. 1943, would create the temptation for a party to introduce \\\"impeachment\\\" testimony when none was actually needed, leaving his opponent to rely on a possibly ineffective cautionary instruction.\\nIt is suggested in Graham, The Relationship Among Federal Rules of Evidence, 55 Tex. L. Rev. 573, that the requirements of \\\"surprise\\\" and \\\"affirmative damage,\\\" originally developed as exceptions to the voucher rule, be reinstated - not as a return to the old rule but to prevent the introduction of prior inconsistent statements for substantive purposes under the guise of impeachment. This court rejected those requirements when it rejected the voucher rule in State v. Fronning, supra, and their reinstatement here, for whatever reason, would likely engender unnecessary confusion. A balancing test is suggested in 3 Weinstein's Evidence, s. 607 (01), p. 40 (Cum. Supp. 1978). Under that test, evidence with dubious value for impeachment but a comparatively high prejudicial impact would be excluded under section 27-403, R. R. S. 1943. Had that test been applied here, it might have been determined that the State had little need to impeach Jones. He did say the defendant was administering mouth-to-mouth resuscitation to the victim, but the result of his testimony was hardly to exculpate the victim. In fact, Jones' testimony corroborated to some extent the time sequence presented by the State. The witness King was a friend and cousin of the victim's mother who had originally been under suspicion. Thus, the possibility of bias was present. It is a possibility then that the testimony of King should have been excluded.\\nBut even accepting that possibility, we do not feel compelled to reverse. Both King and Jones were present for cross-examination so there was no violation of defendant's constitutional right to confrontation. See Nelson v. O'Neill, 402 U. S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222. Furthermore, no objection was made, other than that of surprise, to the testimony of Jones and King. Errors alleged here but not presented to the trial court do not ordinarily constitute grounds for reversal. See State v. Brown, 174 Neb. 387, 118 N. W. 2d 328. More importantly, though, the evidence of guilt, other than that complained of, is so substantial that we do not hesitate to say that the error, if any, was inconsequential. The defendant invites speculation that the jury could have found that the victim was injured in a fall down some stairs. But neither the defendant nor anyone else testified such a fall actually occurred. There is, then, not one shred of evidence to contradict the circumstantial, but weighty, evidence that the victim died of injuries inflicted intentionally by the defendant. Errors in rulings on the admissibility of evidence which do not injuriously affect the substantial rights of the accused are not grounds for reversal. See State v. Hogan, 194 Neb. 207, 231 N. W. 2d 135.\\nThe defense further asserts as error the trial court's refusal to allow him to call on Fannie Claxton to testify that in a conversation with Pamela King a week before the death, King asserted that Tracie's burns were caused by accidental immersion in hot water. The trial court was in error in finding that section 27-613, R. R. S. 1943, requires that the witness to be impeached be given an opportunity to explain or deny the apparent inconsistent statement prior to its introduction. That foundational requirement may be met either before or after the introduction of the impeaching evidence. See Fenner, Competency and Examination of Witnesses Under Article VI of the Federal Rules of Evidence and the Nebraska Evidence Rules, 9 Creighton L. Rev. 559, at p. 599. Our decision as to the King testimony renders the question of impeachment of the impeaching evidence academic.\\nThe defendant's assertion that the court erred in failing to dismiss the murder charge or reduce the charge to manslaughter is likewise without merit. The only evidence of the cause of death, evidence by the pathologist, suggests - indeed demands - the conclusion that Tracie was battered and tortured repeatedly. Unquestionably the defendant was present and, in fact, in charge of the victim. The only other person shown to have been near the victim was Clifford Jones, who saw the victim after the injuries were inflicted. The evidence was sufficient to justify the trial court to charge first degree murder to the jury.\\nThe defendant next asserts that the trial court erred by refusing to submit NJI No. 14.52A to the jury (whether defendant was advised of his Miranda rights, as a prerequisite to a consideration of a confession or statement as evidence).\\nIn State v. Scott, 200 Neb. 265, 263 N. W. 2d 659, we said: \\\"We conclude that the trial court did not err in this case by refusing to give NJI No. 14.52A particularly in view of the fact that defendant did not request it.\\\" We now hold that a trial court is not required to give NJI No. 14.52A even if requested.\\nThe defendant contends that the sentence is excessive. It is not. The crime was shocking and indicative of a depraved mind. Any less sentence would depreciate the seriousness of the offense.\\nNo error requiring reversal being found, the judgment and sentence of the trial court are affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5218290\", \"name\": \"M. C. Kidder, appellant, v. Arnold Wright, appellee\", \"name_abbreviation\": \"Kidder v. Wright\", \"decision_date\": \"1964-05-29\", \"docket_number\": \"No. 35669\", \"first_page\": \"222\", \"last_page\": 228, \"citations\": \"177 Neb. 222\", \"volume\": \"177\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T23:05:47.253090+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"parties\": \"M. C. Kidder, appellant, v. Arnold Wright, appellee.\", \"head_matter\": \"M. C. Kidder, appellant, v. Arnold Wright, appellee.\\n128 N. W. 2d 683\\nFiled May 29, 1964.\\nNo. 35669.\\nDean L, Donoho, for appellant.\\nRobert V. Hoagland, for appellee.\\nHeard before White, C. J., Carter, Messmore, Yeager, Spencer, Boslaugh, and Brower, JJ.\", \"word_count\": \"1958\", \"char_count\": \"11193\", \"text\": \"Boslaugh, J.\\nThe plaintiff, M. C. Kidder, brought this action against Arnold Wright, the defendant, to recover the value of improvements constructed upon Section 36, Township 29 North, Range 34 West of the 6th P. M., in Cherry County, Nebraska. The land in question is school land owned by the State of Nebraska and is under the con trol and management of the Board of Educational Lands and Funds.\\nThe petition alleged that Pearl L. Kidder, the former wife of the plaintiff, acquired a lease to the land in 1948; that improvements were made on the land; that the lease was awarded to the plaintiff in a property settlement incident to a divorce action and that the plaintiff went into possession; that the lease awarded to the plaintiff was canceled in 1958 and a new lease was made to the defendant; that on May 26, 1958, the State of Nebraska and the defendant recovered judgment against the plaintiff in an action in forcible entry and detainer; that the defendant then went into possession of the land and removed and destroyed some of the improvements; and that the improvements on the land had a value of $6,000.\\nThe answer alleged that the county court of Cherry County, Nebraska, had on March 28, 1958, appointed appraisers to appraise the improvements upon the land; that the improvements were appraised at $615; that the defendant paid $615 into the county court of Cherry County, Nebraska; and that there had been no appeal from the report of the appraisers. The answer contained other allegations but they are not important to the disposition of this appeal.\\nThe reply was a general denial.\\nA pretrial conference was held and the parties stipulated the facts which were alleged in the pleadings which have been summarized. The defendant then filed a motion for summary judgment which was sustained. The plaintiff's motion for new trial was overruled and he has appealed. The plaintiff assigns as error the sustaining of the defendant's motion for summary judgment.\\nThe controlling question in this case is whether the appraisal of the improvements made pursuant to section 72-240.06, R. R. S. 1943, was binding upon the plaintiff. ; The plaintiff's theory of the case is that an apprais\\u00e1l under section 72-240.06, R. R. S. 1943, is not an exclu sive remedy, and that the appraisal which was made is not binding on him because he had no notice of the proceeding.\\nSubsection (1) of section 72-240.06, R. R. S. 1943, provides as follows: \\\"All authorized improvements on school land leases shall become the property of new lessees in all instances, and payment shall be made to the old lessees as herein provided. If the lease is to be made to- a person other than the former lessee, irrespective of whether the previous lease expired or was forfeited under the provisions of section 72-235, the Board of Educational Lands and Funds shall notify the former lessee and the new lessee by either registered or certified mail, when the lease is executed. If the parties are unable to agree as to- the value of all the improvements on the land, such improvements shall be appraised by a board of three appraisers to be chosen as follows: One by the former lessee, one by the new lessee, and one to be agreed upon by the two appraisers so chosen. If either party shall fail or refuse to appoint an appraiser within ten days after the acceptance of a bid by the Board of Educational Lands and Funds, upon application by the other lessee to- the county judge of the county wherein the land is located, the county judge shall appoint an appraiser for the party failing or refusing to appoint an appraiser. The appraisers shall each be allowed for his services in making the appraisement the sum of five dollars. Improvements to be included in such appraisement shall be all buildings, fencing, wells, windmills, p-umps, tanks, irrigation improvements, dams, drainage ditches, conservation terraces, trees, plowing for future crops, and alfalfa or other crops growing therin (thereon). The appraisement herein provided for shall be made within thirty days after the execution of the new lease, and the appraisement shall be filed within five days with the county judge of the county in which the land is situated. The county judge shall forthwith after the filing of - the appraisement notify by either registered or certified mail both the successful bidder and the former lessee of the action taken by the appraise ers. The new lessee shall pay all costs of the appraisement.\\\"\\nSubsection (2) of section 72-240.06, R. R. S. 1943, provides for an appeal to the district court by any party who is dissatisfied with the appraisement.\\nSection 72-240.06, R. R. S. 1943, provides the proceT dure for the appraisement of improvements on school land when a lease has been terminated by expiration or forfeiture. State ex rel. O'Brien v. Board of Commissioners, 116 Neb. 261, 216 N. W. 818. See, also, Jessen v. Blackard, 160 Neb. 557, 71 N. W. 2d 100. It is the remedy which the Legislature has provided where a new lease is to be made to a person other than the former lessee, and the parties are unable to agree as to the value of the improvements. The statute enters into and becomes a part of the contract between the state and each lessee. State v. Platte Valley Public Power & Irr. Dist., 147 Neb. 289, 23 N. W. 2d 300, 166 A. L. R. 1196. We think that the procedure prescribed in section 72-240.06, R. R. S. 1943, is an exclusive remedy that is binding upon all lessees of school lands.\\nThe plaintiff relies upon Mara v. Norman, 162 Neb. 845, 77 N. W. 2d 569. In the Mara case, this court held that under the circumstances in that case a former lessee of school land might have a common law action against subsequent lessees for conversion of improvements. The Mara case was decided after section 72-240.06, R. R. S. 1943, as it then existed, had been declared unconstitutional in Watkins v. Dodson, 159 Neb. 745, 68 N. W. 2d 508. At that time, as stated in Jessen v. Blackard, supra, there was no statutory definition of improvements on school lands, no provisions for their appraisement, no requirement that a new lessee should take or pay for the improvements, and no requirement that the old lessee surrender his improvements to the new lessee. Section 72-240.06, R. R. S. 1943, as appli cable in this case, was enacted in 1957. Laws 1957, c. 303, \\u00a7 1, p. 1107. The Mara case involved a situation where there was no statutory remedy and it is not applicable to the facts in this case.\\nThe remaining question is whether the appraisement of the improvements was binding upon the plaintiff even though he was not a party to the appraisal proceeding and had no notice of it. Due process of law requires that the owner of the property be given notice of the appraisal proceedings so that he will have an opportunity to protect his rights, Watkins v. Dodson, supra.\\nSection 72-240.06, R. R. S. 1943, as enacted in 1957, requires the Board of Educational Lands and Funds to notify the former lessee when a new lease is. to be made to another person. It further requires the county judge to notify both parties of the action taken by the appraisers after the appraisement has been filed with him.\\nThe parties, stipulated that the plaintiff was in possession of the land for several years prior to the date that the defendant went into possession and that the plaintiff was not a party to the appraisal proceeding and had no notice of it. They further stipulated that Pearl L. Kidder, the plaintiff's former wife, had notice of the proceeding and disclaimed any interest in the improvements, Thus, the question is whether notice to Pearl L. Kidder was sufficient compliance with the statute under the facts and circumstances in this case.\\nThe statute requires that notice be given to \\\"the former lessee.\\\" Section 72-241, R. R. S. 1943, provides that an assignment of a school land lease shall not be valid until recorded in the office of the Board of Educational Lands, and Funds. The petition alleged that the assignment of the lease to Pearl L, Kidder on May 24, 1948, was duly approved by the board. The parties stipulated that the lease of Pearl L. Kidder was canceled on January 27, 1958.\\nA report of a pretrial conference in State of Nebraska, Arnold Wright, plaintiffs, v. Milton C. Kidder, defendant, which was the forcible entry and detainer action referred to in the petition in this action, was received in evidence. The report shows that the parties in that action stipulated that no assignment of the lease from Pearl L. Kidder to the plaintiff had been approved by the Board of Educational Lands and Funds.\\nThe judgment against Milton C. Kidder, who is the plaintiff in this case, in the forcible entry and detainer action was affirmed by this court in State v. Kidder, 173 Neb. 130, 112 N. W. 2d 759. In that case we held that the decree in the divorce action was not binding upon the State and that Milton C. Kidder could not have obtained the approval of the Board of Educational Lands and Funds to the assignment of the lease from Pearl L. Kidder because the assignment was in violation of section 72-232, R. R. S. 1943, which prohibits the leasing of more than 640 acres of school land to one person unless he owns or operates the land on two> sides of the school land to be leased. In that case we said: \\\"The State was not a party to the divorce action, and is not bound by the judgment rendered therein. The decree in the divorce action, including the property settlement, while binding on the parties to the action, was in no manner binding on the State or the Board of Educational Lands and Funds. The Board of Educational Lands and Funds was not prevented from carrying out the statutory provisions relative to school lands, leaving the parties to the divorce action such rights and remedies as they may have between themselves. Whatever rights or remedies the parties have in the divorce action, if any, cannot defeat the statutory powers of the Board of Educational Lands and Funds in the leasing of school lands.\\\"\\nThe decision in State v. Kidder, supra, is controlling in this case. Pearl L. Kidder was the lessee of the land so far as the State of Nebraska and the defendant in this action are concerned. The possession of the plaintiff did not give him any rights in contravention of the statute and he was not \\\"the former lessee\\\" within the mean ing of section 72-240.06, R. R. S. 1943.\\nA motion for summary judgment is properly sustained where there is no genuine issue as to' any material fact and the moving party is entitled to judgment as a matter of law. Aria Cattle Co. v. Knight, 174 Neb. 360, 118 N. W. 2d 1. The record in this case shows that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law.\\nThe defendant's motion for summary judgment was properly sustained. The judgment of the district court is correct and it is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5227542\", \"name\": \"State of Nebraska, appellee, v. Joel D. Winchester, appellant\", \"name_abbreviation\": \"State v. Winchester\", \"decision_date\": \"1991-11-15\", \"docket_number\": \"No. 91-173\", \"first_page\": \"535\", \"last_page\": 540, \"citations\": \"239 Neb. 535\", \"volume\": \"239\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:43:36.070051+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Joel D. Winchester, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Joel D. Winchester, appellant.\\n476 N.W.2d 862\\nFiled November 15, 1991.\\nNo. 91-173.\\nThomas M. Kenney, Douglas County Public Defender, and Cheryl M. Kessell for appellant.\\nDon Stenberg, Attorney General, and Donald A. Kohtz for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.\", \"word_count\": \"1649\", \"char_count\": \"9715\", \"text\": \"Grant, J.\\nThis case is an appeal from the district court for Douglas County. The defendant, Joel D. Winchester, was convicted by the trial court, sitting without a jury, of first degree sexual assault, use of a knife in the commission of a felony, and first degree false imprisonment. After a hearing, the court determined that defendant was not a mentally disordered sex offender. Defendant was sentenced to 8 to 15 years' imprisonment for the sexual assault; 2 to 5 years for the use of a knife to commit a felony, to be served consecutively to the sentence for sexual assault; and 5 years for the false imprisonment, to be served concurrently \\\"with any other sentences.\\\" Credit was given on the sentences for time served. The defendant timely appealed, alleging that the trial court erred in determining the evidence was sufficient to support the convictions and in imposing excessive sentences. We affirm.\\nA conviction in the bench trial of a criminal case must be sustained on appeal if the evidence, viewed and construed in the light most favorable to the State, is legally sufficient to support that conviction. State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991). So viewed, the record shows the following: In the early morning hours of June 7, 1990, the victim willingly accompanied defendant, whom she had just met, to find a girl friend of the victim's. Defendant took the victim to an Omaha bookstore where defendant worked. After the victim entered the store, defendant's friendly attitude toward her changed. Defendant walked up behind the victim, grabbed her hair, and put a knife to her throat. Although the victim was struggling and pleading, the defendant forced her to the back of the building, stating, \\\"Do what you're told, or you're going to get killed, you bitch.\\\" The defendant either ripped or cut the victim's clothing and told her to take her dress off, which she did.\\nAfter much struggling, the defendant threw the victim to the floor and sat on her back. He continued to threaten the victim with the knife, \\\"swinging it around and scraping [the victim] with it on [her] arms and scraping [her] with the knife as he was trying to hold [her] down 'cause [she] was trying to get away.\\\" Defendant then pulled the victim's arms behind her back and bound them with duct tape.\\nIn her testimony the victim then described a \\\"thrust\\\" into her vagina. She thought the object thrust into her was either the handle of the knife or the defendant's fingers. She testified it was not defendant's penis. After this, defendant began to pick up books that had been knocked from the shelves during the struggle, while making strange statements such as \\\"Mommy's going to be mad.\\\" The victim was able to get away from him and to escape through the front door.\\nBy chance, two police cruisers were parked across the street from the small shopping mall in which the bookstore was located. A police officer testified that at about 3:30 a.m. the naked victim came running toward the cruisers, with her hands taped behind her back. She was hysterical and was screaming, \\\"He's trying to kill me. He's got a knife.\\\" The victim had cuts and scrapes on her arms, legs, and neck.\\nThe victim pointed out the defendant to the police officers. One of the officers tried to apprehend the defendant, but defendant ran into the bookstore and locked the door. The officer broke out the glass door, entered the store, and captured defendant at the back of the store. After the officer captured defendant, he removed a knife from defendant's person. The victim testified that it was the knife used in the assault.\\nThe victim did not tell officers at the scene that she had been sexually assaulted. She told them that the defendant had not removed his clothes during the assault. The victim was taken to the hospital and examined by a doctor, but no one did a vaginal examination, and the victim said nothing to any medical personnel about the penetration. The victim said she did not tell anyone about it because she did not realize that the penetration, which was obviously not penile penetration, constituted a sexual assault in the first degree.\\nThe victim first mentioned the penetration approximately 3 weeks later, when she told her husband about it. She testified that her husband encouraged her to tell someone about the penetration and that she told the prosecutor involved with the case the next time she was in contact with him. That next contact was about a week before the trial.\\nThe defendant was originally charged with attempted first degree sexual assault. A week prior to trial, after the victim informed the State prosecutor that there had been vaginal penetration, the State moved for leave of court to amend the information to charge first degree sexual assault. A preliminary hearing was held on the charges, and at its conclusion, the district court allowed the amendment and ordered defendant held for trial.\\nA criminal conviction will not be reversed if the evidence, viewed most favorably to the State, is legally sufficient to support the conviction. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991); State v. Johnson, 236 Neb. 831, 464 N.W.2d 167 (1991). When a case is tried to the court without a jury, the finding of the court has the same effect as a jury verdict. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990).\\nThis court may set aside a verdict in a criminal case as unsupported only \\\"when the evidence is so lacking in probative force that the court can say as a matter of law that the evidence is insufficient to support a finding of guilt beyond a reasonable doubt.\\\" State v. Frazier, 234 Neb. 107, 109, 449 N.W.2d 230, 231 (1989). Accord State v. Hai Dang, 220 Neb. 120, 368 N.W.2d 486 (1985).\\nIn the case before us, if the trial court determined that the victim was credible, her version of the facts fully supports a guilty verdict. When reviewing a conviction in a criminal case, the Supreme Court does not resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Those matters are left to the fact finder at the trial. State v. Johnson, supra. The trial judge in the case before us chose to believe the testimony of the victim, and that testimony is more than sufficient evidence to support the guilty verdict.\\nThe victim's explanation for her failure to immediately notify the officers and medical personnel of the sexual penetration is credible. It is not common knowledge among laypersons that anything other than penile penetration may constitute penetration sufficient to result in a sexual assault in the first degree. Neb. Rev. Stat. \\u00a7 28-319(1) (Reissue 1989) provides in substance that anyone who subjects another to sexual penetration by threats, force, or deception is guilty of first degree sexual assault. Sexual penetration includes within its definition penetration by \\\"any object manipulated by the actor into the genital or anal openings of the victim's body.\\\" Neb. Rev. Stat. \\u00a7 28-318(6) (Reissue 1989). The facts in this case, as testified to by the victim, support a determination that there was an intrusion into the body of the victim. We hold that there was sufficient evidence in this case to support the convictions and that defendant's first assignment of error is without merit.\\nDefendant next contends that the trial court erred in imposing excessive sentences. First degree sexual assault is a Class II felony, Neb. Rev. Stat. \\u00a7 28-319(2) (Reissue 1989), subject to a sentence of 1 to 50 years' imprisonment. Use of a knife to commit a felony is a Class III felony, Neb. Rev. Stat. \\u00a7 28-1205(2) (Reissue 1989), subject to a sentence of 1 to 20 years' imprisonment, a $25,000 fine, or both. First degree false imprisonment is a Class IV felony, Neb. Rev. Stat. \\u00a7 28-314(2) (Reissue 1989), subject to a maximum of 5 years' imprisonment, a $10,000 fine, or both.\\nSection 28-1205(3) provides that the use of a knife in the commission of a felony \\\"shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed.\\\" The Nebraska Supreme Court has held that this language is mandatory and the trial court has no discretion to order that the sentence be served concurrently. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).\\nThe sentences imposed on defendant are obviously within the statutory limits for each crime. This court will not disturb a sentence on appeal if the sentence is within the statutory limits and the sentencing court did not abuse its discretion. State v. Tuttle, supra; State v. Johnson, supra. Some of the factors a court should consider when imposing a sentence are the seriousness of the offense and the motivation for the offense, as well as a defendant's past criminal record and the amount of violence involved in the commission of the crime. State v. Thomas, 229 Neb. 635, 428 N.W.2d 221 (1988).\\nThe defendant in this case has an extensive criminal record, including convictions for burglary and sexually related crimes. The facts of this case, as set out above, show that great violence was involved in these crimes. The trial court did not abuse its discretion in imposing the sentences herein. Defendant's assignments of error are without merit.\\nAffirmed.\"}"
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+"{\"id\": \"5258802\", \"name\": \"B & R Stores, Inc., a Nebraska corporation, doing business as B & R IGA, appellee, v. City of Lincoln, Nebraska, appellant; B & R Stores, Inc., a Nebraska corporation, doing business as Super Saver II, appellee, v. City of Lincoln, Nebraska, appellant\", \"name_abbreviation\": \"B & R Stores, Inc. v. City of Lincoln\", \"decision_date\": \"1994-02-04\", \"docket_number\": \"Nos. S-91-1106, S-91-1107\", \"first_page\": \"76\", \"last_page\": 81, \"citations\": \"245 Neb. 76\", \"volume\": \"245\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:12:42.059425+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Fahrnbruch, and Lanphier, J J., and Grant, J., Retired.\", \"parties\": \"B & R Stores, Inc., a Nebraska corporation, doing business as B & R IGA, appellee, v. City of Lincoln, Nebraska, appellant. B & R Stores, Inc., a Nebraska corporation, doing business as Super Saver II, appellee, v. City of Lincoln, Nebraska, appellant.\", \"head_matter\": \"B & R Stores, Inc., a Nebraska corporation, doing business as B & R IGA, appellee, v. City of Lincoln, Nebraska, appellant. B & R Stores, Inc., a Nebraska corporation, doing business as Super Saver II, appellee, v. City of Lincoln, Nebraska, appellant.\\n511 N.W.2d 101\\nFiled February 4, 1994.\\nNos. S-91-1106, S-91-1107.\\nWilliam F. Austin, Lincoln City Attorney, and Dana W. Roper for appellant.\\nPaul J. Peter, of Bruckner, O\\u2019Gara, Keating, Hendry, Davis & Nedved, P.C., for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Fahrnbruch, and Lanphier, J J., and Grant, J., Retired.\", \"word_count\": \"1453\", \"char_count\": \"9160\", \"text\": \"Boslaugh, J.\\nPursuant to separate applications, the appellee, B & R Stores, Inc. (B & R), sought class D liquor licenses for grocery stores located at 2662 Cornhusker Highway and 1709 Washington Street in Lincoln. Proceeding under Neb. Rev. Stat. \\u00a7 53-132 (Cum. Supp. 1990), the city council of the City of Lincoln conducted a hearing on the applications on October 2, 1989, and by separate resolutions disapproved the applications. B & R then sought a review of the city council's denial of its applications by filing petitions in error in the district court in accordance with \\u00a7 53-132 and Neb. Rev. Stat. \\u00a7 25-1901 to 25-1908 (Reissue 1989). The district court reversed the city's denial of the liquor licenses and separately ordered the issuance of the licenses to B & R. The City of Lincoln now appeals from those orders.\\nThe district court based its decisions in these cases upon Neb. Rev. Stat. \\u00a7 53-134 (Cum. Supp. 1990). That section, as amended by 1989 Neb. Laws, L.B. 781, was determined to be unconstitutional in Kwik Shop v. City of Lincoln, 243 Neb. 178, 498 N.W.2d 102 (1993). Consequently, we determine these consolidated appeals on the basis of \\u00a7 53-132 (Reissue 1984). See, American Drug Stores v. City of Lincoln, 243 Neb. 548, 501 N.W.2d 278 (1993); Contemporary Indus. v. Nebraska Liq. Control Comm., 243 Neb. 345, 500 N.W.2d 525 (1993). Although the district court reviewed B & R's liquor license applications by an error proceeding, we now treat the cases as appeals and review the applications de novo on the record. See, American Drug Stores v. City of Lincoln, supra; Kwik Shop v. City of Lincoln, supra. See, also, Gas 'N Shop v. Nebraska Liquor Control Comm., 241 Neb. 898, 492 N.W.2d 7 (1992).\\nWe first note that B & R presently holds, and did hold at the time of filing its applications for the licenses at issue here, liquor licenses at locations directly abutting the two grocery store locations involved in this appeal. These liquor establishments are operated as separate businesses from the grocery stores. Initially, B & R sought merely to expand the defined locations covered by the liquor licenses which it now holds to include the grocery stores. This would allow grocery customers to access the liquor stores during the course of their grocery shopping and to purchase beer and alcoholic liquor through the grocery checkout counters rather than purchasing only groceries, then reentering the abutting liquor establishments and purchasing beer and alcoholic liquor separately. However, the city denied B & R's requests to expand the areas covered by its existing licenses, so in order to obtain the desired expansion of the areas covered by the licenses, B & R was left only with the option of applying for new licenses. See, City of Lincoln v. Nebraska Liquor Control Comm., 208 Neb. 630, 304 N.W.2d 922 (1981); City of Lincoln v. Nebraska Liquor Control Commission, 181 Neb. 277, 147 N.W.2d 803 (1967). Nevertheless, we point out that in reality, the effect of approving B & R's applications would only be to expand the areas covered by the two existing class D liquor licenses presently held by B & R, and not to increase the number of outstanding liquor licenses.\\nSection 53-132 (Reissue 1984) states in relevant part:\\n(2) A retail license . . . shall be issued to any qualified applicant if it is found by the commission that (a) the applicant is fit, willing, and able to properly provide the service proposed within the city . . . where the premises described in the application are located, (b) the applicant can conform to all provisions, requirements, rules, and regulations provided for in the Nebraska Liquor Control Act, (c) the applicant has demonstrated that the type of management and control exercised over the licensed premises will be sufficient to insure that the licensed business can conform to all provisions, requirements, rules, and regulations provided for in the Nebraska Liquor Control Act, and (d) the issuance of the license is or will be required by the present or future public convenience and necessity.\\n(3) In making its determination pursuant to subsection (2) of this section the commission shall consider:\\n(a) The recommendation of the local governing body;\\n(b) The existence of a citizens' protest made in accordance with section 53-133;\\n(c) The existing population of the city . . . and its projected growth;\\n(d) The nature of the neighborhood or community of the location of the proposed licensed premises;\\n(e) The existence or absence of other retail licenses or bottle club licenses with similar privileges within the neighborhood or community of the location of the proposed licensed premises;\\n(f) The existing motor vehicle and pedestrian traffic flow in the vicinity of the proposed licensed premises;\\n(g) The adequacy of existing law enforcement;\\n(h) Zoning restrictions;\\n(i) The sanitation or sanitary conditions on or about the proposed licensed premises; and\\n(j) Whether the type of business or activity proposed to be operated in conjunction with the proposed license is and will be consistent with the public interest.\\nOur review of the record shows that with respect to each application at issue here, B & R has met the license issuance criteria set forth in \\u00a7 53-132 (Reissue 1984). Nevertheless, in separate but similarly worded resolutions, the Lincoln City Council disapproved the applications and enumerated the reasons for its decisions. Those resolutions state:\\n5. The City Council determined that the type of business or activity proposed to be operated or presently operated in conjunction with the proposed license would not be consistent with the public interest as the application and evidence presented indicated that the business would not comply with Lincoln Municipal Code \\u00a7 6.08.100 pertaining to separate and distinct business activity....\\n7. The City Council determined that the applicant had failed to demonstrate compliance with present municipal ordinances specifically \\u00a7 6.08.100 of the Lincoln Municipal Code.\\nIn reversing the Lincoln City Council's disapproval of each of B & R's applications, the district court stated:\\nA predominant reason for denying the application was the conclusion of the Lincoln City Council that the applications would not comply with Lincoln Municipal Code \\u00a76.08.100 pertaining to separate and distinct business activity. That section was found to be unconstitutional by the District Court of Lancaster County, Nebraska in the case of Gas 'N Shop v. City of Lincoln, et al., Docket 435, Page 76. The ordinance has since been repealed by the City.\\nIn these appeals, the City of Lincoln acknowledges that its \\\"separate and distinct\\\" ordinance has been declared unconstitutional and does not assert that the ordinance provides sufficient grounds for denying the licenses sought by B&R.\\nAlso listed in the Lincoln City Council's resolutions as a basis for denying B & R's license applications was the recommendation by Lincoln chief of police Allen Curtis. However, that recommendation was premised upon Curtis' opinion of the merits of Lincoln's \\\"separate and distinct\\\" ordinance and was not otherwise supported by competent evidence. Consequently, the police chief's recommendation fails to support the city's disapproval of B & R's license applications. See Hy-Vee Food Stores v. Nebraska Liquor Control Comm., 242 Neb. 752, 497 N.W.2d 647 (1993) (City of Lincoln's reliance upon its \\\"separate and distinct\\\" ordinance to deny liquor license applications was inappropriate).\\nThe Lincoln City Council's resolutions also list a number of additional reasons for disapproving the B&R applications, including the absence of adequate law enforcement services in the areas; the existence of a sufficient number of liquor licenses to serve the areas; inadequate security in sales and display areas of the grocery stores where liquor was to be sold; and inconsistency with the promotion of the health, safety, and welfare of Lincoln residents. Such findings are unsupported by the record and are particularly fallacious in light of the existence of liquor licenses now held by B & R for contiguously located establishments. In these cases, the denial of B & R's applications would accomplish nothing more than to prevent consumers from more conveniently purchasing beer, wine, and alcoholic liquor from existing liquor outlets.\\nBecause B & R has met the license issuance criteria set forth in \\u00a7 53-132 (Reissue 1984), the decisions of the district court ordering the approval and issuance of the licenses sought by B & R are affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5266092\", \"name\": \"State of Nebraska, appellee, v. Frank R. Ladig, also known as Frank E. Ladig, appellant\", \"name_abbreviation\": \"State v. Ladig\", \"decision_date\": \"1994-07-29\", \"docket_number\": \"No. S-93-1016\", \"first_page\": \"542\", \"last_page\": 547, \"citations\": \"246 Neb. 542\", \"volume\": \"246\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T20:21:03.410508+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Fahrnbruch, Lanphier, and Wright, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Frank R. Ladig, also known as Frank E. Ladig, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Frank R. Ladig, also known as Frank E. Ladig, appellant.\\n519 N.W.2d 561\\nFiled July 29, 1994.\\nNo. S-93-1016.\\nR. Bradley Dawson and George E. Clough, of Clough, Dawson & Piccolo, for appellant.\\nDon Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Fahrnbruch, Lanphier, and Wright, JJ.\", \"word_count\": \"1622\", \"char_count\": \"9653\", \"text\": \"Per Curiam.\\nFrank R. Ladig, also known as Frank E. Ladig, was convicted of aiding and abetting second degree murder. The district court sentenced Ladig to life in prison, ordered that he be placed in solitary confinement on four separate dates each year, and ordered him to pay restitution. He assigns as error that the district court abused its discretion in imposing an excessive sentence and in ordering solitary confinement and restitution. We reverse the judgment and remand the cause for further proceedings.\\nFACTS\\nOn January 21, 1993, an information was filed in Lincoln County District Court which charged Ladig with aiding and abetting first degree murder and aiding and abetting attempted robbery in regard to the death of Richard Sterkel on July 28, 1992. Pursuant to a plea agreement, an amended information was filed on September 16, 1993, which charged Ladig with aiding and abetting second degree murder.\\nThe plea agreement, which was stated for the record, required that Ladig enter a no contest plea to aiding and abetting second degree murder and that he testify in the trial of Darrin McHenry, who was charged with first degree murder in Sterkel's death. The agreement provided that a sexual assault charge would not be filed against Ladig in Dawson County. With regard to sentencing, the plea agreement provided that the State could request that Ladig be sentenced to life in prison.\\nThe amended information stated that \\\"on or about July 28, 1992, [Ladig] did aid, abet, procure or cause another to intentionally, but without premeditation, kill Richard Sterkel\\\" in Lincoln County, Nebraska. The amended information did not allege that Ladig's actions were taken purposely and maliciously.\\nThe court accepted the plea, finding that there was a factual basis for the plea and that the plea was made knowingly, voluntarily, and intelligently. The court found Ladig guilty of aiding and abetting second degree murder, based on the evidence in the trial of McHenry. A Class I presentence investigation was ordered.\\nAt the sentencing hearing, the State requested the imposition of a life sentence with solitary confinement and restitution. Ladig informed the court that he had nothing to say before sentence was passed. The court opined that all three defendants involved in the death were equally culpable. The court then sentenced Ladig to life in prison and ordered Ladig to pay restitution, jointly and severally with the other two defendants, in the amount of $4,653.77. The court ordered Ladig to pay the court costs, but found them to be uncollectible. Ladig was not given credit for time served because there was no term to the sentence.\\nANALYSIS\\nThe amended information upon which Ladig was convicted and upon which his plea of no contest was entered was worded in the language of Neb. Rev. Stat. \\u00a7 28-304 (Reissue 1989) and did not allege malice as a specific element of the crime.\\nIn State v. Myers, 244 Neb. 905, 907, 510 N.W.2d 58, 62 (1994), we stated, \\\"[I]t was plain error to omit the element of 'malice' from the jury instructions defining second degree murder,\\\" and we reversed Myers' conviction for second degree murder and granted him a new trial.\\nOn appeal, Ladig does not assign as error the failure of the information to include malice in the charge. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id. In this case, we note plain error because of the failure of the information to include the element of malice.\\nIn State v. Grimes, ante p. 473, 519 N.W.2d 507 (1994), the information charging Craig T. Grimes omitted malice from the charge. We held that for an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused killed another purposely and maliciously.\\nIn State v. Manzer, ante p. 536, 519 N.W.2d 558 (1994), Christopher J. Manzer, as the result of a plea agreement, pled guilty to second degree murder, assault in the first degree, and use of a firearm to commit a felony. On appeal to this court, Manzer's sole assignment of error was the excessiveness of his sentences. In reversing his conviction for second degree murder, we held: \\\"[T]he failure to include malice as an element of murder in the second degree is plain error.\\\" Id. at 538, 519 N.W.2d at 559.\\nAccordingly, the judgment of conviction, the sentence, and the order for restitution must be reversed, and the cause is remanded for further proceedings.\\nReversed and remanded for FURTHER PROCEEDINGS.\"}"
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+"{\"id\": \"5303371\", \"name\": \"Norma J. Godden, Guardian and next friend and payee for Patricia A. Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees; Lawrence Ideus, Guardian and next friend and payee for Pamela Sue Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees\", \"name_abbreviation\": \"Godden ex rel. Dorn v. Department of Public Welfare\", \"decision_date\": \"1975-03-06\", \"docket_number\": \"Nos. 39620, 39628\", \"first_page\": \"269\", \"last_page\": 273, \"citations\": \"193 Neb. 269\", \"volume\": \"193\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:51:50.637199+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ,\", \"parties\": \"Norma J. Godden, Guardian and next friend and payee for Patricia A. Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees. Lawrence Ideus, Guardian and next friend and payee for Pamela Sue Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees.\", \"head_matter\": \"Norma J. Godden, Guardian and next friend and payee for Patricia A. Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees. Lawrence Ideus, Guardian and next friend and payee for Pamela Sue Dorn, a minor, appellant, v. Department of Public Welfare of the State of Nebraska et al., appellees.\\n226 N. W. 2d 627\\nFiled March 6, 1975.\\nNos. 39620, 39628.\\nVard R. Johnson, Terrence J. Ferguson, and Steven Swihart, for appellants.\\nClarence A. H. Meyer, Attorney General, E. D. Warnsholz, and Michael J. Rumbaugh, for appellees.\\nHeard before White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ,\", \"word_count\": \"1416\", \"char_count\": \"8370\", \"text\": \"Spencer, J.\\nPlaintiffs, as guardians and next friends, appeal the judgment of the District Court for Lancaster County affirming rulings of the Department of Public Welfare rejecting their applications for aid for dependent children (AFDC) for their minor wards. The wards are beneficiaries of a trust fund which if presently payable to them would make them ineligible for public assistance benefits. We reverse.\\nOn July 30, 1965, the county court of Gage County, Nebraska, distributed the proceeds of a wrongful death settlement in a case involving the mother of the wards. So far as material herein, the decree provided: \\\"That all the remainder of the proceeds, after the payment of costs herein ordered to be paid, should be placed in trust or in a guardianship fund for the benefit of the surviving children of Loretta Dorn, decedent, whose names are: Darrell Gene Dorn, Patricia Anne Dorn, Dennis Elmer Dorn, Bruce Allen Dorn and Pamela Sue Dorn, in equal shares, share and share alike, and said funds are to be used by the trustee or the guardian as may be directed by the Court for the direct benefit of the above named children and shall be used for their health, education, nurture, care and welfare in such amount and at such times as may be deemed necessary and proper upon application being made to this Court.\\\"\\nOn November 12, 1965, the county court ordered that the proceeds from the wrongful death settlement should be placed in trust at interest with the Beatrice National Bank and Trust Company for the benefit of the Dorn children. The terms of the trust were: \\\"That the best interest of the beneficiaries of the proceeds would be to place said funds in an interest-bearing savings account and to hold said funds for the benefit of the named children until there is a demonstrative need for paying any of said proceeds to any of the beneficiaries or until such funds are needed for their education or the necessities of life which cannot be provided for them by the father of said children or until they reach the age of 21 years.\\\" See \\u00a7 30-810, R. R. S. 1943.\\nThe issue presented in both cases is identical. Both wards had been receiving aid for dependent children. They were terminated when the Department of Public Welfare learned of the proceeds from the wrongful death settlement which was being held in trust by the Beatrice National Bank and Trust Company.\\nIt was not until January 13, 1971, that a legal guardian was appointed for Pamela Sue Dorn by the county court of Lancaster County. On July 13, 1971, the county court of Douglas County appointed a legal guardian for Patricia A. Dorn.\\nAfter welfare benefits were terminated, the guardians made application to the Gage County court for the use and possession of the trust funds. Each of the wards has a one-fifth interest in the fund, which at that time amounted to approximately $17,700. On June 25, 1973, the county judge held that no part of said funds could be used at the present time for the support and maintenance of said wards. No appeal was taken from this order. The guardians then renewed their respective applications for welfare benefits. The Department of Public Welfare considered the order of the county court to be an arbitrary exercise of jurisdiction, and chose to ignore it. In doing so, it held that the funds were a resource which must be considered in determining eligibility for public assistance for the wards.\\nThe primary purpose of allowing recovery for a wrongful death is to compensate the survivors for their pecuniary loss; and to compensate them for the care, maintenance, and support that they could reasonably have expected to receive had the decedent lived. \\u00a7 30-810, R. S. Supp., 1972. The present use of the funds, however, is not the issue before us. Regardless of how arbitrary the order of the county judge may be, it is binding on all parties affected until it is judicially reversed or modified. This action is not a proper proceeding to accomplish that purpose. It is not within the power of the Department of Public Welfare to second-guess a judicial officer or to ignore his order. Until the order of the county judge, arbitrary or otherwise, is reversed or modified, the money held in trust is unavailable to the wards. It is the present availability of the funds which is determinative herein. Until the guardians take steps to acquire possession by a further application to the county court, and an appeal if the order is adverse to them, the funds are not available to them.\\nThe AFDC program is designed to provide financial assistance to needy dependent children and the parents who live with and care for them. It is financed in large measure by the federal government on a matching funds basis, and participating states must submit AFDC plans in conformity with the act and the regulations promulgated thereunder by the Dep\\u00e1rtment of Health, Education, and Welfare. The program is, however, administered by the states, which are given broad discretion in determining both the standard of need and the level of benefits. Shea v. Vialpando (1974), 416 U. S. 251, 94 S. Ct. 1746, 40 L. Ed. 2d 120. In that case, Mr. Justice Powell said: \\\"The 'income and resources' attributable to an applicant, defined in 45 CFR S. 233.20 (a) (6) (iii-viii), consist generally of 'only such net income as is actually available for current use on a regular basis . . . and only currently available resources.' \\\"\\nThe action of the Department of Public Welfare was arbitrary and capricious in determining that the fund was available when it knew that the requests of the guardians for said funds had been denied. An administrative agency may not act unreasonably or capriciously. Its judgment must be based on a factual foundation, and the agency or officer must give due consideration to all the essential elements involved. If material elements have not been given due consideration, the decision is void. Block v. Lincoln Tel. & Tel. Co. (1960), 170 Neb. 531, 103 N. W. 2d 312.\\nFrom a cursory examination of relevant laws and regulations, it does not appear that it was the intention of Congress or the Legislature to exclude proc\\u00e9eds of a wrongful death settlement from \\\"any other income or resources of the child\\\" in determining need for public aid. That, however, is not the issue.\\nWe do not question the right of the Department of Public.Welfare, if its practice permits, to enter a conditional order to require the guardians to exhaust their remedies so long as it does not deny assistance to the wards pending such determination. This was the procedure followed in Fitzpatrick v. Illinois Department of Public Aid (1972), 52 Ill. 2d 218, 287 N. E. 2d 666. Until, however, the funds are actually available to the respective guardians, they are not current resources which may be considered in determining eligibility for aid for dependent children.\\nIn view of the result we have reached, there is no need to consider the other questions raised by the guardians. The judgment is reversed and the cause remanded for proceedings consistent with this opinion.\\nReversed and remanded.\"}"
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+"{\"id\": \"5315490\", \"name\": \"Hiram C. Wells, appellee, v. W. W. Frazier et al., Impleaded with Marion S. Allen et al., appellants\", \"name_abbreviation\": \"Wells v. Frazier\", \"decision_date\": \"1902-04-02\", \"docket_number\": \"No. 11,571\", \"first_page\": \"370\", \"last_page\": 372, \"citations\": \"64 Neb. 370\", \"volume\": \"64\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:57:50.580096+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hiram C. Wells, appellee, v. W. W. Frazier et al., Impleaded with Marion S. Allen et al., appellants.\", \"head_matter\": \"Hiram C. Wells, appellee, v. W. W. Frazier et al., Impleaded with Marion S. Allen et al., appellants.\\nFiled April 2, 1902.\\nNo. 11,571.\\nL Judicial Sale: Appraisal. An objection to an appraisal of real estate for the purpose of a judicial sale, to be available, must be made and fthed before a sale thereof is had.\\n3. -: -: Authority of Deputy Sheriff. -A deputy sheriff may act for and in the place of the sheriff in making- an appraisal of real estate for the purpose of a judicial sale in the execution of a decree of court.\\n3.-: -: Owners of Equity of Redemption: Designation of \\u201cet al.\\u201d An appraisal of the interests, in land about to be sold at judicial sale, of the parties to an action, against whom the decree operates, is not invalidated because the names of the owners of the equity of redemption are not stated other than by the designation \\u201cet al.\\u201d after the name of the principal defendant in the action.\\nAppeal from the district court for Custer county. Heard below before Sullivan, J.\\nAffirmed.\\nJ. R. Deem, for appellant:\\nTalbot & Allen and Alpha Morgem, contra.\", \"word_count\": \"707\", \"char_count\": \"4065\", \"text\": \"Holcomb, J.\\nWe will consider only the objections to confirmation of sale of real estate to which our attention is called in the brief of counsel for appellants.\\nThe objection that the appraisal of the land was for an inadequate sum comes too late, since it was not made until after sale, and just before an order of confirmation was asked for.\\nAs to the second objection, we have held several times Nat a deputy sheriff may act for the sheriff in making an appraisement of land for the purpose of a judicial sale in the execution of a decree of foreclosure of a real estate mortgage. Richardson v. Hahn, 63 Nebr., 294, and authorities there cited.\\nIt is next urged that because in the appraisal and advertisement of sale the parties are designated as Hiram C. Wells v. William W. Frazier et al., and the appraisal was of the interest of William W. Frazier et al., without naming the defendants who appeal, and who were the owners of the equity of redemption, this renders the proceedings so irregular as to amount to prejudicial error. The parties were designated with sufficient certainty to show the nature of the proceedings and the action in which the decree of foreclosure and order of sale were entered. The appraisement found the gross value of the lands from which was deducted prior incumbrances, the net appraised value being found as the value of the interest of all the defendants in the property. This certainly would include the owners of the equity of redemption, who were made parties to the action. We know of no legal ground of complaint because they were not specially singled out from the numerous defendants, and found to have an interest in the land as owners. It is obvious that they were in no way prejudiced by the appraisers not undertaking to ascertain and separate the interests of the different defendants against whom the decree operated. It is not required of the appraisers that they should ascertain and determine what the respective interests of the different defendants were in the land being appraised for sale. By finding the gross value of the land, and deducting therefrom the prior incumbrances, the value remaining represented the value of the interest, for the purpose of the sale, of either or all of those against whom the decree and its execution operated. Toscan v. Devries, 57 Nebr., 276. The object of the statute requiring the appraisal before sale is to fix the value of the real estate, below two-thirds of which the land can not be sold. It is for the protection of those whose interests therein are to be divested by the sale, and the object of the statute is accomplished by finding the net value of the land. We can conceive of no valid reason for holding that the objecting defendants were prejudiced because they were not named personally and specifically in the appraisal, and consequently the failure to so designate them is no sufficient ground for denying confirmation of sale.\\nThe order appealed from is accordingly\\nAffirmed.\"}"
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+"{\"id\": \"5324067\", \"name\": \"Walter A. Wood Harvester Company v. John Dobry\", \"name_abbreviation\": \"Walter A. Wood Harvester Co. v. Dobry\", \"decision_date\": \"1900-01-24\", \"docket_number\": \"No. 9,110\", \"first_page\": \"590\", \"last_page\": 593, \"citations\": \"59 Neb. 590\", \"volume\": \"59\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:19:38.544388+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walter A. Wood Harvester Company v. John Dobry.\", \"head_matter\": \"Walter A. Wood Harvester Company v. John Dobry.\\nFiled January 24, 1900.\\nNo. 9,110.\\n1. Bailment: Conversion. A bailee who fails, or refuses, to surrender trust property to the owner in accordance with the express or implied terms of the bailment is liable in an action for conversion, unless he can show a prior lawful seizure of the property under judicial process against the owner, or some other legal and valid excuse.\\n2. Summons: Constructive Service: Judgment. A summons served constructively on a resident of the state, who has neither ab scondecl nor concealed himself with intent to defraud creditors, or to avoid the service of process, does not confer jurisdiction over the person of the defendant, nor justify the rendition of a judgment condemning- his property.\\nError from the district court of Howard county. Tried below before Thompson, J.\\nAffirmed.\\nJohn W. Templin and Frank J. Taylor, for plaintiff in error.\", \"word_count\": \"812\", \"char_count\": \"4739\", \"text\": \"Sullivan, J.\\nJohn Dobry sued the Walter A. Wood Harvester Company for the conversion of a quantity of binding twine, and recovered judgment against it in the district court of Howard county for the sum of $449.63. The property in controversy belonged to the plaintiff, and was originally turned over by him to the Walter A. Wood Mowing & Reaping Machine Company, to be kept in store in the city of Omaha. This company placed the twine in the immediate custody of one T. C. Northwall, and after-wards withdrew from business in Nebraska. Northwall brought an action against Dobry before a justice of the peace of Douglas county, and caused the twine to be seized under an order of attachment, and sold for the satisfaction of his claim. The theory of the defendant in this case is that it is not liable, because (1) it never had the actual possession of the property; and (2) Dobry's title and right of possession were extinguished by the attachment proceeding. There was ample evidence before the jury to warrant a finding that the defendant had succeeded to the trade and business of the Walter A. Wood Mowing & Reaping Machine Company in this state, and that it had, as such successor, exercised dominion and authority over plaintiff's property. The defendant's manager, Mr. J. D. Van Bur\\u00e9n, testified that his company had a claim against the twine for freight and storage. He also said that while the property was not directly in the possession of the defendant, it was under its control. It further appears that when its claim was paid, it gave an order for the surrender of the property to Mr. Dobry. Northwall refused to comply with the order, but grounded his refusal on the fact that he had caused the property to be taken under the writ of attachment. He did not deny having held it under the authority of the defendant.\\nThe defendant being in the possession of plaintiff's property, it was its obvious duty to surrender it on demand and payment of just charges, unless there had been a prior lawful seizure of it under judicial process issued against the owner. See 3 Am. & Eng. Ency. Law [2d ed.], 756. We are entirely satisfied that there was no such seizure. In the first place, it is clear from- the evidence that the jury were justified in finding that there was no effective levy of the order of attachment; and, in the second place, it appears, beyond controversy, that the attempted levy was the result of Northwall's wrongful conduct, and that it neither disturbed his actual possession nor altered, in any manner, plaintiff's right in the property. Dobry did not reside in Douglas county, nor was he served with summons therein. He was not a non-resident of the state; neither had he absconded nor had he concealed himself with the intent of defrauding his creditors, or for the purpose of avoiding the service of a summons. There was, therefore, no authority to make service upon him by publication; and the attempt of the justice to acquire jurisdiction by proceeding under section 932 of the Code of Civil - Procedure was manifestly abortive. We are not aware of any authority for constructive service of summons in actions on contract, except that contained in section 77 of the Code of Civil Procedure. See Maxwell, Practice in Justices' Courts [4th ed.], p. 202. The commencement of the action in Douglas county was wrongful. See Code of Civil Procedure, sec. 60. Every step taken in the prosecution of the case was wrongful. The judgment in favor of North-wall was void, and the purchase by him of the twine, when sold under the special execution, was without legal force or effect. The defendant had at no time a valid excuse for refusing to account for the property of the plaintiff which it had received from its predecessor and held in trust. The judgment is right, and is\\nAffirmed.\"}"
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+"{\"id\": \"5371328\", \"name\": \"William C. May, appellant, v. City of Gothenburg et al., appellees\", \"name_abbreviation\": \"May v. City of Gothenburg\", \"decision_date\": \"1911-03-16\", \"docket_number\": \"No. 16,351\", \"first_page\": \"772\", \"last_page\": 775, \"citations\": \"88 Neb. 772\", \"volume\": \"88\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:41:19.305266+00:00\", \"provenance\": \"CAP\", \"judges\": \"Letton, J., not sitting.\", \"parties\": \"William C. May, appellant, v. City of Gothenburg et al., appellees.\", \"head_matter\": \"William C. May, appellant, v. City of Gothenburg et al., appellees.\\nFiled March 16, 1911.\\nNo. 16,351.\\n1. Municipal Corporations: Exclusive Franchises. The legislature may by general law authorize cities and villages to grant exclusive franchises to public service corporations.\\n2. -: -. Cities and villages cannot grant exclusive franchises to public service corporations unless authorized by the legislature so to do.\\n3. -: -. The legislature of this state has not authorized cities and villages of less than 5,000 inhabitants to grant exclusive franchises to telephone companies to erect and maintain poles and wires and a general telephone system upon the streets and alleys and within the corporate limits of such cities and villages.\\nAppeal from the district court for Dawson county: Bruno O. Hostetler, Judge,\\nAffirmed.\\nE. A. Ooolc, for appellant.\\nH. M. Sinclair and Warrmgton & Stewart, contra.\", \"word_count\": \"1023\", \"char_count\": \"6075\", \"text\": \"Sedgwick, J.\\nThe plaintiff asked for an injunction in the district court for Dawson county enjoining the mayor of'the city of Gothenburg from signing an order granting telephone rights to the defendant Farmers Mutual Telephone Company, and enjoining the clerk of the city from causing the ordinance to be published, and enjoining the Farmers Mutual Telephone Company of Gothenburg from setting poles or stringing wires or otherwise establishing a telephone line or lines in the city, and enjoining the city of Gothenburg from passing any ordinance authorizing any person, persons, firm or corporation to erect or maintain a tele phone system in the city for local telephone purposes. The defendants filed a general demurrer to the petition, which ivas sustained by the court, and the action dismissed, The plaintiff has appealed.\\nThe petition alleges that in February, 1907, the village of Gothenburg by ordinance granted to the plaintiff the right to maintain and operate a telephone system in the said A\\u00dallage; that the village, by reason of increase of inhabitants, has since become a city. The ordinance granting this right is set out in the petition, and it purports to grant \\\"the exclusive use of the streets and alleys of the village of Gothenburg*\\\" for a specified term to the plaintiff for the purpose of erecting poles and placing wires thereon for local telephone purposes. The ordinance contains many proAosions supposed to be beneficial to the city and the inhabitants of the city and to the plaintiff. It is not necessary to enumerate and discuss these provisions. The petition then shows that the city is about to enact an ordinance authorizing the defendant Farmers Mutual Telephone Company to establish a local telephone business in the city, and that the defendant, the telephone company, is about to proceed to establish such system. The contention is that this is in violation of the contract between the plaintiff and the city, in that it interferes with the exclusive right of the plaintiff to establish and maintain a-telephone system in the city during the existence of its contract. It is argued at large and very' convincingly that a city, when acting in its corporate capacity and for its own benefits as a city, is bound by its contracts as an individual is bound, and that the proposed action of the city is a distinct violation of its contract with the plaintiff.\\nThat the city is bound by its contract, as above stated, is not doubted. This, however, is always with a qualification that its contracts are within its power, and that any attempt on its part to contract beyond the power delegated to it is ineffectual, and the city cannot be be bound by such supposed contract. It will be seen that the whole question, then, presented in this case is as to the power of the city of Gothenburg to grant an exclusive right to establish and maintain a telephone system within the city. It is usually held that the legislature has such power. It is also held that the legislature may grant such exclusive privilege itself directly (in this state, of course, it must be by general law), or it may delegate such power to the city, and, when such power is delegated by the legislature to the city, its contract creating such exclusive privilege is binding upon it as are its other valid contracts. It is conceded that the legislature has expressly authorized cities of this class to grant exclusive franchises for certain purposes, but not for the purpose contemplated in this action. It was contended by the defendants upon the oral argument that, in the absence of an express grant by the legislature, such power does not exist, and many authorities are cited in the brief sustaining this contention. The plaintiff was given leave to cite further authorities upon his contention that the city may exercise such power without an express grant, and has cited as supporting his proposition: New Orleans Water Works Co. v. Rivers, 115 U. S. 674; City R. Co. v. Citizens Street R. Co., 166 U. S. 557; St. Tammany Water Works Co. v. New Orleans Water Works Co., 120 U. S. 64; Walla Walla City v. Walla Walla Water Co., 172 U. S. 1; Illinois Trust & Savings Bank v. City of Arkansas City, 22 C. C. A. 171. We do not find that any of these cases support the proposition, and some of them expressly hold to the contrary. The plaintiff makes a strong argument in his brief, and cites authorities supporting it, in favor of the policy of granting exclusive franchises to public service corporations in small towns and cities under careful regulation and control by the public authorities, but this question of policy is wholly for the legislature, and not for the courts. The legislature not having given cities of this class the power to grant exclusive franchises to telephone eompanies, the contract of the city in this regard is so far void, as beyond the power of the city. That being true, the power of the city to grant franchises to other companies cannot be doubted. The wisdom and policy of so doing are for the determination of the city council.\\nIt follows that the judgment of the district court is right, and is\\nAffirmed.\\nLetton, J., not sitting.\"}"
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--- /dev/null
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+"{\"id\": \"5400856\", \"name\": \"Denise Marie Larson, appellee, v. Richard James Larson, appellant\", \"name_abbreviation\": \"Larson v. Larson\", \"decision_date\": \"1987-12-18\", \"docket_number\": \"No. 86-035\", \"first_page\": \"181\", \"last_page\": 182, \"citations\": \"227 Neb. 181\", \"volume\": \"227\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:14:30.668734+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Bosi.augh, White, Caporale, Shanahan, and Grant, J Jand Colwell, D. J., Retired.\", \"parties\": \"Denise Marie Larson, appellee, v. Richard James Larson, appellant.\", \"head_matter\": \"Denise Marie Larson, appellee, v. Richard James Larson, appellant.\\n416 N.W.2d 574\\nPiled December 18, 1987.\\nNo. 86-035.\\nAnthony S. Troia of Troia Law Offices, P.C., for appellant.\\nPeter C. Bataillon ofSodoro, Daly&Sodoro, for appellee.\\nHastings, C.J., Bosi.augh, White, Caporale, Shanahan, and Grant, J Jand Colwell, D. J., Retired.\", \"word_count\": \"112\", \"char_count\": \"735\", \"text\": \"PerCuriam.\\nThis is a dissolution action in which the respondent-appellant husband, Richard James Larson, claims the trial court's division of the marital assets was unreasonable. We have reviewed the trial court's judgment de novo on the record and determined the trial court did not abuse its discretion in the division of those assets. Accordingly, the decree of the trial courtis affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5402963\", \"name\": \"Shirley A. Justice, appellant, v. Gregory H. Hand, appellee\", \"name_abbreviation\": \"Justice v. Hand\", \"decision_date\": \"1988-03-18\", \"docket_number\": \"No. 87-274\", \"first_page\": \"856\", \"last_page\": 857, \"citations\": \"227 Neb. 856\", \"volume\": \"227\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-11T01:14:30.668734+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., Boslaugh, White, Caporale, Shanahan, and Grant, J J., and Colwell, D. J., Retired.\", \"parties\": \"Shirley A. Justice, appellant, v. Gregory H. Hand, appellee.\", \"head_matter\": \"Shirley A. Justice, appellant, v. Gregory H. Hand, appellee.\\n420 N.W.2d 704\\nFiled March 18, 1988.\\nNo. 87-274.\\nShirley A. Justice, pro se.\\nWilliam J. Elder of McCormack, Cooney, Mooney & Hillman, and R. Joseph Henatsch of Katskee & Henatsch, for appellee.\\nHastings, C.J., Boslaugh, White, Caporale, Shanahan, and Grant, J J., and Colwell, D. J., Retired.\", \"word_count\": \"322\", \"char_count\": \"1964\", \"text\": \"Per Curiam.\\nShirley A. Justice appeals from the judgment for Gregory H. Hand in an automobile negligence action. In the county court, the parties presented evidence supporting their respective contentions. The trial court dismissed Justice's petition and found for Hand on his counterclaim for $1,492.06. On appeal, the district court affirmed the county court's judgment.\\nIn a bench trial of a law action, the court, as the \\\"trier of fact,\\\" is the sole judge of the credibility of witnesses and the weight to be given their testimony.... \\\"In reviewing a judgment awarded in a bench trial, the Supreme Court does not reweigh evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. [Citations omitted.]\\\"\\nLynn v. Metropolitan Utilities Dist., 225 Neb. 121, 125, 403 N.W.2d 335, 338-39 (1987) (quoting from Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986)).\\nOn appeal of a county court's judgment rendered in a bench trial of a law action, the district court reviews the \\\"case for error appearing on the record made in the county court.\\\" Neb. Rev. Stat. \\u00a7 24-541.06 (Reissue 1985). A county court's factual findings in a bench trial of a law action have the effect of a verdict and will not be set aside unless such findings are clearly erroneous.\\nHolden v. Urban, 224 Neb. 472, 474, 398 N.W.2d 699, 701 (1987).\\nThere is evidence to support the trial court's findings, which are not clearly erroneous.\\nAffirmed.\"}"
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+"{\"id\": \"5417276\", \"name\": \"Lincoln City Employees Union, National Association of Government Employees, appellee, v. City of Lincoln, a municipal corporation, et al., appellants\", \"name_abbreviation\": \"Lincoln City Employees Union v. City of Lincoln\", \"decision_date\": \"1982-03-12\", \"docket_number\": \"No. 43615\", \"first_page\": \"751\", \"last_page\": 759, \"citations\": \"210 Neb. 751\", \"volume\": \"210\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:50:10.880864+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Boslaugh, McCown, Clinton, Brodkey, and Hastings, JJ.\", \"parties\": \"Lincoln City Employees Union, National Association of Government Employees, appellee, v. City of Lincoln, a municipal corporation, et al., appellants.\", \"head_matter\": \"Lincoln City Employees Union, National Association of Government Employees, appellee, v. City of Lincoln, a municipal corporation, et al., appellants.\\n317 N.W.2d 63\\nFiled March 12, 1982.\\nNo. 43615.\\nDana W. Roper, Assistant City Attorney, and William A. Harding of Nelson & Harding for appellants.\\nJ. Murry Shaeffer for appellee.\\nHeard before Boslaugh, McCown, Clinton, Brodkey, and Hastings, JJ.\", \"word_count\": \"2329\", \"char_count\": \"14176\", \"text\": \"Per Curiam.\\nThe appellee, Lincoln City Employees Union, National Association of Government Employees (hereafter NAGE), petitioned the Nebraska Commission of Industrial Relations (hereafter CIR) to conduct an election and to certify NAGE as the exclusive bargaining agent of certain employees of the City of Lincoln classified as \\\"labor, labor supervision, and trades.\\\"\\nThe appellant City of Lincoln, Nebraska (hereafter City), interposed objections, more specifically (1) that a contract already existed between the City and the employees sought to be represented, and the contract constituted a bar to an election, and (2) that the proposed bargaining unit would consist of civilian employees and police officers since the existing police union was a local of International Brotherhood of Police Officers (hereafter IBPO), a division of NAGE. A few background facts are in order.\\nPrior to the time the petition was filed, the City's employees were represented by the American Federation of State, County, and Municipal Employees (hereafter AFSCME), IBPO, Amalgamated Transportation Union, and the International Association of Firefighters. In addition to these unions, the City also voluntarily recognized Lincoln City Employees Association (hereafter LCEA) as a labor organization representing employees not officially represented by the unions previously mentioned.\\nLCEA employees negotiated wages, hours, and fringe benefits with the City and also enjoyed checkoff privileges, bulletin board privileges, and the right to process grievances. In June 1978 the City and LCEA reached a 2-year agreement which was to expire on August 31, 1980. The terms of the agreement covered wages, health insurance, retirement, and sick leave.\\nSubsequent to this agreement AFSCME, which served as the exclusive bargaining agent of the employees described in the NAGE petition, was decertified in CIR case No. 261 on November 20,1978. With the decertification of AFSCME, LCEA sent the City personnel director a letter asking the City if LCEA could be recognized as the bargaining agent for the former AFSCME employees. The City notified LCEA that the former AFSCME employees would be eligible for membership in LCEA. The City agreed to \\\"meet and confer\\\" with LCEA on behalf of all employees not represented by one of the other officially recognized bargaining agents, as long as the arrangement was acceptable to the affected employees. The conditions of employment extended to LCEA members were also extended to former AFSCME members.\\nNAGE filed its petition for election on July 31, 1979. After determining that LCEA was a necessary party to the action, a hearing was held on September 27, 1979, to determine if a contract bar existed. On October 30, 1979, the CIR ruled that: \\\"1. A contract bar does not exist as to those employees previously represented by AFSCME and decertified on November 20, 1978, by CIR Case No. 261. The evidence adduced by the petitioner does not support a finding that these employees were bound by the contract in question or that the City Employees Association actually had any authority to represent them. 2. There does exist a contract bar as to any employees sought to be represented by the petitioner who were represented by the City Employees Association and not represented by AFSCME on September 1, 1978.\\\"\\nThereafter, the City filed a motion to dismiss based on the answers to certain interrogatories the City had served on NAGE. The City's basic contention was that the Lincoln Police Union was a local of IBPO which, in turn, was a division of NAGE. The City argued that the direct or indirect affiliation of the police union with NAGE prevents NAGE from representing former AFSCME members since this might result in guard and nonguard employees being represented by the same union.\\nThe CIR held a hearing on November 20, 1979, and entered its order on November 21,1979, overruling the City's motion.\\nBy joint stipulation of the parties, a representation election was held on February 22, 1980, which resulted in the election of NAGE as the exclusive bargaining representative. The City filed an objection to the election, stating that employees other than members of the bargaining unit acted as observers for NAGE. The CIR overruled the City's motion. Thereafter, the City filed a motion for new trial, which was overruled. The City then filed a notice of appeal to this court. After the bill of exceptions and transcript were docketed in this court, the City filed another motion for new trial based on newly discovered evidence. The CIR found that it was without jurisdiction and the City filed a supplemental praecipe to have the motion filed with this court.\\nThe standard of review by the Supreme Court of orders and decisions of the CIR is generally restricted to considering whether the CIR's order is supported by substantial evidence, whether the CIR acted within the scope of its statutory authority, and whether its action was arbitrary, capricious, or unreasonable. AFSCME Local 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981).\\nThere is substantial evidence in the record that a contract bar did not exist. The following testimony of Walter J. Mitchell, personnel director for the City, strongly supported the CIR decision. The following questions and answers were elicited at the September 27, 1979, hearing: \\\"Q In your agreements which you reached with formal labor unions, that agreement flows to only certain employees of the City of Lincoln desig nated in that contract. A That's right. Q When this agreement was reached with City Employees Association in June of 1978, to whom did those benefits accruing under that agreement flow? A Everybody who wasn't represented by one of the formal agreements that you're talking about, other than the unclassified employees. Q Those benefits did not flow, at that time, to members of the AFSCME bargaining unit? A No, because \\u2014 That's right. The answer is no. Q At the time that these ordinances were passed which were introduced in September or October of 1978, the benefits agreed to with CEA also were not ratified as benefits for the AFSCME employees? A Not at that time. Q Since that time, since the ordinances were passed, there have been no negotiations between CEA and the City of Lincoln for the benefit of the former AFSCME bargaining group employees. A That's right.\\\"\\nIt is not disputed that at the time LCEA was negotiating the June 1978 contract it was not representing any of the AFSCME members. An agreement was reached and the contract was ratified before AFSCME was decertified. At the time the contract was negotiated, it was never the intention of LCEA or the City that AFSCME members would be covered by the contract. Under these facts and circumstances, we cannot say that a contract bar exists. Therefore, the CIR order of October 30, 1979, is correct.\\nThe City contends that the new Lincoln City Employees Union and the Lincoln Police Union are directly or indirectly affiliated with each other. The City contends that this affiliation violates well-established Nebraska law that bargaining units may not include both guard and nonguard employees, nor may unions admitting guards into membership also represent for purposes of collective bargaining nonguard employees, citing University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).\\nThe City alleges that NAGE exercised pervasive control of its local union. However, the City offers no evidence that the Lincoln Police Union is being controlled by NAGE. In fact, the record contains evidence which conflicts with this contention. Dennis A. Duck-worth, president of the Lincoln Police Union, gave the following testimony: \\\"Q In conjunction with your job as a police officer, do you hold another position associated with that job? A Yes, I do. Q What is that? AI am president of the union for the police officers. Q Have you held other offices or performed other functions for the Lincoln Police Union during your membership in the union? A Yes, I have. Q What were those? AI was on the negotiating team that negotiated the contract that we are now operating under with the City. Q Would you explain to the Commission how the initial requests of the union were prepared, and any help that you might have had in preparing the request for contract negotiations? A The negotiations, what we want in the contract is just what each of the officers might come up with. They are presented to the negotiating team by the officers. We go over them then, and the negotiating team presents these offers to the City. Q The Lincoln Police Union is associated with the International Brotherhood of Police Officers, is it not? A Yes, it is. Q And it is a local of the International Brotherhood of Police Officers? A Yes, it is. Q The International Brotherhood of Police Officers is a division of an organization known as the National Association of Government Employees? A That's correct. Q During the process of negotiations and preparations for negotiations by the Lincoln Police Union, were the terms or conditions, or were suggestions made, by International Brotherhood of Police Officers, as to what had or should be in your contract? A No, it wasn't. Q Did the terms to be negotiated in the contract deal with anything other than the local situation within the Lincoln Police Department? A No. It was strictly with the local. Q You are aware that the National Association of Government Employees are attempting to represent a group of civilian employees of the City of Lincoln, are you not? A Yes, I am. Q Have you, in any way, helped with that organization? A No, I haven't. Q Have you talked with any civilian employees of the City of Lincoln about becoming members of the National Association of Government Employees? A No, I have not. Q According to the bylaws of the Lincoln Police Union and the International Brotherhood of Police Officers, could a civilian employee of the City of Lincoln become a member of either the Lincoln Police Union or the International Brotherhood of Police Officers? A No, they could not. Q Who specifically does the Lincoln Police Union, as a local of the International Brotherhood of Police Officers, represent in negotiations? A Police officers only, of the rank of Police Officer, Sergeant, Detective and Lieutenant. Q Are any civilians represented by the union? A No, they are not. Q Was the Lincoln Police Union, as Local 544 of the International Brotherhood of Police Officers, able to secure a contract with the City of Lincoln? A Yes, they were. Q Is that contract presently in effect? A Yes, it is. Q When does that expire? A It expires August 31, 1980. Q Does the Lincoln Police Union, Local 544 of the International Brotherhood of Police Officers, or is it attempting to, represent anybody other than police officers at this time? A No, it is not. Q Has the Lincoln Police Union actively engaged or passed any resolutions to help in the organization of the civilian City employees of the City of Lincoln? A No, we have not.\\\"\\nThis testimony indicates the separateness of the two local unions. The argument by the City that the NAGE constitution would obligate the Lincoln Police Union to honor a picket line by the Lincoln City Employees Union is not convincing. Neb. Rev. Stat. \\u00a7 48-821 (Reissue 1978) specifically prohibits government employees from striking.\\nIn light of this, absent a sufficient showing in the record of the dependence upon one another or the lack of freedom and independence in formulating their own policies and deciding their own course of action, this court will not find a direct or indirect affiliation be tween the two unions. The mere fact that each local union can be traced back to a common international union will not be enough to show that the locals are affiliated with each other. There must be a positive showing that the national has authority and power to exercise control over both locals and that it is actually exercising that control. Here, there is evidence that the locals are controlling their own activities. The international union was used only in the formative stages of the locals. Also, no civilian employees are allowed to become members of either IBPO or the Lincoln Police Union. Although not controlling on us, we find support for our position in Bally's Park Place, [1980-81] 5 Lab. Rel. Rep. (CCH) \\u00b6 18,314 at 29, 627-28, 107 L.R.R.M. 1580,1581, wherein it was stated: \\\"The Board has consistently ruled that a guard union is 'affiliated indirectly' with a nonguard union within the meaning of Section 9(b)(3) of the Act, where 'the extent and duration of [the guard union's] dependence upon [the nonguard union],' or vice versa, 'indicates a lack of freedom and independence in formulating its own policies and deciding its own course of action.' Thus, the Board has permitted substantial latitude when a guard union is assisted by a nonguard union merely during the former's formative stages. However, where the assistance rendered continues beyond the formative stages, the Board has found an indirect affiliation between guard and nonguard organizations.\\\"\\nThe record does not reflect sufficient evidence that NAGE is controlling either local or that the locals were not acting independently. This is not to say that the Lincoln City Employees Union cannot be decertified in the future if it is shown later that NAGE is actually controlling it or that the Lincoln City Employees Union and the Lincoln Police Union are not acting independently. The evidence supports the decision of the CIR and it is therefore affirmed. We find no merit in the other assignments and therefore we do not discuss them.\\nAffirmed.\\nKrivosha, C.J., disqualified.\\nWhite, J., participating on briefs.\"}"
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+"{\"id\": \"5442139\", \"name\": \"State of Nebraska, appellee, v. Richard D. Holtan, appellant\", \"name_abbreviation\": \"State v. Holtan\", \"decision_date\": \"1984-02-24\", \"docket_number\": \"No. 83-393\", \"first_page\": \"594\", \"last_page\": 606, \"citations\": \"216 Neb. 594\", \"volume\": \"216\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:35:42.984354+00:00\", \"provenance\": \"CAP\", \"judges\": \"Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.\", \"parties\": \"State of Nebraska, appellee, v. Richard D. Holtan, appellant.\", \"head_matter\": \"State of Nebraska, appellee, v. Richard D. Holtan, appellant.\\n344 N.W.2d 661\\nFiled February 24, 1984.\\nNo. 83-393.\\nJ. William Gallup, for appellant.\\nPaul L. Douglas, Attorney General, and J. Kirk Brown, for appellee.\\nKrivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.\", \"word_count\": \"3576\", \"char_count\": \"21342\", \"text\": \"Krivosha, C.J.\\nIn embarking upon our review of this case, we note at the outset that this appeal presents to the court the very narrow question of whether the action of the district judge in denying to the appellant, Richard D. Holtan, the right to withdraw his previously entered plea of nolo contendere constituted an abuse of discretion. We believe that the district court's action did not constitute an abuse of discretion, and we affirm the action of the district court in denying the request.\\nThis is the third appearance of this case before this court. In the first case, State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977) (Holtan I), we affirmed the judgment of the district court which found Holtan guilty of first degree murder in the perpetration of a robbery and of shooting with intent to kill, wound, or maim. Holtan had entered a plea of nolo contendere to both counts and was sentenced to death on the first count and to serve 15 to 45 years on the second count. The specific facts of the case are set out in detail in Holtan I and need not be repeated here.\\nIn the second case, State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980) (Holtan II), we affirmed the trial court's denial of a motion seeking post conviction relief under the provisions of the Post Conviction Act, Neb. Rev. Stat. \\u00a7 29-3001 et seq. (Reissue 1979). Holtan then filed an action in the U.S. District Court for the District of Nebraska, seeking a writ of habeas corpus. The U.S. District Court for the District of Nebraska, Urbom, Chief Judge, denied Holtan's request for federal habeas corpus in an unreported memorandum decision (CV 81-L-07, October 10, 1981). Holtan appealed that denial to the U.S. Court of Appeals for the Eighth Circuit. Because the court of appeals vacated the judgment of the U.S. District Court and remanded the matter for further proceedings, we are now presented with this appeal. See Holtan v. Parratt, 683 F.2d 1163 (8th Cir. 1982) (Holtan III).\\nIn his action to the U.S. District Court and the subsequent appeal to the court of appeals in Holtan III, Holtan alleged a number of errors. The single issue considered by the court of appeals was whether Holtan was denied effective assistance of counsel when his court-appointed attorney did not request permission of the district court for Douglas County, Nebraska, to withdraw his previously entered plea of nolo contendere. More specifically, however, the court of appeals stated that it could not determine with certainty whether the district court for Douglas County would have favorably entertained Holtan's motion to withdraw his previously entered plea, and for that reason vacated the judgment of the U.S. Dis trict Court so as to afford the district court for Douglas County an opportunity to consider an appropriate motion by Holtan to withdraw his plea of nolo contendere. That motion was subsequently made by Holtan, considered by the district court for Douglas County, and denied. It is from that denial that this appeal was taken.\\nThe right to withdraw a plea previously entered is not absolute, and in the absence of a clear abuse of discretion exercised by the trial judge, will not be disturbed on appeal. See State v. Miller, 202 Neb. 443, 275 N.W.2d 614 (1979). It would not be proper as a matter of right for a trial judge to permit the withdrawal of a plea of guilty or nolo contendere which was knowingly, intelligently, and voluntarily made unless such withdrawal is necessary to correct a manifest injustice. See, State v. Evans, 194 Neb. 559, 234 N.W.2d 199 (1975); State v. Johnson, 187 Neb. 26, 187 N.W.2d 99 (1971). The burden is on the defendant to establish the manifest injustice by clear and convincing evidence. See, State v. Krug, 187 Neb. 551, 192 N.W.2d 163 (1971); State v. Miller, supra.\\nWhat is \\\"manifest injustice\\\" has been determined previously by this court. In State v. Evans, supra, we adopted a portion of the ABA Standards Relating to Pleas of Guilty (Approved Draft 1968), including the definition of \\\"manifest injustice.\\\" In adopting that portion (\\u00a72.1) of the ABA Standards, we said in State v. Evans at 562, 234 N.W.2d at 201: \\\" ' (ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:\\n\\\" '(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;\\n\\\" '(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;\\n\\\" '(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or\\n\\\" '(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose those concessions as promised in the plea agreement. . . .' \\\" The record in this case is clear beyond any question that items (2), (3), and (4) do not exist. Therefore, only item (1), ineffective assistance of counsel, need be considered. We review that item in two aspects: before the entry of the plea and before the imposition of the sentence. We do this because it appears to us that if Holtan had effective assistance of counsel when initially entering his plea, all of the requirements of the ABA Standards defining \\\"manifest injustice\\\" would be met and Holtan's right to withdraw his plea would be a matter of discretion with the court instead of a matter of right in Holtan.\\nAn examination of the entire record, of our previous decisions, and of the decision by the court of appeals makes it clear beyond question that Holtan was not denied effective assistance of counsel prior to the time he entered his plea of nolo contendere. The federal District Court found, in connection with its resolution of this question, that Holtan's nolo contendere plea was not entered into as a result of any ineffective assistance of counsel, but, rather, because Holtan insisted on entering the plea as a result of a mistaken impression on his part that by entering the plea he could avoid confronting a certain prosecution witness and, thus, hopefully avoid the death penalty. There is no evidence that anyone told him anything that would lead him to that conclusion, but only that he mistakenly believed that to be so. And, indeed, the court of appeals observed in Holtan III at 1170 that \\\"when Holtan entered his plea, the trial court entered into an extensive colloquy with the defendant, covering forty pages of transcript, and did a commendable job both of informing Holtan of the consequences of the plea and of satisfying itself that Holtan understood these consequences.\\n\\\"This court nevertheless observes that although the plea was entered into under a mistaken impression on Holtan's part, and although the trial court did not uncover this mistake at the time the plea was entered, the mistake was not the result of ineffective assistance on the part of counsel, or of any misconduct on the part of the prosecution, and the trial court's investigation of the voluntariness of the plea was clearly adequate. In these circumstances, we are unable to state that Holtan was entitled to withdraw his plea as a matter of right.\\\"\\nWe wholly concur in the observation made by the court of appeals. On the basis of the record made in this case, we are able to say as a matter of law that there was no evidence of a manifest injustice as contemplated by our holding in State v. Evans, supra, and Holtan was not entitled to withdraw his previous plea of nolo contendere made knowingly, intelligently, and voluntarily.\\nTherefore, if he has any right to withdraw the plea it must be because of the second part of the ABA Standards adopted by us in State v. Evans at 563, 234 N.W.2d at 201. The second portion provides: \\\" '(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.' \\\"\\nTherefore, in order for us to reverse the action of the trial judge in the instant case, we must first find that there was some fair and just reason for permitting Holtan to withdraw his plea and that the trial court therefore abused its discretion. We do not be lieve the record will support that position. Notwithstanding the fact that Holtan was advised of the consequences of his plea and that by entering a plea of nolo contendere he was waiving all of his rights and subjecting himself to the possible penalty of death by execution, he nevertheless freely, knowingly, and intelligently entered that plea. He now maintains that had he known that a live witness could appear at the sentencing hearing he would not have entered such a plea. His argument, however, is without any sense. Holtan knew that his counsel had been unsuccessful in efforts to get any prior agreement about the sentence, and he further knew that by entering a plea of nolo contendere he was subjecting himself to the possibility of having the death sentence imposed. Moreover, and perhaps more importantly, had Holtan not entered his plea of nolo contendere he would have been required to confront the witness whom he sought to avoid. Therefore, whether he entered a plea of nolo contendere or did not enter a plea of nolo contendere would not have prevented the appearance of the witness Holtan sought to avoid. Holtan was no novice to the criminal courtroom, and he knew that the trial judge would make an investigation into the nature of the crime.\\nOne of Holtan's earlier claims of error was that his court-appointed counsel should have subpoenaed witnesses from the State of Washington who could have testified as to his good character. He knew witnesses could be called after a plea and before the imposition of a sentence. If he could call witnesses of good character, he had to understand that the State could call witnesses regarding bad character, including the witness he sought to avoid. See Holtan II.\\nFurther, he knew that because of the nature of the crime and the callous way in which the victim was killed, there was at least the possibility of the death penalty being imposed. To therefore suggest that refusing to permit Holtan to withdraw his plea of nolo contendere because he did not realize that a witness might appear at the sentencing hearing constitutes fair and just reason is to attempt to give a meaning to \\\"fair and just reason\\\" beyond any reason. Holtan has simply failed to establish any fair and just reason for withdrawing his plea, and the trial court was not in any manner guilty of an abuse of discretion in so holding.\\nThe court of appeals, in vacating the judgment entered by the U.S. District Court, concluded by saying: \\\"Consequently, we cannot conclude with certainty that Holtan would have been allowed to withdraw his plea if a request for such withdrawal had been timely made.\\\" Holtan III at 1170. At Holtan's request the world has been set back in time, and he has been permitted to make that request to the very same judge who accepted his plea in the first instance and to whom his subsequent request would have been made. Upon consideration of the record the trial judge has now determined that had the request been made to him then he would have denied it, as he now denied it. No evidence of an abuse of discretion under the circumstances can be found. Finding no abuse of discretion, we must conclude the action of the trial court was correct, and the judgment denying Holtan's request must be affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"574443\", \"name\": \"J. H. Teasdale Commission Company, appellant, v. Solomon C. Keckler, appellee\", \"name_abbreviation\": \"J. H. Teasdale Commission Co. v. Keckler\", \"decision_date\": \"1910-01-05\", \"docket_number\": \"No. 15,602\", \"first_page\": \"712\", \"last_page\": 714, \"citations\": \"85 Neb. 712\", \"volume\": \"85\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:24:49.666106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. H. Teasdale Commission Company, appellant, v. Solomon C. Keckler, appellee.\", \"head_matter\": \"J. H. Teasdale Commission Company, appellant, v. Solomon C. Keckler, appellee.\\nFiled January 5, 1910.\\nNo. 15,602.\\n1. Appeal: Conflicting Evidence. Where the testimony of witnesses adduced in the trial of a cause to a jury is conflicting, the verdict will not ordinarily he set aside, as the jurors are the sole judges of the weight of the evidence.\\n2. Sales: Instructions. The instructions given by the court to the trial jury examined, but not set out in the opinion, held to have been a fair submission of the issues and questions of law, and no prejudicial error is found.\\nRehearing of case reported in 84 Neb. 116.\\nFormer opinion vacated and judgment of district court affirmed.\", \"word_count\": \"967\", \"char_count\": \"5697\", \"text\": \"Reese, C. J.\\nThis case is resubmitted upon a rehearing. The original opinion is reported in 84 Neb. 116. The statement of the facts deemed by the commissioner to be essential to a proper understanding of the case is contained in the opinion, and is correct. But, upon a re-examination of the record, we are persuaded that, in a limited number of instances, the statement is hardly complete. On the trial the defendant testified that in the conversation had with Thatcher over the telephone on the 8d day of December, the day after the receipt of the card-bid, he stated to Thatcher that he wouid fill the bid provided he could obtain the necessary cars in which to ship the grain. Thatcher admitted the fact of the conversation, but claims, and testified, that the acceptance by defendant was unconditional. The evidence is clear, and the fact undisputed, that the Missouri Pacific railroad is the only one operating through Manley, where defendant had his grain, and his place of business; that the railroad company did not furnish a sufficient number of cars to meet the demands of shippers, and that that condition had existed for some time prior to the receipt of the card-bid and the conversation over the telephone wire. Defendant also testified that Thatcher replied that he would have to submit the matter of the conditional acceptance to plaintiff. If the testimony of defendant was the truth, and of that the jury were the sole judges, the contract was indefinite and made to depend upon the condition, and therefore, even had it not been void under the statute of frauds, there was no agreement to furnish any specific number of bushels. It is true the corn which defendant subsequently shipped took the contract out of the statute, yet, if the condition existed at all, it was carried throughout the whole transaction, and the number of bushels agreed upon were still subject to the condition. It appears that when Thatcher sent his telegram to plaintiff reporting the purchase he said nothing about any condition, but reported the purchase as unconditional. On the receipt' of the telegram from Thatcher, plaintiff mailed to defendant the confirmation of the purchase. It is to be noted that this letter contained terms which were not mentioned between Thatcher and defendant. Defendant did not respond to the letter by signing.the contract. He never at any time signed any memorandum or note by which he was obligated. He testified that at or about the time of the shipment of the corn furnished by him he wrote plaintiff a letter, in which he said, in substance, that the grain was furnished on the contract; tha\\u00a3 he had had trouble in obtaining cars; that he had other sales he could not fill, \\u2022 but, if he received the cars, he would fill plaintiff's order. Plaintiff denies having received the letter, but defendant testified that it was duly addressed, stamped and posted in the mail; that his return card was on the letter, and that it was never returned to him by the postal department of the government. This also presented a question for the consideration of the jury. Again, defendant testified that on the day he shipped the car-load of corn, by which it is claimed by plaintiff that he validated the contract, he called plaintiff's agent, Thatcher, by telephone and advised him of the shipment; that the confirmation which he had received of plaintiff did not conform to the agreement and that it should he corrected, and that Thatcher said he would write plaintiff and have the correction made. By a liberal construction of Thatcher's evidence, which Avas by deposition, we might probably be justified in saying that this part of defendant's testimony was denied and contradicted by him, and yet the question of the truth of defendant's testimony was for the consideration of the jury alone.\\nObjection is made to the instructions given by the court. We have carefully examined them, and are persuaded that there was no prejudicial error in giving those submitted to the jury, nor in'refusing those asked by plaintiff. It could subserve no good purpose to set them out here. Those given are believed to be correct statements of the law, and fairly coA^ered all the issues of the case.\\nAs we view the case, it rested upon the question of the veracity of the witnesses. That whole subject was for the jury. Their verdict in favor of defendant was a finding-in his favor upon the controlling questions in the case. If it were true that the original agreement was made to rest upon the condition named and no change was made therein, that the condition failed, that defendant gave plaintiff notice of his (defendant's) reliance upon the terms of the contract, the verdict was right. The jury being the triers of the facts, with sufficient evidence to support defendant's theory, their verdict ought to be considered as final, and the judgment should not have been reversed.\\nThe former decision is therefore vacated, and the judgment of the district court is affirmed.\\nJudgment accordingly.\"}"
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+"{\"id\": \"575736\", \"name\": \"James H. Berryman, appellant, v. G. F. Schalander et al., appellees\", \"name_abbreviation\": \"Berryman v. Schalander\", \"decision_date\": \"1909-10-22\", \"docket_number\": \"No. 15,768\", \"first_page\": \"281\", \"last_page\": 285, \"citations\": \"85 Neb. 281\", \"volume\": \"85\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T19:24:49.666106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James H. Berryman, appellant, v. G. F. Schalander et al., appellees.\", \"head_matter\": \"James H. Berryman, appellant, v. G. F. Schalander et al., appellees.\\nFiled October 22, 1909.\\nNo. 15,768.\\n1. County Commissioners: Powers. A county board or board of county commissioners are clothed not only with the powers expressly conferred upon them by statute, but they also possess such powers as are requisite to enable them to discharge the official duties devolved upon them by law.\\n2. -: -: Expenses of County Attorney. The matter of allowing a sum to the county attorney to cover actual necessary expenses incurred while investigating and prosecuting criminal cases and defending cases brought against the county is within the sound discretion of said board, and said board may, in the exercise of such discretion, lawfully allow and reimburse the county attorney for such expenditures.\\nAppeal from the district court for Knox county: An* .\\u25a0on A. Welch, Judge.\\nReversed.\\nJames H. Berryman, pro se.\\nP. S. Peterson and J. F. Green, contra.\", \"word_count\": \"1445\", \"char_count\": \"8489\", \"text\": \"Fawcett, J.\\nThe petition alleges substantially: That from January 5, 1905, to the present time plaintiff has been and now is county attorney of Knox county; that said county contains two cities of the second class, eight incorporated villages, and one village not incorporated, about 1,500 Indians and one Indian reservation; that said county is 42 miles long and about 26 wide; that three of the villages of said county are not accessible by rail, and the county seat is located 14 miles from the nearest railroad station; that during the term of plaintiff's incumbency he has prosecuted about 200 criminal cases, about two-thirds of which have been for offenses committed in parts of said county 15 to 30 miles from the county seat; that in order to try said cases in the neighborhood where the offens\\u00e9s were committed it was necessary for plaintiff to do a large amount of traveling and pay his traveling expenses in cash; that by pursuing such course he saved a large expenditure in sheriff's and witnesses' fees, for which the county would be liable in all such cases; that, if he had procured the arrest of such offenders and subpoenaed such witnesses and brought them to the county seat, the county would have been put to several times the expense incurred by plaintiff in the course pursued; that soon after entering upon his office as county attorney he submitted the above condition of things to the county board of said county, and advised said county board that from $1,000 to $2,000 per annum could be saved to the county by the course above indicated, and that since said time the system of the county's paying the traveling expenses of the county attorney in enforcing the criminal laws of the state has been followed in said county; that during the January meeting of the board each year, including 1907, the board made an estimate of the amount of money necessary to be raised by taxation for the then current year, as required by law, for all county purposes, and in each of said estimates provided for $1,200 per annum for salary and expenses of the county attorney, being $1,000 per annum for salary and $200 for traveling expenses and necessary disbursements connected with the county attorney's office; that at the July meeting of 1907 the board provided for a levy of that character for said purpose, and no objections thereto were made; that the plaintiff's claim for $21.84, covering expense of the class indicated for the months of April, May and July as per bill attached to plaintiff's petition was presented to the county board at said July meeting and was by said board duly allowed; that thereupon one Jerome Sharp, a resident and taxpayer of said county, appealed from the allowance of said claim to the district court, and filed in said court a transcript of said proceedings and a cost bond. Plaintiff further alleges that said claim has no connection with his salary as county attorney, but is to reimburse him for money expended in said sum in the discharge of his duties as county attorney in the enforcement of the criminal laws of the state, and prays for judgment in said sum of $21.84 and costs. To this petition the said Sharp filed a general demurrer. The district court sustained the demurrer and dismissed plaintiff's petition. Plaintiff appeals.\\nThe only question involved in this action is the power of the county board to allow plaintiff's claim. That the course pursued by the board and plaintiff has resulted in a great saving to the county is evident. That plaintiff was not bound to travel about the county in the manner indicated is clear. He could have filed his complaints at the county seat, and have placed warrants for the arrest of offenders and subpoenas for witnesses in the hands of the sheriff for execution, a course which would Lave been many times more expensive than that pursued. This system was not only of great advantage to the county in the saving of expense, and of great disadvantage to plaintiff in loss of time and labor and exposure of travel, but undoubtedly resulted in a more vigorous, prompt and efficient enforcement of the criminal laws of the state. That such action of the county board should be sustained unless clearly prohibited by express statute is too plain to require discussion. We know of no statute which prohibits it. A similar question was submitted to the attorney general's office during the incumbency of Honorable O. J. Smythe. The opinion by his deputy, Ed P. Smith, Esq., meets Avith our approval. The inquiry in that case was \\\"whether or not the county is liable for livery hire engaged by the county attorney while investigating and prosecuting criminal cases and defending cases brought against the county.\\\" In the opinion it is said: \\\"You are advised that it is the opinion of this office that the matter of allowing a sum to the county attorney to cover these expenses is wholly discretionary on the part of the county board. If the bill were filed with the county board for expenses necessarily incurred and actually paid, the county board might in its discretion allow and pay the same.\\\" Report of Attorney General, 1897-1898, p. 29.\\nSection 4440, Ann. St. 1907, in defining the powers of a county, gives the county power \\\"to make all contracts and to do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers.\\\" In construing this provision of the staff ute and determining the meaning of the word \\\"necessary\\\" therein, in Lancaster County v. Green, 54 Neb. 98, we held: \\\"(1) A board of county commissioners, in addition to the powers specially conferred by statute, has such other powers as are incidentally necessary to enable such board to carry into effect the powers granted. (2) The word 'necessary' considered, and, in respect to the implied powers of boards of county commissioners, held to mean no more than the exercise of such powers as are reasonably required by the exigencies of each case as it arises.\\\" In the opinion (p. 103) we said: \\\"The county commissioners, therefore, are clothed not only with the powers expressly conferred upon them by statute, but they also possess such powers as are requisite to enable them to discharge the official duties devolved upon them by law. It was not practicable in advance to enumerate all the powers which the board' of county commissioners might be permitted to exercise. To cover all contingencies very general language was employed, and from this consideration it necessarily results that the question whether or not the board has exceeded its powers must be determined upon the circumstances of each case as it arises.\\\"\\nWe do not think the question of the power of the county board to contract in advance for expenditures of the kind in controversy is involved here. The simple question involved is: Did the board have the power to pay the necessary expenses of the county attorney incurred while prosecuting the business of his office in a manner which was saving to the county large sums of money each year? To hold that it did not have such power would not only be a strained construction of the statute, but would, we think, be against public policy. The action of the board in allowing plaintiff's claim, the reasonableness of which is not questioned, was a lawful exercise of the discretionary powers of such board, regardless of any prior agreement in that behalf.\\nThe judgment of the district court is therefore reversed and the cause remanded for further proceedings in harmony herewith.\\nReversed.\"}"
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+"{\"id\": \"596738\", \"name\": \"Bankers Union of the World, appellant, v. Elam H. Landis, Guardian, appellee\", \"name_abbreviation\": \"Bankers Union of the World v. Landis\", \"decision_date\": \"1906-02-08\", \"docket_number\": \"No. 14,164\", \"first_page\": \"625\", \"last_page\": 630, \"citations\": \"75 Neb. 625\", \"volume\": \"75\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:51:44.848893+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bankers Union of the World, appellant, v. Elam H. Landis, Guardian, appellee.\", \"head_matter\": \"Bankers Union of the World, appellant, v. Elam H. Landis, Guardian, appellee.\\nFiled February 8, 1906.\\nNo. 14,164.\\n1. Appeal. Questions not raised by the pleadings in the court of original jurisdiction cannot be considered by the supreme court on. appeal.\\n2. New Trial: Equity. \\\"Where it would be proper for a court of law to grant a new trial, if the application had been made while that court had the power, it is equally proper for a court of equity to do so, if the application is made when the court of law has no means of granting such a trial; but a court of equity will only grant such relief in case of newly discovered evidence., surprise or fraud, or where a party is deprived of the .means of defense by circumstances beyond his control. Horn v. Queen, 4 Neb. 108.\\n3. -; Diligence. Where it is shown that the plaintiff has not used ordinary diligence in malting or attempting to make his defense in the former action, he will be denied a new trial.\\n4. -: Showing. In such a case the plaintiff must also plead and prove that he has a valid defense to the action in which the judgment complained of was rendered.\\n5. Evidence examined, and held sufficient to sustain the judgment of the district court\\nAppeal from the district court for Seward county: Benjamin P. Good, Judge.\\nAffirmed.\\nMatthew Goring, for appellant.\\nLandis & Schick and Norral Bros, contra.\", \"word_count\": \"2144\", \"char_count\": \"12200\", \"text\": \"Barnes, J.\\nThe appellant commenced this action in the district court for Seward county to set aside a certain judgment which had theretofore been rendered against it in that court in favor of Alice N. Landis, and to obtain a new trial in said action. The facts on which the appellant relied for relief are stated in the petition, in substance, as follows;\\nThat the plaintiff is a fraternal insurance company, and the defendant, Elam H. Landis, is the duly appointed guardian of Alice N. Landis, to whom the plaintiff issued its insurance policy; that on September 22, 1903, Alice N. Landis recovered from the plaintiff, in the county court of Seward county, a judgment for $500, and interest thereon, upon the said insurance policy, and that plaintiff appealed therefrom to the district court; that in January, 1904, and while said action was pending in the district court, the attorney general of the state commenced a suit in the supreme court enjoining the plaintiff from pursuing its business as an insurance company; that its business Avas placed in the hands of a receiver, and from the date of issuance of the injunction plaintiff Avas constantly under the. direction of the supreme court, and was prevented, by reason of said proceeding, from performing its duties as an insurance company, and Avas prevented from prosecuting any action at law which was then pending in behalf of or against the plaintiff; that such receiver was in charge of said company until June, 1904, at which time the injunction was dissolved; that while the injunction Avas in force, and prior to the entering of said judgment in-the district court plaintiff advised the clerk and the judge of said court that it was prevented from appearing or defending, or from pursuing its business, by reason of said injunction; and said clerk and judge knew that plaintiff was in charge of a receiver and under injunction, and by reason thereof plaintiff did not appear to defend said suit; that Avhile said injunction Avas in force said cause was tried, and a judgment was rendered against plaintiff in its absence; that after said cause was filed in the district court it was stipulated between the parties that said cause should be tried upon the petition and answer, together with the demurrer to the ansAver filed in the county court, and that without the knoAvledge of the plaintiff said judgment was rendered inadvertently, and at a time when plaintiff was unable, by reason of said injunction, to appear in said cause; that the plaintiff has a good and valid defense to said action, as appears from the answer filed in said cause, and that plaintiff had no knowledge of the entry of such judgment, or that said cause was tried, until after the adjournment of the last term of court, and is now willing and ready to pay any- and all costs in said cause.\\nThe defendant answered this petition, admitting the first paragraph thereof, and denying each and every other averment contained therein. Further answering, the defendant alleged, in substance, that one Alice N. Landis, by Elam H. Landis, her guardian, on February 24, 1904, recovered a judgment on a policy of insurance against the plaintiff in the district court for 8e>vard county, on which date said cause was regularly reached for trial, and the term of said court at which said judgment was rendered adjourned without day on March 31, 1904; that said judgment was in full force and effect, unappealed from, unreversed, unpaid and unsatisfied; that said policy of insurance was in full force and effect, and that from the time of the institution of the suit thereon in the county court on September 22, 1903, and during the pendency thereof, and since the rendition of said judgment, the plaintiff has accepted and received monthly payments on said policy, and receipted for the same. The reply was a general denial. The trial resulted in a general finding for the defendant, and the plaintiff appealed.\\nThe appellant's first contention is that the district court for Seward county was without jurisdiction to render the judgment complained of because, after adjudging appellant to be in default, the plaintiff's evidence was received, and judgment was rendered, without the intervention of a jury. As this objection relates to the manner of procedure only, it is sufficiently answered by saying that no such issue was tendered by the petition herein, and that question cannot be raised for the first time in this court.\\nIt is claimed by counsel for the appellee that this action cannot be maintained; that in order to obtain a new trial the appellant must proceed by motion in the same case, under the provisions of section 602 of the code. This claim is not well founded. It was held in Horn v. Queen, 4 Neb. 108.\\n\\\"Where it would be proper for a court of law to grant a new trial, if the application had been made while that court had the power, it is equally proper for a court of equity to do so, if the application be made when the court of law has no means of granting such trial.\\\"\\nThe rule thus established has been followed in an unbroken line of decisions from that day to the present time. It is equally well settled that a court of equity will only grant relief in case of newly discovered evidence, surprise or fraud, or where a party is deprived of the means of defense by circumstances beyond his control. ' If a party establishes any of these grounds, and in addition thereto pleads and proves that he has a valid defense to the former suit, he may have relief in the present form of action.\\nKeeping in view the foregoing rules, we come now to dispose of the main questions involved in this case. The appellant relies, as an excuse for its default and failure to defend when the case came on for trial in the district court, on the fact that an injunction had theretofore been obtained against it in this court, and its books, papers and records were in the hands of a receiver; that by the terms of the injunction it was restrained from transacting any business whatever. It is true that sometime in January, 1904, such an order was made by this court, but it appears the order was modified upon the giving of a certain bond by the appellant, and that the bond was given and approved on the 5th day of February, 1904. From that day to the time of the trial of the cause in the district court appellant was transacting its regular business, and its officers had access to its books, papers and records for that purpose. So it could have made its defense to the action, and the order of injunction constituted no excuse for its failure to do so.\\nIt further appears from the testimony of appellant's counsel, who was in charge of the case in Seward county, that he was not personally engaged in the litigation in this court; that he took no part therein, and no reason is shown why he could not have been present in the district court on the 24th day of February, 1904, when the case regularly came on for trial. It is not shown that appellant made any request to be permitted to use its books, papers and records for the purpose of defending in said action, as it could have done under the modified order of injunction. Again, no application was made to the district court for Seward county for a continuance of the cause there pending because of the injunction of this court, and the receiver was not requested to appear in that action and defend for the appellant. The only diligence exercised by counsel was to write a letter to the clerk of the district court informing him that the order of injunction had been allowed, and that a receiver had been appointed. Again, the evidence fails to show that the parties stipulated to try. the cause on the same pleadings used in the county court. On the contrary, it appears that counsel for the plaintiff had, from time to time, notified appellant's counsel of the condition of the docket, and when the case would be reached for trial. .Information had been given him of the fact that the plaintiff had filed a new petition, and suggestion had- been made in the letter containing such notice that the answer used in the county court might be filed, and serve for the answer in the district court, if counsel desired to pursue that course, and, yet, appellant neglected to even take the precaution of filing such answer. So, when the case Avas regularly called for trial, appellant was in default, and there was nothing left for the court to do but to enter such default, and permit the plaintiff to proceed to judgment. The lack of ordinary diligence on the part of the appellant, as shoAvn by the evidence herein, is fatal to its right to relief in the present action.\\nThere is another, reason why the judgment of the trial court must be affirmed. The appellant failed to plead any substantive facts which constitute a defense to the petition on which the judgment complained of was rendered. It is true, as above stated, that the petition contains an allegation that \\\"the plaintiff has a good and valid defense to said action, as appears from the answer filed in said cause.\\\" This statement, however, is a mere conclusion of law, and although it was treated as sufficient to permit the introduction of evidence on that point by the trial court, yet the proof sIioavs that the alleged defense was practically Avithout merit. It was claimed on the part of the appellant that, after the policy in question Avas issued and delivered to Alice, N. Landis, the appellant changed its by-laws so that she was not entitled to recover for her total disability. It Avas admitted that but for such change she could recover, and that in case of a recovery judgment should be rendered for the sum of $500. It appears that sometime prior to the 15th day of March, 1902, the board of directors of appellant passed a resolution amending its by-laws, and that according to the terms of such resolution the contract Avith the assured was changed and altered, but it was held by this court that the board of directors above mentioned was not a representative body, and the appellant was restrained from transacting business until it so amended its constitution and by-laAvs as to give it a representative form of government. It is alleged in the petition of the assured that her disability accrued sometime before the 15th day of March, 1902, and that fact is undisputed. The evidence shoAvs that the attempted change in the by-laws above mentioned Avas not approved or ratified by the grand lodge of the appellant until its session of 1902, which was held sometime in May of that year. So we are inclined to the view that the ansAver of the appellant in the case wherein the judgment complained of was rendered did not present a defense to such action.\\nFor the foregoing reasons, the judgment of the district court was right, and it is hereby\\nAffirmed.\"}"
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diff --git a/neb/596773.json b/neb/596773.json
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+"{\"id\": \"596773\", \"name\": \"John A. Orr et al., appellants, v. John H. Hall et al., appellees\", \"name_abbreviation\": \"Orr v. Hall\", \"decision_date\": \"1906-01-18\", \"docket_number\": \"No. 14,094\", \"first_page\": \"548\", \"last_page\": 550, \"citations\": \"75 Neb. 548\", \"volume\": \"75\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:51:44.848893+00:00\", \"provenance\": \"CAP\", \"judges\": \"Letton and Oldham, CC., concur.\", \"parties\": \"John A. Orr et al., appellants, v. John H. Hall et al., appellees.\", \"head_matter\": \"John A. Orr et al., appellants, v. John H. Hall et al., appellees.\\nFiled January 18, 1906.\\nNo. 14,094.\\nSales: Statute oe Frauds. An oral contract for the sale of goods, chattels, or things in action, for \\u00e1 price exceeding $50, is void, unless some of the goods, or evidences of some of the things, have been delivered to and accepted by the buyer, unless he shall have paid the whole or some part of the purchase price. Comp. St., ch. 32, sec. 9.\\nAppeal from the district court for Scott\\u2019s Bluff county: Hanson. M. Grimes, Judge.\\nAffirmed.\\nWright & Wright, G. F. Manderson, W. A Dilworth, E. B. Duffie and J. E. Kelby, for appellants.\\nKirkpatrick & Eager and J. E. Castleman, contra.\", \"word_count\": \"947\", \"char_count\": \"5174\", \"text\": \"Ames, C.\\nOn or about December 1, 1903, appellant Orr, as the agent of appellant Leavitt, applied to appellee Hall to purchase from the latter ten shares of the capital stock of the Winters Creek Irrigation Company, a corporation of this state. At that time Hall was the .owner of but seven shares of such stock, but had contracted and partly paid for the three additional shares desired. There was an oral agreement then made between Orr and Hall that the latter should complete his purchase within a week from that date, and should then execute a transfer of the whole ten shares to Leavitt, and deposit them in the First National Bank of Scott's Bluff, subject to the demand of Orr, who agreed that on or before that time he would deposit in it the sum of f900 to the use of Hall upon, and in consideration of, the delivery of the shares as aforesaid. Within the week Orr delivered to the bank a check on the \\\"Irrigators Bank\\\" payable to the order of the First National Bank and signed by the partnership of Wright, Orr & Howard, of which Orr was a member. At the time of the delivery of the check to the bank, Orr also delivered to it a memorandum on a separate piece of paper as follows: \\\"This amount to be paid on ten shares of Winters Creek stock of J. H. Hall, am to pay ninety cents on the dollar for same, are to be left at your bank for me with transfer. J. A. Orr.\\\" The check and memorandum were put in an envelope together, and were received and retained by the bank. Shortly afterwards certificates of ten shares of the stock were deposited by Hall with the bank, but without any transfer or assignment of them to Orr or Leavitt, and without any instruction or direction to deliver the same to either of them. On the contrary, he directed that they were to be kept, and they were kept, among the private papers of Hall in the bank, until some time later, when he transferred them to the bank as collateral security for a loan of money which he procured from it. In the meantime he explicitly refused, and still refuses, to transfer or deliver them to the plaintiffs or either of them. This is an action to compel a specific performance of the agreement, and resulted in the district court in a judgment of dismissal and for costs. The plaintiffs appealed.\\nWe are unable to see how the decision could have been different. The agreement is made out with sufficient certainty and clearness. It rests wholly in parol, except the memorandum delivered to the bank by Orr which, if obligatory upon either of the parties, binds Orr, or Orr and his principal alone. The statute (Comp. St. 1903, ch. 32, sec. 9, Ann. St. 5958), expressly provides: \\\"Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless, -first, a note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, second, unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or third, unless the buyer shall, at the time, pay some part of the purchase money.\\\" Now, no memorandum subscribed by the party sought to be charged has ever been made, and such memorandum as was made was not made at the time of entering into the agreement, nor at any time in the presence, or with the concurrence, of the defendant. N\\u00f3r were the shares, or any of them, or any evidences of them at any time delivered, or the purchase price or any of it at any time paid. Nor do we think that for any of these purposes the bank can be considered as the agent of either party, although it was proposed to make, it the agent of both parties in the capacity of stakeholder, and it did become such agent for the plaintiff Orr, but it did not have, and it was not contemplated that it ever should have, any authority as contracting agent for- either party.\\nThe check on the Irrigation Bank did not satisfy the requirement of the statute. It was not made or mentioned at the time of entering into the oral agreement, and it was not money, nor accepted as such or in lieu thereof, nor accepted, at all, and it was not payable to the vendor nor delivered even to the First National Bank, except conditionally. For these reasons, we recommend that the judgment of the district court be affirmed.\\nLetton and Oldham, CC., concur.\\nBy the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be\\nAffirmed.\"}"
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+"{\"id\": \"693787\", \"name\": \"Lita Sheldon-Zimbelman, appellant, v. Bryan Memorial Hospital, appellee\", \"name_abbreviation\": \"Sheldon-Zimbelman v. Bryan Memorial Hospital\", \"decision_date\": \"2000-01-14\", \"docket_number\": \"No. S-99-314\", \"first_page\": \"568\", \"last_page\": 581, \"citations\": \"258 Neb. 568\", \"volume\": \"258\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T22:58:58.360157+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.\", \"parties\": \"Lita Sheldon-Zimbelman, appellant, v. Bryan Memorial Hospital, appellee.\", \"head_matter\": \"Lita Sheldon-Zimbelman, appellant, v. Bryan Memorial Hospital, appellee.\\n604 N.W.2d 396\\nFiled January 14, 2000.\\nNo. S-99-314.\\nLaura A. Lowe, of Cobb & Hallinan, P.C., for appellant.\\nWalter E. Zink II and Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, for appellee.\\nHendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.\", \"word_count\": \"4313\", \"char_count\": \"27684\", \"text\": \"Miller-Lerman, J.\\nNATURE OF CASE\\nLita Sheldon-Zimbelman appeals from a decision by a three-judge review panel of the Nebraska Workers' Compensation Court, which affirmed in part, and in part reversed and remanded with directions the decision of a single Workers' Compensation Court judge. For the reasons stated below, we affirm the decision of the review panel.\\nSTATEMENT OF FACTS\\nOn January 27, 1992, while employed by Bryan Memorial Hospital (Bryan) as a micrographics sorter, Sheldon-Zimbelman suffered a work-related injury to her back, which injury arose out of and in the course of her employment. On June 22, 1993, Sheldon-Zimbelman filed a petition with the Workers' Compensation Court seeking workers' compensation benefits. On March 7,1994, following the original hearing, a single judge entered an award in favor of Sheldon-Zimbelman (original award). Pursuant to the original award, the single judge therein found, inter alia, that Sheldon-Zimbelman had \\\"suffered injuries to her back as a result of an accident arising out of and in the course of her employment.\\\" The single judge in the original award determined that Sheldon-Zimbelman had been either temporarily totally or temporarily partially disabled on various dates enumerated in the award. The single judge in the original award further found that as a result of the accident, SheldonZimbelman had sustained permanent partial disability in the form of a 20-percent loss of earning capacity.\\nAt the time of the accident, Sheldon-Zimbelman was receiving an average weekly wage of $358.53. Between the date of the accident and the date of the original award, Bryan had paid Sheldon-Zimbelman varying amounts of benefits. The single judge found Sheldon-Zimbelman was entitled to receive $239.02 per week for 34% weeks for temporary total disability (TTD) benefits, and the single judge credited Bryan for having already paid this amount. The single judge also awarded Sheldon-Zimbelman temporary partial disability (TPD) benefits in the amount of $3,340.97, computed at varying rates for 17 weeks. Bryan received a credit for previously paying this amount. The award further ordered Bryan to pay SheldonZimbelman $119.51 per week for 127? weeks for additional TPD benefits, and $47.80 per week for 2367? weeks for permanent partial disability (PPD) loss of earning benefits.\\nThus, consistent with Neb. Rev. Stat. \\u00a7 48-121(2) (Reissue 1998), the single judge in the original award credited the weeks Sheldon-Zimbelman had received TTD and TPD against her statutory entitlement to 300 weeks for PPD loss of earning benefits. The single judge further ruled that Bryan was entitled to a credit for having already paid to Sheldon-Zimbelman all of the TTD benefits, as well as $3,340.97 of the TPD benefits awarded.\\nFinally, the single judge found that Sheldon-Zimbelman was entitled to vocational rehabilitation and ordered that she be provided vocational rehabilitation in the form of a combined 4-year bachelor's degree program in human services at Southeast Community College and the College of St. Mary. On the single judge's own motion, the original award was modified to order Bryan to pay Sheldon-Zimbelman \\\"temporary disability\\\" while she was participating in vocational rehabilitation.\\nSheldon-Zimbelman completed her bachelor's degree program on or about May 11, 1996. While she was enrolled in the program, Bryan paid her temporary benefits in the amount of $239.02 per week for a total of 149 weeks. After she completed the vocational rehabilitation program, Bryan paid SheldonZimbelman 5977 weeks for PPD loss of earning benefits in the amount of $47.80 per week. On or about November 25, 1997, counsel for Bryan notified Sheldon-Zimbelman's counsel that Bryan was terminating the payment of Sheldon-Zimbelman's indemnity benefits. In a letter dated May 29, 1998, Bryan's counsel advised Sheldon-Zimbelman's counsel that it had ceased paying the benefits because Bryan had paid SheldonZimbelman more than 300 weeks of benefits, apparently relying upon \\u00a7 48-121(2).\\nOn January 21, 1998, Sheldon-Zimbelman filed a petition (second petition) bearing the same case number as the original petition. It is the outcome of the second petition which gives rise to this appeal. In her second petition, Sheldon-Zimbelman challenged Bryan's determination that it had paid her all of the indemnity benefits to which she was statutorily entitled. Specifically, Sheldon-Zimbelman challenged Bryan's claim that it was entitled to include in the 300-week calculation of total benefits the number of weeks it had paid her \\\"temporary disability\\\" benefits while she was participating in vocational rehabilitation. Sheldon-Zimbelman alleged that she was entitled to the entirety of the PPD loss of earning benefits awarded in the original award and that Bryan's \\\"setoff' was contrary .to Nebraska law and the workers' compensation statutes.\\nOn August 25, 1998, Sheldon-Zimbelman's second petition came on for hearing before a single judge of the Workers' Compensation Court. The evidence presented at the hearing showed that Bryan had paid Sheldon-Zimbelman 308 weeks of indemnity benefits, including 149 weeks of benefits paid while Sheldon-Zimbelman was participating in her vocational rehabilitation program. Sheldon-Zimbelman presented uncontroverted evidence that as a result of her injury, she had been unable to work for various periods of time between October 22,1996, and December 3, 1997. Evidence was admitted to show that during the majority of that time period, Bryan had paid SheldonZimbelman PPD loss of earning benefits in accordance with the original award. Evidence was also admitted to show that as a result of her workers' compensation injury, Sheldon-Zimbelman was unable to work beginning on August 5, 1998, and continuing through the date of the hearing on August 25.\\nIn a written order filed September 14, 1998, the single judge found, inter alia, that Sheldon-Zimbelman was totally disabled on various dates between October 22, 1996, and December 3, 1997, and ordered Bryan to pay TTD benefits instead of the PPD loss of earning capacity benefits Bryan had paid for those dates. The single judge also found that Sheldon-Zimbelman was entitled to receive TTD benefits beginning on August 5, 1998, and continuing on into the future \\\"for so long thereafter as [SheldonZimbelman] shall remain temporarily totally disabled.\\\" The single judge concluded that although this award of additional TTD benefits would result in Bryan's paying more than 300 weeks of total benefits, there was no statutory limitation on the number of weeks TTD benefits could be paid. The single judge stated that in view of the resolution of the foregoing matters, the judge would \\\"decline\\\" to address Bryan's claim that it should be credited for benefits it had paid to Sheldon-Zimbelman while she was participating in vocational rehabilitation.\\nBoth parties appealed the single judge's decision to the review panel. Their combined appeals came up for review hearing on February 23, 1999.\\nIn an order dated March 10, 1999, the review panel affirmed the single judge's legal conclusion that there was no statutory prohibition against paying in excess of 300 weeks in indemnity benefits to a workers' compensation claimant when the claimant remained temporarily totally disabled. The review panel concluded, however, that the single judge's award of TTD benefits for the dates between October 1996 and December 1997 was an improper award of retroactive benefits and was in error as a matter of law, based on this court's ruling in Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998). In Starks, we held, inter alia, that a party is not entitled to the modification of a prior workers' compensation award to the extent the modification predates the date of filing the petition to modify. The review panel found that the various dates between October 1996 and December 1997 for which the single judge had ordered the retroactive payment of TTD benefits, as opposed to PPD benefits, preceded the January 21, 1998, filing of SheldonZimbelman's second petition, and accordingly, it reversed the single judge's award of these retroactive TTD benefits.\\nThe review panel further ruled that the single judge erred in failing to address the issue of Bryan's claimed credit for the \\\"temporary disability\\\" benefits paid to Sheldon-Zimbelman while she was participating in vocational rehabilitation. The review panel determined that this was a question of law involving the interpretation of a statute and that accordingly, it had the authority to resolve this issue on appeal independent of any decision by the single judge.\\nTreating the benefits Bryan had paid to Sheldon-Zimbelman while she was undergoing vocational rehabilitation as \\\"temporary total disability,\\\" the review panel concluded that Bryan had paid Sheldon-Zimbelman partial disability subsequent to paying total disability and that pursuant to \\u00a7 48-121(2), Bryan was entitled to a credit against the 300-week statutory limitation on the payment of indemnity benefits for the weeks of TTD benefits which it had paid Sheldon-Zimbelman while she was participating in vocational rehabilitation. The review panel remanded the case to the single judge and ordered the single judge to make the necessary specific findings and calculations to reflect Bryan's credit for the 149 weeks it had paid Sheldon-Zimbelman TTD benefits while she was participating in vocational rehabilitation prior to receipt of the PPD loss of earning benefits. SheldonZimbelman appeals from the decision of the review panel.\\nASSIGNMENTS OF ERROR\\nOn appeal, Sheldon-Zimbelman asserts two assignments of error: (1) The review panel erred in reversing the single judge's determination that she was entitled to a retroactive award of TTD benefits instead of the PPD loss of earning indemnity payments she had received for the majority of the time between October 22, 1996, and December 3, 1997, and (2) the review panel erred in determining that pursuant to \\u00a7 48-121(2), Bryan was entitled to a credit against the 300-week maximum indemnity period for the 149 weeks that it had paid temporary benefits to Sheldon-Zimbelman while she was participating in vocational rehabilitation.\\nSTANDARDS OF REVIEW\\nUnder the provisions of Neb. Rev. Stat. \\u00a7 48-185 (Reissue 1998), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999). In determining whether to affirm, modify, reverse, or set aside the judgment of the Workers' Compensation Court review panel, the higher appellate court reviews the findings of the sin gle judge who conducted the original hearing. Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233 (1999). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998).\\nANALYSIS\\nRetroactive Award of TTD.\\nSheldon-Zimbelman claims that the review panel erred in reversing the single judge's award of retroactive TTD payments. In support of her claim, Sheldon-Zimbelman argues that the review panel erred because it reversed the findings of fact made by the single judge with regard to her total disability and that the review panel is without authority to reverse findings of fact. This assignment of error is without merit.\\nSheldon-Zimbelman misperceives the review panel's decision pertaining to the single judge's award concerning retroactive TTD payments. The review panel did not reverse the single judge's factual findings, but, rather, the review panel determined that as a matter of law, Sheldon-Zimbelman was not entitled to the retroactive award she sought. The review panel may review a single-judge decision for errors of law. Neb. Rev. Stat. \\u00a748-179 (Reissue 1998).\\nIt is well settled that an appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Anderson v. Omaha Pub. Sch. Dist., supra. Accordingly, we review Sheldon-Zimbelman's assigned error regarding the retroactive award of TTD benefits independent of the lower courts' decisions. Based on applicable legal principles, we affirm the decision of the review panel that SheldonZimbelman was not entitled to the retroactive award of TTD payments.\\nAs recognized by the review panel, the case Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998), is dispositive of this issue on appeal. In Starks, the claimant, on original hearing, was found to be permanently and totally disabled. Sometime after this award was entered, the employer obtained information that the claimant was working at various odd jobs, in contravention of the determination at the original hearing that he was totally disabled. Relying on this information, the employer, without a court order, terminated the claimant's workers' compensation benefits. One month later, the employer filed a petition with the Workers' Compensation Court seeking a modification of the original award. The single judge modified the award and the review panel affirmed.\\nOn appeal to this court, we affirmed the review panel's decision affirming the single judge's order to modify the original award, but we held in Starks, as a matter of law, that a modification to a workers' compensation award cannot be applied retroactively before the date the application for modification is filed and, accordingly, modified that portion of the review panel's decision affirming the retroactive portion of the award that predated the filing of the application to modify. We reached our decision, in part, based upon earlier decisions of this court that a workers' compensation award is \\\"in full force and effect, as originally entered, until the award is modified pursuant to the procedure set forth in \\u00a7 48-141.\\\" 254 Neb. at 38, 573 N.W.2d at 763 (citing ITT Hartford v. Rodriguez, 249 Neb. 445, 543 N.W.2d 740 (1996), and Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942)).\\nIn the instant appeal, Sheldon-Zimbelman filed her second petition on January 21, 1998. The single judge awarded Sheldon-Zimbelman TTD benefits for the time period between October 22, 1996, to December 3, 1997. The award of these TTD benefits antedates the filing of her second petition, and the review panel was correct as a matter of law in reversing the single judge's award of retroactive TTD benefits.\\nTo avoid the application of the principles enunciated in Starks, Sheldon-Zimbelman argues that her second petition did not seek a modification of the single judge's original award, but, rather, the single judge was merely clarifying her prior award to state that during those time periods that the evidence demonstrated Sheldon-Zimbelman had been disabled, she should have been paid TTD benefits instead of PPD loss of earning indemnity payments. Sheldon-Zimbelman relies in part on Bennett v. J. C. Robinson Seed Co., 7 Neb. App. 525, 583 N.W.2d 370 (1998), in support of her claim. We reject Sheldon-Zimbelman's argument.\\nInitially, we note that the original award as modified in 1994 did not provide for the payment of TTD benefits to SheldonZimbelman, except for those benefits which had already been paid to her, for which Bryan received a credit, and the award of \\\"temporary disability\\\" benefits which Sheldon-Zimbelman was to receive while she participated in vocational rehabilitation. As of the date of the original award, Sheldon-Zimbelman was found to be entitled to PPD loss of earning indemnity payments. Implicit in this award is a finding by the single judge that Sheldon-Zimbelman had reached maximum medical improvement and was no longer entitled to temporary benefits, except to the extent she participated in vocational rehabilitation. See Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998).\\nWe have long observed that the Nebraska Workers' Compensation Court is a tribunal of limited and special jurisdiction, and \\\"it possesses only that authority which is conferred upon it by the Nebraska Workers' Compensation Act.\\\" Ira v. Swift-Eckrich, 251 Neb. 411, 414, 558 N.W.2d 40, 43 (1997). We have previously held that the only authority the Workers' Compensation Court possesses to modify orders or awards is that provided by Neb. Rev. Stat. \\u00a7 48-141 and 48-180 (Reissue 1998). See, Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997); Ira v. Swift-Eckrich, supra; Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996).\\nSection 48-141(2) is the statutory authority for the Workers' Compensation Court to modify an award \\\"on the ground of increase or decrease of incapacity due solely to the injury.\\\" On appeal to this court, Sheldon-Zimbelman denies that she filed a petition for modification under \\u00a7 48-141 based on an increase or decrease of incapacity. Accordingly, the retroactive award of TTD benefits cannot be justified on the authority of \\u00a7 48-141.\\nThe Nebraska Workers' Compensation Act, in \\u00a7 48-180, provides that the Workers' Compensation Court may \\\"modify or change its findings, order, award, or judgment . . . within ten days from the date of such findings, order, award, or judgment for the purpose of correcting any ambiguity, clerical error, or patent or obvious error.\\\" The original award was entered in this case on March 7, 1994. The award on Sheldon-Zimbelman's second petition from which she is appealing was entered on September 14, 1998. This latter award entered greater than 10 days after the original award is not a corrective award provided for in \\u00a7 48-180.\\nBecause Sheldon-Zimbelman did not seek a modification under \\u00a7 48-141 due to a change in incapacity and because a modification of the 1994 award was unavailable to SheldonZimbelman in 1998 under the 10-day provision of \\u00a7 48-180, the single judge was without statutory authority to modify the original award and the review panel was correct in reversing the single judge's award of retroactive TTD benefits. With respect to Bennett v. J. C. Robinson Seed Co., 7 Neb. App. 525, 583 N.W.2d 370 (1998), upon which Sheldon-Zimbelman relies, we note that the employer therein did not appeal to the review panel. To the extent that Bennett, supra, implies that a retroactive award is permissible, it is disapproved. SheldonZimbelman's first assignment of error is without merit.\\nStatutory Maximum 300 Weeks of Benefits: \\u00a7 48-121(2).\\nOn appeal, Sheldon-Zimbelman challenges the review panel's determination that the indemnity payments she received while participating in vocational rehabilitation constituted TTD payments to be credited against the statutory maximum 300 weeks for which she was entitled to receive indemnity benefits. We find no merit to this assignment of error.\\nSection 48-121 controls this issue. Section 48-121 provides as follows:\\nThe following schedule of compensation is hereby established for injuries resulting in disability:\\n(1) For total disability, the compensation during such disability shall be sixty-six and two-thirds percent of the wages received at the time of injury .\\n(2) For disability partial in character, except the particular cases mentioned in subdivision (3) of this section, the compensation shall be sixty-six and two-thirds percent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter . This compensation shall be paid during the period of such partial disability but not beyond three hundred weeks. Should total disability be followed by partial disability, the period of three hundred weeks mentioned in this subdivision shall be reduced by the number of weeks during which compensation was paid for such total disability.\\n(5) The employee shall be entitled to compensation from his or her employer for temporary disability while undergoing rehabilitation whether the rehabilitation is voluntarily offered by the employer and accepted by the employee or is ordered by the Nebraska Workers' Compensation Court or any judge of the compensation court.\\n(Emphasis supplied.)\\nBased on \\u00a7 48-121(1), total disability is compensated at two-thirds of the average weekly wage. Pursuant to \\u00a7 48-121(2), partial disability is compensated at two-thirds of the difference between the claimant's earning power before and after the injury, but compensation under this subsection is limited to 300 weeks. Furthermore, \\u00a7 48-121(2) provides that if payments for disability that is \\\"partial\\\" in character under subsection (2) follow payments for disability that is \\\"total\\\" in character under subsection (1), the employer is given credit against this 300-week total for the number of weeks that benefits for disability total in character were paid under subsection (1). Finally, under \\u00a7 48-121(5), if a claimant is receiving vocational rehabilitation, he or she is to be provided temporary disability payments.\\nSheldon-Zimbelman argues that because \\u00a7 48-121(2) uses the word \\\"partial\\\" and \\u00a7 48-121(5) uses the word \\\"temporary,\\\" \\u00a7 48-121(2) does not permit that \\\"temporary\\\" benefits paid pursuant to \\u00a7 48-121(5) can be applied as a credit against the 300-week maximum provided for in \\u00a7 48-121(2). SheldonZimbelman does not challenge the review panel's determination that TTD payments in general are credited against the 300 weeks of partial disability payments provided for under \\u00a7 48-121(2) where benefits for disability \\\"total\\\" in character are followed by benefits for disability \\\"partial\\\" in character. She merely challenges whether the disability benefits a claimant is paid while undergoing vocational rehabilitation are or can be \\\"temporary total disability\\\" benefits. In resolving the issue raised by Sheldon-Zimbelman, we refer to the controlling statute and cases under it.\\nWhen construing statutes, \\\"we are guided by the presumption that the Legislature intended a sensible, rather than an absurd, result in enacting the statute and its amendments.\\\" Battle Creek State Bank v. Haake, 255 Neb. 666, 680, 587 N.W.2d 83, 92 (1998). As a further aid to statutory interpretation, \\\"we must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.\\\" Id. Finally, we have stated that \\\" '[w]hen considering a series or collection of statutes pertaining to a certain subject matter which are in pari materia, they may be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions of the act are consistent and sensible.' \\\" In re Joshua M. et al., 256 Neb. 596, 605, 591 N.W.2d 557, 563 (1999) (quoting Baker's Supermarkets v. State, 248 Neb. 984, 540 N.W.2d 574 (1995)).\\nThis court has previously considered the various terms used in \\u00a7 48-121 and stated: \\\"In relation to 'total disability' under \\u00a7 48-121(1) and 'disability partial in character' under \\u00a7 48-121(2), 'temporary' and 'permanent' refer to the duration of disability, while 'total' and 'partial' refer to the degree or extent of the diminished employability or impairment of earning power or earning capacity.\\\" Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 470, 461 N.W.2d 565, 573 (1990). In opining on claims under \\u00a7 48-121, this court has used the phrases \\\"temporary total disability,\\\" \\\"temporary partial disability,\\\" and \\\"permanent partial disability\\\" to describe the nature of the workers' compensation benefits a claimant is receiving pursuant to various subsections of \\u00a7 48-121, notwithstanding the fact that those phrases in their entirety do not appear in \\u00a7 48-121. See, generally, Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998); Foreman v. State, 240 Neb. 716, 483 N.W.2d 752 (1992); Boults v. Church, 200 Neb. 319, 263 N.W.2d 478 (1978).\\nSpecifically, with respect to \\u00a7 48-121, this court has on numerous occasions, where supported by the facts, described the benefits which a workers' compensation claimant was receiving while undergoing vocational rehabilitation under \\u00a7 48-121(5) as \\\"temporary total disability\\\" benefits, not merely as \\\"temporary disability\\\" benefits or \\\"total disability\\\" benefits. See, e.g., Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998); Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997); Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990); Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987). We so ruled because a claimant pursuing vocational rehabilitation may do so to the exclusion of employment and because under such circumstances, the disability is therefore \\\"total,\\\" but such vocational rehabilitation is designed to result in future employability and, therefore, the disability is \\\"temporary.\\\" See Neb. Rev. Stat. \\u00a7 48-162.01(1) (Reissue 1998) (providing that \\\"[o]ne of the primary purposes of the Nebraska Workers' Compensation Act shall be restoration of the injured employee to gainful employment\\\"). Because benefits received during vocational rehabilitation under \\u00a7 48-121(5) may be and in this case were \\\"temporary total disability\\\" benefits, a species of total disability benefits, and where such benefits are followed by \\\"partial disability\\\" benefits as in the instant case, pursuant to \\u00a7 48-121(2), the 300-week period shall be reduced by the number of weeks during which compensation was paid for such total disability.\\nAlthough we note that the Legislature has recently amended \\u00a7 48-121, the amendment does not supersede this court's interpretation of \\u00a7 48-121(5), in which on the specific facts of the cases, we have deemed the benefits received during vocational rehabilitation to be \\\"temporary total disability\\\" benefits. See \\u00a7 48-121(5) (Supp. 1999). When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation. State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999); Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 (1992).\\nAccordingly, we conclude that the temporary benefits Sheldon-Zimbelman received pursuant to \\u00a7 48-121(5) while pursuing vocational rehabilitation were TTD benefits and were properly credited against the 300-week statutory limitation on workers' compensation indemnity benefits, to the extent such a credit is permitted under \\u00a7 48-121(2). The review panel was correct in ruling that as a matter of law under \\u00a7 48-121(2), Bryan was entitled to a credit against the PPD payments it owed Sheldon-Zimbelman payable after completion of SheldonZimbelman's vocational rehabilitation for the TTD benefits Bryan had previously paid Sheldon-Zimbelman while she was undergoing vocational rehabilitation. Sheldon-Zimbelman's assignment of error is without merit.\\nCONCLUSION\\nHaving found no merit to Sheldon-Zimbelman's assigned errors, we affirm the decision of the Workers' Compensation Court review panel.\\nAffirmed.\"}"
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+"{\"id\": \"8520623\", \"name\": \"The Union Pacific Railway Company, appellant, v. The Burlington & Missouri River Railroad Company in Nebraska et al., appellees\", \"name_abbreviation\": \"Union Pacific Railway Co. v. Burlington & Missouri River Railroad\", \"decision_date\": \"1886-01\", \"docket_number\": \"\", \"first_page\": \"386\", \"last_page\": 391, \"citations\": \"19 Neb. 386\", \"volume\": \"19\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:12:42.473743+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges conour.\", \"parties\": \"The Union Pacific Railway Company, appellant, v. The Burlington & Missouri River Railroad Company in Nebraska et al., appellees.\", \"head_matter\": \"The Union Pacific Railway Company, appellant, v. The Burlington & Missouri River Railroad Company in Nebraska et al., appellees.\\nMunicipal Corporations: assessors op damages. It is the true sense and meaning of the proviso to subdivision 28 of section 69, chapter 14, Compiled Statutes, that before the election of the five disinterested householders therein provided for, an ordinance should be passed, approved, and published, according to law, prescribing the manner of such election and the compensation of such householders as assessors ; and it is not sufficient that such householders he appointed in gross by ordinance, without such method being prescribed.\\nAppeal from the district court of Buffalo county. Tried below before Gaslin, J.\\nA. J. Poppleton and John M. Thurston, for appellant.\\nT. M. Marquett and J. W. JDeweese, for appellees.\", \"word_count\": \"1751\", \"char_count\": \"10327\", \"text\": \"Cobb, J.\\nThis action was brought in the district court by the appellant against the appellees for the purpose of enjoining the erection of a stone grain elevator, then in course of construction by the individual appellees, on ground claimed by the corporation appellee, but which had been formally, at least, taken by the city of Kearney for the purpose of a street. The plaintiff was a large owner and holder of property in said city, some of which abutted on the said street. A temporary injunction was granted; but upon the final trial and hearing to the court a finding, was made and judgment rendered for the defendants, and the cause dismissed. The plaintiff brings the cause to this court by appeal.\\nIn support of the finding and judgment of the district court several points are presented, but one which it is deemed necessary to discuss in support of the conclusion to which I have arrived upon a somewhat patient and thorough examination of the case.\\nThe ordinance of the city of Kearney, upon which the proceedings for the condemnation of the ground in question were based, was copied in the record and is here reproduced :\\n\\\" AN ORDINANCE TO OPEN NEBRASKA AVENUE;\\n\\\" Be it ordained by the Mayor and Common Council of the City of Kearney:\\n\\\"Section 1. That it is hereby deemed to be and it is necessary to open and extend Nebraska avenue, a street now existing and being in said city, from the north line of North Railroad street to the south line of South Railroad street in said city.\\n\\\" Section 2-, That for that purpose the following real estate be and the same is hereby condemned and appropriated to the use of said city as a street for public purposes, to-wit, a strip of land fifty feet in width, bounded as follows :\\n\\\" Commencing at the point where the east line of Nebraska avenue intersects the north line of North Railroad street, thence south to the south line of South Railroad street, thence west fifty feet (50), thence north to the north line of North Railroad street, thence east fifty feet (50) to the place of beginning.\\n\\\" Section 3. That John H. Roe, J. D. Seaman, George E. Smith, Abiel M. Pettis, W. C. Sunderland, all citizens of the city of Kearney, five disinterested householders of said city of Kearney, be and they are hereby elected to determine by assessment the damages suffered by the owner or owners of said property through which the said street is hereby opened and extended.\\n\\\" Section 4. Said assessors so appointed shall fix a time and place of meeting to make such assessment, and the city clerk shall give to the owners of real estate taken for opening said street at least ten days' notice in writing of the same. Said notice may be served upon the agent of any corporation owning any part of said real estate. Said assessors before making said assessment shall subscribe and take an oath in writing that they will faithfully and impartially make the assessment to them submitted.\\n\\\" Section 5. Said assessors shall make their assessments in writing, and file the same in the office of the city clerk, together with an affidavit of the due and lawful publication of this ordinance, and an affidavit' of the service of the notice hereinbefore provided for upon the owners of said property so taken, or their agents, and the city clerk shall forward to the county clerk a duly certified copy thereof.\\n\\\"Section 6. The mayor shall tender to theowner orown-\\u2022ers of said property, or their said agents, the-amount of the assessments so made, and thereupon said street shall be and become open to the public.\\n\\\" Section 7. All ordinances or parts of ordinances in conflict herewith are hereby repealed.\\n\\\" Section 8. This ordinance shall take effect and be in force from and after its passage and publication.\\n\\\"Attest: E. M. C\\u00fcNNING-ham,\\n\\\" City Cleric.\\\"\\nThe authority on the part of the city to condemn and appropriate private property for the purpose contemplated by said ordinance is found in subdivision 18 of section 69 of chapter 14, of the Compiled Statutes, which is in the following language. I quote only the proviso : \\\" Provided, That in all cases the city or village shall make the person or persons whose property shall be taken or injured thereby, adequate compensation therefor, to be determined by the assessment of five disinterested householders, who shall be elected and compensated as may be prescribed by ordinance, and who shall in the discharge of their duties act under oath faithfully and impartially to make the assessment to them submitted.\\\"\\nThe point is that the five householders who made the assessment of the compensation to the owners of the property taken by virtue of the said ordinance were not elected in a manner prescribed by ordinance, and hence the proceedings of the city were ineffectual to appropriate the said property. This is a bill in equity to enforce such condemnation against the acknowledged owner of the fee. It will not be questioned that under the authorities, as well as upon the reason of the case, a condemnation and appropriation to be thus enforced must be stridi juris. See Mills on Eminent Domain, \\u00a7 90, and authorities there cited. It is not sufficient that the jury or appraisers were possessed of all the qualifications provided by law, but they must have been elected in the manner provided by the statute authorizing the appropriation. It is obvious from the language of the proviso above quoted that it was the intention of the law-makers to provide that before the election of the five disinterested householders to assess the adequate compensation to the owners of property taken, or injured, for the purpose contemplated by the said section an ordinance should be passed by the city council, approved by the mayor, and published in accordance with the provision of the charter on that subject, providing a form, method, and manner for the election of such five disinterested householders, and for ascertaining and fixing their compensation for their services in making such assessment. The well-known rule that in construing a statute some force and meaning must be accorded, if possible, to all of its words and sentences, has been often invoked by this court, and cannot be questioned. Bearing this rule in mind I cannot believe that the purpose of the proviso is satisfied by an election or designation of such householders without any previous rule or prescribed manner or method by which they should be elected and compensated. Furthermore, I do not- think that the naming or designating of a person or number of persons in the body of an ordinance, embracing other and independent provisions, is an election within the meaning of the section now under consideration.\\nIt is of the very essence of an election by independent voters that each one shall have an opportunity to vote for the candidate or person of his choice without having his vote so cast also counted for some one not his choice, or for some measure not approved by him. .In the matter now being considered it is quite reasonable to conclude, indeed it is quite obvious, that the main questions involved in the passage of the ordinance by the common council were the opening of the street and the appropriating of defendant's property therefor ; the naming of the persons to assess the value of and damages to the property to be appropriated was the minor proposition, yet I believe it was deemed by the framers of the provision of law now being considered a matter of sufficient importance to engage the attention of the common council, not only as a major but as the sole proposition on which to exercise its power of election, and that, too, after having previously passed an ordinance providing for or prescribing the method of such election.\\nWhile considering the proviso above quoted we should not lose sight of the word compensated. It is very clearly to my mind the intent and meaning of the language that the compensation or pay of the assessors should be prescribed,'fixed by ordinance, before entering upon the discharge of their duties by them. The assessor should be entirely impartial between the city and the property owner; to this end the power to fix the amount of their compensation for their services should not be allowed to remain potential in the city or counsel until after the services are performed. Such amount or rate to be fixed high or low as the city officers might be pleased or displeased with the valuation of the property or assessment of damages made by such assessors. This construction gives to the language of the section a clear and reasonable meaning. I know of none other which would.\\nI therefore reach the conclusion that the proceedings on the part of the city of Kearney, as shown by the record, in respect to the election of five disinterested householders to determine by assessment the adequate compensation to be made to the owners of property to be taken or damaged by reason of the opening of said street, did not follow the statute strictly, and hence that the plaintiff as a property-holder of said city acquired no right, either legal or equitable, to restrain by injunction the erection of the grain elevator mentioned in the petition.\\nHaving reached the above conclusion, which, if correct, will sustain the finding and judgment of the district court, it is not deemed necessary to examine the other points raised by counsel and argued in the brief.\\nThe judgment of the district court is affirmed.\\nJUDGMENT AFFIRMED.\\nThe other judges conour.\"}"
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+"{\"id\": \"8521805\", \"name\": \"The State of Nebraska, ex rel. Jerome Cook and Joseph Van Volin, v. William S. Bloom, Treasurer\", \"name_abbreviation\": \"State ex rel. Cook v. Bloom\", \"decision_date\": \"1886-01\", \"docket_number\": \"\", \"first_page\": \"562\", \"last_page\": 565, \"citations\": \"19 Neb. 562\", \"volume\": \"19\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T17:12:42.473743+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concur.\", \"parties\": \"The State of Nebraska, ex rel. Jerome Cook and Joseph Van Volin, v. William S. Bloom, Treasurer.\", \"head_matter\": \"The State of Nebraska, ex rel. Jerome Cook and Joseph Van Volin, v. William S. Bloom, Treasurer.\\nSchool District Money. Money can be drawn from the treasury of a school district only by orders on the treasurer signed by the director and countersigned by the moderator.\\nORIGINAL application for mandamus.\\nJohn M. Bagan and I). W. Barker, for relator.\\nCase & McNeny, for respondent.\", \"word_count\": \"941\", \"char_count\": \"5459\", \"text\": \"Maxwell, Ch. J.\\nThis is an application for a mandamus to compel the defendant to pay a certain school order of which the following is a copy:\\n\\\" $3,000.00.\\n\\\" State oe N ebrask a, 1 Nuckolls Coukty, January 15tb, 1886. J\\n\\\"Treasurer of school district No. 11, of Nuckolls county, Nebraska: Pay to the order of assignees of J. T. Donahoo, Messrs. Cook and Van Volin, the sum of three thousand dollars, as per contract, out of any money in your hands belonging to the fund for building.\\n\\\" Georue BrowN, Supt. Architect.\\n\\\"Geo. F. C'oltoN, Director.\\n\\\" Countersigned,\\n\\\"G. L. Day, Moderator.\\\"\\nThe facts in the case, as they appear from the record, are briefly these: That on the 19th of August, 1885, one James T. Donahoo entered into a contract with the-proper officers of school district eleven, of Nuckolls county, to erect a school building in said district according to certain plans and specifications prepared by an architect; that said work was to be completed according to the plans and specifications, and to the satisfaction of the architect. The-price to be paid said Donahoo was $11,800, to be paid as follows: Two thousand dollars when the basement was completed, and the first floor joists laid; $2,000 when the first story was erected, and the second floor joists laid; $3,-000 when the building was enclosed, and the roof put on, and the remainder, being $4,800, when the building was completed and accepted. To secure the performance of the contract Donahoo gave a bond to the district in the sum of $15,000, with the relators as- sureties. Donahoo completed the basement and the first story, and laid the joists for the second floor, all of such work being done to the satisfaction of the architect, and obtained warrants on the defendant for $4,000, which were paid. Donahoo then went to his sureties and stated to them that he was unable to complete the contract, and thereupon the sureties took an assignment of the contract to themselves,.and with the assent of the school board entered upon the completion of the building, and on enclosing the same and.putting on the roof the warrant in question was drawn on the defendant, who refused to pay the same, principally on the ground that Donahoo had drawn his personal orders to an amount in excess of $2,600 on said fund, which orders had been paid. The following is a copy of one of the orders: '\\n\\\"$1,000. Citizen's Bank, \\\\ Superior, Neb., Oct. 15th, 1885. j\\n\\\"At sight pay to the order of Citizen's Bank one thousand dollars, with exchange, value received, and charge .same to account of\\n\\\"Jas. T. Donahoo.\\n\\\" To W. S. Bloom, Treasurer 8.1). No. 11, Superior, Neb.\\\"\\nThe question presented is, does the payment of these personal drafts to Donahoo constitute any defense to this action? We think not. The contract provides the terms and conditions on which the contractor was to be paid and the treasurer has not the power to change the same. . If he pays out money upon the personal obligations of a party he does so at his peril.\\nSec. 16, subdivision 4, chap. 79, Comp. St., provides that, the director \\\" shall draw and sign all orders upon the treasurer for all moneys to be disbursed by the district, and all warrants upon the county treasurer for moneys raised for district purposes, or apportioned to the district by the \\u2022county superintendent, and present the same to the moderator to be countersigned by him, and no warrant shall be issued until so countersigned. No warrant shall be countersigned by the moderator until the amount for which the warrant is drawn is written upon its face. The moderator shall keep a record in a book furnished by the district of \\u2022the amount, date, purpose for which drawn, and name of person to whom issued of each warrant countersigned by him.\\\" .\\nSection 5 of the same subdivision and chapter provides that, \\\" It shall be the duty of the treasurer of each district to apply for and receive from the county treasurer all school moneys apportioned to the district or collected for the same by said county treasurer, upon order of the director, countersigned by the moderator, and to pay over on the order of the director, countersigned by the moderator of such district, all moneys received by him.\\\"\\nThese provisions are decisive of this case, and the payment by the defendant of Donahoo's drafts is no defense to this action. And as it appears that there are sufficient funds in the hands of the treasurer belonging to the district to pay the order in question a peremptory writ will issue as prayed.\\nSince the opinion in this case was prepared, the attorneys for the defendant have called the attention of the court to section 11, subdivision 3, chap. 79, Comp. St., which provides that certain disputed matters shall be referred to the county superintendent, who, if necessary, shall apply for a mandamus. This, however, will not prevent a party in a proper case from bringing an action in his own name. We are also referred to School District v. Collins, 16 Kan., 406, which we do not think applicable to the facts in this case.\\nWrit awarded.\\nThe other judges concur.\"}"
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+"{\"id\": \"8547113\", \"name\": \"Tecumseh National Bank v. George W. Harmon\", \"name_abbreviation\": \"Tecumseh National Bank v. Harmon\", \"decision_date\": \"1896-04-21\", \"docket_number\": \"No. 6499\", \"first_page\": \"222\", \"last_page\": 227, \"citations\": \"48 Neb. 222\", \"volume\": \"48\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:16:30.253238+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tecumseh National Bank v. George W. Harmon.\", \"head_matter\": \"Tecumseh National Bank v. George W. Harmon.\\nFiled April 21, 1896.\\nNo. 6499.\\n1. Action on Bank Deposit: Tbial: Pleading: Amendment by AGREEMENT: Practice. H. sued the T. Bank on a deposit. The hank answered by a general denial. During the trial, it undertook to-prove payment. Objection being made to the relevancy of the proof, an agreement was made in open court whereby the bank was allowed twenty days to amend its answer \\u201cin any manner,\\u201d with the same effect as if presently filed, and the trial proceeded. The instructions given excluded from the jury the consideration of the issue of payment which was finally tendered by the amended answer, filed after trial, but within the stipulated time. Held, That the plaintiff was bound by the terms of his stipulation, and that the judgment must be reversed for failure to submit the issues finally framed, to the jury.\\n2. Practice: Trial. The practice of proceeding with a trial subject to a future amendment of the pleadings, criticised.\\nError from the district court of Johnson county. Tried below before Babcock, J.\\nJ dim E. Ames and 8. P. Davidson, for plaintiff in error.\\nT. Appelget and J. H. Broady, contra.\", \"word_count\": \"1776\", \"char_count\": \"10322\", \"text\": \"Irvine, C.\\nThis case has been elaborately argued, orally and on briefs, with relation to questions of substantive law supposed to be involved therein. We think, however, that its decision must depend chiefly upon matters of practice, presented by a state of the record so anomalous that they must be determined principally upon general considerations, without the aid of authority. Harmon brought the suit against the Tecumseh National Bank, alleging that on the 6th day of March, 1891, he deposited with the bank $5,000, at the instance and request of the bank, and that the deposit was to draw interest at six per cent per annum; that $1,000 and all interest to March 9,1892, had been paid, but the remaining $4,000, with interest from said March 9, remained due. To this petition there was originally filed an answer admitting the corporate capacity of the defendant, and denying all other allegations. On the issues so framed the case proceeded to trial, but immediately after the defendant began to introduce its evidence it was confronted by an objection on the ground of irrelevancy. What then occurred is thus recited in the record: \\\"The defendant here asks leave of court to amend his answer, to which the plaintiff objects. On the intimation of the court that he would permit the defendant to withdraw a juror and consequently continue the case, rather than submit to that, the plaintiff consents that the defendant can go on and draw their answer in any manner and file it, and they will rely on the instructions of the court. It is agreed by the parties that the amended answer so filed will have the same effect as though filed now. Said answer to be filed within twenty days.\\\" Thereupon the case proceeded and the evidence took a wide range. There was a verdict for the plaintiff for $4,000; with interest. Judgment was entered on this, and the defendant prosecutes error.\\nOn the one side it is contended that the verdict is not sustained by the evidence; on the other, that, without regard to any error wbicli may have occurred in the course of the trial, the verdict was the only one which could be properly rendered tinder the evidence, and that the judgment should for that reason be affirmed. As we think the cause must be remanded for a new trial, we forbear any comment upon the evidence beyond what is necessary to solve the questions now presented to us, and simply say that in our opinion it was of such a character as to require the submission of the contested issues to a jury. There had been for a long time in Tecumseh a firm of bankers known as Russell & Holmes. Latterly it seems that this concern, whether by incorporation or otherwise does not appear, was styled \\\"The Bank of Russell & Holmes.\\\" Before the transaction here in controversy, the Tecumseh National Bank was organized and seems to have become a successor to Russell & Holmes, although the evidence tends to show that the former firm remained in existence for the purpose of closing- out some incidental business. Mr. Holmes, of the old firm, was president of the national bank. March 6,1891, there was a conversation between Harmon and Mr. Holmes in the banking house, looking to the withdrawal by Mr. Harmon of money he had on deposit in the Carson National Bank of Auburn, and the loan or deposit of this money on interest either with Russell & Holmes or the Tecumseh National Bank. Whether the party contracting to receive the deposit or loan was Russell & Holmes or the Tecumseh National Bank is the vital question of the case, coupled with another, which we do not pass upon, which is whether, under the circumstances, the bank may be held liable by estoppel on account of the acts of its president, although it did not in fact receive the benefit of the money. It was agreed between Holmes and Harmon that Harmon should withdraw $5,000 from the Carson bank and place it with Holmes. He drew his check upon the Carson bank for $5,000 to the order of the Tecumseh National Bank, and received what is called a deposit slip, headed \\\"Tecumseh National Bank,\\\" signed by Holmes as president, and indicating the deposit of the check for $5,000. This check was by the Tecnmseh bank indorsed for collection, and it was collected. March 9, three days after this transaction, there was issued by Holmes, and accepted by Harmon, a pass-book, being one of the books which had formerly been used by the bank of Russell & Holmes. This was marked on the cover, \\\"Bank of Russell & Holmes, Tecumseh, Nebraska, in account with George Harmon.\\\" Inside was the following:\\n\\\"The Bank of Russell & Holmes, Dr.\\n1891.\\nMch. 9. Deposit. $5,000\\n\\\"This deposit to draw interest at six per cent per an. if left six months. Interest paid to Mch. 9 \\u2014 91.\\\"\\nOn another page were certain entries indicating the payment of certain sums as interest and principal. There was evidence aliunde tending to show that the transaction was a loan to Russell & Holmes at six per cent; that the deposit of March 6 was only preliminary to that transaction; and that on March 9 the transaction was consummated, as evidenced by the pass-book, the money in fact passing to Russell & Holmes. On the other hand, there Avas evidence tending to show that Harmon understood that the whole transaction was with the Tecumseh National Bank; that he was unable to read, and therefore Avas perhaps not bound by the form of the pass-book, Avhich might at least have put another man on inquiry.\\nThe court gave a number of instructions at the request of the plaintiff, several of which were to the effect that the jury should find for the plaintiff if, on March 6, or about that time, he left with the defendant the money sued for. By one of the instructions the jury was told that the plaintiff's check and the deposit slip of March 6 constituted a complete written contract, the terms of AArhich could not be contradicted, by oral evidence, and that the jury should disregard all oral evidence tending to so contradict these papers. By still another the jury was instructed that the pass-book of March 9 could not be received for tbe purpose of changing tbe terms of tbe contract, as evidenced bj tbe check and deposit slip of March 6. Here tbe question of practice is presented for consideration. As the issues stood at this time, tbe petition was on a deposit. Tbe answer was a general denial,, and under this answer tbe defendant could not prove discharge by payment or otherwise; but under tbe answer as finally filed, while it was perhaps not very artificially drawn, tbe issue of payment was presented; and tbe question was not merely whether a deposit bad been made on March 6, but it was whether tbe bank bad dis: charged tbe liability thereby incurred by collecting the' check and paying its proceeds to Russell & Holmes, in pursuance of plaintiff's direction. It is at once apparent that tbe instructions given confined tbe jury to tbe sole' question as to whether tbe deposit bad been made, and directed them that tbe transaction of March 9 could not be received to avoid tbe effect of any evidence as to the-transaction of March 6. They did not submit tbe issues. presented by tbe amended answer. Tbe real question is, therefore, whether tbe defendant can now avail itself of its amended answer. In Grimison v. Russell, 11 Neb., 469, tbe original pleadings were lost after trial and before judgment; copies were not substituted and tbe judgment Avas reversed, because tbe court bad no authority to enter-judgment without pleadings whereon to found it. Tbe reason of that case is applicable to this, although perhaps tbe defendant, being tbe party originally at fault,, could not avail itself of tbe error if tbe plaintiff bad been free from fault. But tbe stipulation of record shows that tbe plaintiff consented that tbe defendant might have twenty days to file it's answer \\\"in any manner,\\\" with tbe same effect as if then filed. Tbe proceeding was. highly irregular, and tbe court should have insisted that tbe issues be framed before tbe trial proceeded. By consenting to this course, however, tbe plaintiff bound himself to submit to any answer which might be filed within the time stipulated and allowed by tbe court. This an swer presented issues which had not been submitted to the jury. We think the plaintiff must be held to his stipulation and the case must be considered as if the answer finally filed had been already filed when the instructions were given. It is always well to have issues framed before judgment. This case illustrates the danger of trying a case and proceeding to judgment, and pleading it thereafter.\\nIt is argued that there was a special finding, which in effect determines the merits of the case, independent of the general verdict. The'following is the question propounded to the jury, and its answer: \\\"Was the money in controversy included in the fund of the Tecumseh National Bank, after the amount thereof was entered upon plaintiff's pass-book with Russell & Holmes; if so, at what time?\\\" The answer was as follows: \\\"Yes; March 9,1891.\\\" We have been unable, after a careful examination of the evidence, to find any evidence sustaining this finding.\\nReversed and remanded.\"}"
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+"{\"id\": \"8591850\", \"name\": \"Ruth Spilker, Personal Representative of the Estate of Willard P. Spilker, deceased, et al., appellants, v. City of Lincoln, Nebraska, doing business as Lincoln Water System, et al., appellees\", \"name_abbreviation\": \"Spilker v. City of Lincoln\", \"decision_date\": \"1991-05-24\", \"docket_number\": \"No. 89-189\", \"first_page\": \"188\", \"last_page\": 193, \"citations\": \"238 Neb. 188\", \"volume\": \"238\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T21:11:13.316319+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hastings, C.J., White, Caporale, Shanahan, Grant, and Fahrnbruch, J J., and Colwell, D. J., Retired.\", \"parties\": \"Ruth Spilker, Personal Representative of the Estate of Willard P. Spilker, deceased, et al., appellants, v. City of Lincoln, Nebraska, doing business as Lincoln Water System, et al., appellees.\", \"head_matter\": \"Ruth Spilker, Personal Representative of the Estate of Willard P. Spilker, deceased, et al., appellants, v. City of Lincoln, Nebraska, doing business as Lincoln Water System, et al., appellees.\\n469 N.W.2d 546\\nFiled May 24, 1991.\\nNo. 89-189.\\nGordon D. Ehrlich, of Cobb, Hallinan& Ehrlich, P.C., and, on brief, John V. Hendry and Anne E. Winner, of Bruckner, O\\u2019Gara, Keating, Sievers & Hendry, P.C., for appellants.\\nDonald R. Witt and Michael A. England, of Baylor, Evnen, Curtiss, Grimit & Witt, for appellee Westinghouse Electric Corp.\\nHastings, C.J., White, Caporale, Shanahan, Grant, and Fahrnbruch, J J., and Colwell, D. J., Retired.\", \"word_count\": \"1623\", \"char_count\": \"10148\", \"text\": \"Colwell, D.J., Retired.\\nIn this products liability case, plaintiffs' amended petition was dismissed as to defendant Westinghouse Electric Corporation, upon its sustained demurrer that claimed the suit was barred by the statute of limitations. See Neb. Rev. Stat. \\u00a7 25-224(2) (Reissue 1989). The main issue here is the constitutionality of \\u00a7 25-224, which provides in part:\\n(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.\\n(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.\\nSection 25-224 was originally enacted in 1978. It was amended in 1981 to include a provision (subsection (5)) which relates to injuries caused by exposure to asbestos.\\nThere is no dispute in these essential facts alleged in the amended petition: Defendant City of Lincoln, Nebraska (City), purchased outdoor switchgear equipment from defendant Westinghouse, which equipment was delivered to the City in November 1963, tog\\u00e9ther with blueprints and an instruction book. The switchgear was installed in the City's pumping station no later than March 1964. On October 14, 1986, Willard P. Spilker, a regular employee of plaintiff Colin Electric Motor Service, in Lincoln, Nebraska, pursuant to a request made by the City, was sent to the pumping station to investigate and service a reported short in the electrical wiring of the switchgear. An employee of the City, after having reviewed the instruction book and blueprints, identified the location of the safe repair receptacles in the switchgear, and Spilker, as directed by the employee, inserted testing equipment therein, resulting in a fire caused by a clear error in the instruction book, which improperly designated a live high-voltage energized receptacle as deenergized. The resulting fire caused burns and injuries to Spilker resulting in his death approximately 2 weeks later. Ruth Spilker, as the personal representative of the estate of Spilker, filed her petition alleging product liability injuries and praying for damages.\\nThese basic facts are clear: The City came into possession of the switchgear, blueprints, and the instruction book no later than March 1964, and Spilker was fatally injured more than 22 years later, on October 14, 1986. When Westinghouse's demurrer was sustained and the amended petition was dismissed as to Westinghouse, plaintiffs elected to appeal.\\nThe parties agree that these proceedings are allegations of product liability defined in Neb. Rev. Stat. \\u00a7 25-21,180 (Reissue 1989):\\nAs used in sections 25-224, 25-702, and 25-21,180 to 25-21,182, unless the context otherwise requires: Product liability action shall mean any action brought against a manufacturer, seller, or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging, or labeling of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product.\\nSee, also, Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500 (1981). It is appellants' theory, and they argue without objection, that the blueprints and instruction book are included as items of \\\"labeling\\\" recited in \\u00a7 25-21,180, the same as if they were imprinted upon the switchgear.\\nIn simple terms, these proceedings, and like cases later discussed, present a legal paradox of the general rule that \\\"for each injury sustained the law provides a remedy,\\\" as follows: The City received a switchgear in March 1964, and Spilker's fatal injury on October 14, 1986, was a type of a products liability cause of action, as described in \\u00a7 25-21,180. However, as claimed by Westinghouse and sustained by the trial court, the 10-year statute of limitations, \\u00a7 25-224(2), began to run in favor of Westinghouse in March 1964, when the switchgear was received by the City, see Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985), and any possible remedy for Spilker's death was barred 10 years after March 1964. We have said that a statute of repose is a type of statute of limitations, id., it prevents recovery on stale demands, Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962), and, as to Neb. Rev. Stat. \\u00a7 25-222 (Reissue 1989), its effect is that it may prevent what otherwise might be a cause from ever arising, that is, there may be a wrong for which the law affords no redress, see Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). Recently, we said:\\nThe immunity afforded by a statute of repose is a right which is as valuable to a defendant as the right to recover on a judgment is to a plaintiff; the two are but different sides of the same coin. . . . These are substantive rights recognized by Nebraska law and protected by its Constitution.\\nGivens v. Anchor Packing, 237 Neb. 565, 569, 466 N.W.2d 771, 773-74 (1991).\\nAppellants' seven assigned errors are summarized as follows: Section 25-224(2) is unconstitutional as violating the due process clauses and the equal protection provisions in the U.S. and Nebraska Constitutions and the \\\"access to courts\\\" provision of the Nebraska Constitution, and it was contrary to law and an error to sustain Westinghouse's demurrer and dismiss plaintiffs' amended petition as to Westinghouse.\\nIn making their constitutional challenges, appellants admit that the Legislature is free to create and abolish rights so long as no vested right is disturbed, see Campbell v. City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976), and this power includes imposing reasonable time limitations upon actions. However, they argue that the 10-year period of limitations in \\u00a7 25-224(2) is arbitrary and unreasonably short in time because it fails to take into account the average, useful, and expected life of the broad array of manufactured products. They advocate as reasonable \\u00a7 110 of the Model Uniform Product Liability Act, see 44 Fed. Reg. 62714, 62732 (1979), which would make the 10-year statute of limitations subject to a rebuttable presumption that the harm occurred after the product's \\\"useful safe life\\\" expectancy.\\nA party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional. See State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990). The wisdom, justice, policy, or expediency of a statute is for the Legislature alone. In every constitutional challenge there attaches the presumption that all acts of the Legislature are constitutional, with all reasonable doubts resolved in favor of constitutionality. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).\\nAlthough this court has not directly considered the constitutionality of \\u00a7 25-224(2), other similar statutes of repose, \\u00a7 25-222 and Neb. Rev. Stat. \\u00a7 25-223 (Reissue 1989), have been reviewed. In Colton v. Dewey, supra, a medical malpractice case, this court upheld as constitutional the 10-year statute of repose found in \\u00a7 25-222 against challenges that it constituted special legislation, that it violated the due process clause of the Nebraska Constitution and the equal protection clause of the U.S. Constitution, that it violated the open court provision of the Nebraska Constitution, and that it was an invalid exercise of legislative power. See, also, Smith v. Dewey, 214 Neb. 605, 335 N.W.2d 530 (1983). Later, in Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 (1987), a suit relating to the building industry, the 10-year statutes of repose found in both \\u00a7 25-222 and 25-223 were declared constitutional, citing Colton, supra, and Smith, supra.\\nThe constitutionality of \\u00a7 25-224(2) has been upheld in the following federal cases: Groth v. Sandoz, Inc., 601 F. Supp. 453 (D. Neb. 1984), Brown v. Eli Lilly and Co., 690 F. Supp. 857 (D. Neb. 1988) (holding that the classification made by \\u00a7 25-224(2) was neither unreasonable nor arbitrary), and Peterson v. Fuller Co., 807 F.2d 151 (8th Cir. 1986).\\nPlaintiffs failed to show that the 10-year time limitation in \\u00a7 25-224(2) was either unreasonable or arbitrary. Whatever merit there may be in their claim that the 10-year limitation is unreasonably short may be a matter for legislative consideration.\\nThe relative reasoning and authority previously expressed by this court in Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982), Smith, supra, and Williams, supra, are adopted as controlling in the case at bar. Upon the passing of the 10-year period following March 1964, Westinghouse acquired a substantive vested right protected by statute, and \\u00a7 25-224(2) is constitutional as against all challenges made by plaintiffs.\\nThe order sustaining Westinghouse's demurrer and dismissing plaintiffs' amended petition against Westinghouse was proper. See Pohle v. Nelson, 108 Neb. 220, 187 N.W. 772 (1922).\\nAffirmed.\"}"
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+"{\"id\": \"94223\", \"name\": \"Chicago, Burlington & Quincy Railroad Company v. James E. Philpott et al.\", \"name_abbreviation\": \"Chicago, Burlington & Quincy Railroad v. Philpott\", \"decision_date\": \"1898-10-05\", \"docket_number\": \"No. 8323\", \"first_page\": \"212\", \"last_page\": 217, \"citations\": \"56 Neb. 212\", \"volume\": \"56\", \"reporter\": \"Nebraska Reports\", \"court\": \"Nebraska Supreme Court\", \"jurisdiction\": \"Nebraska\", \"last_updated\": \"2021-08-10T18:08:07.911194+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Chicago, Burlington & Quincy Railroad Company v. James E. Philpott et al.\", \"head_matter\": \"Chicago, Burlington & Quincy Railroad Company v. James E. Philpott et al.\\nFiled October 5, 1898.\\nNo. 8323.\\n1. County Judge: Action on Bond: Limitation. An action on the official bond of a county judge is barred in ten years after the cause of action accrued.\\n3. -: -: Conversion. Tlie failure of a county judg-e, after the expiration of liis official term, to pay over to bis successor \\u25a0 in office, or tbe person entitled thereto, money deposited in condemnation proceeding', is a breach of his official bond; and thereupon a cause of action accrues to the person damag-ed by such breach. Glelland v. McGuniber, 15 Colo. 355, followed.\\n-Error from the district court of Lancaster county. Tried below before Hall, J.\\nAffirmed.\\nThe opinion contains a statement of the case.\\nJ. W. Deioeese and F. E. Bishop, for plaintiff in error:\\nPlaintiff contends that defendant Philpott, by virtue of the statute and his bond, received the condemnation money as an express continuing trust for the benefit of the railroad company, with that duty continuing beyond \\u25a0his term; that as such trustee he could not hold adversely to his cestui que trust until demand and refusal to deliver; that the statute of limitations did not begin to run against this express trust until July 1, 1892; that consequently the defendants have violated their trust obligation, the action is not barred, and they are liable to the plaintiff for the deposit. (King v. Nichols,-16 O. St. 87; Streitz v. Hartman, 26 Neb. 49; Paries v. Sattertlmaite, 132 Ind. 411; Smiley v. Fry, 100 N. Y. 262; Presley v. -Davis, 62 Am. Dec. [S. Car.] 396; Havens v. Ghurch, 62 N. W. Rep. [Mich.] 151; Hayden v. Thompson, 71 Fed. Rep. 69; Alexander v. Overton, 22 Neb. 227; Gutter v. Roberts, 7 Neb. 13; State v. Brand Island & W. O. R. Go., 31 Neb. 209; St. Louis, O. H. \\u00e9 G. R. Go. v. Fowler, 113 Mo. 458.)\\nLamb & Adams and J. E. Philpott, contra:\\nThe action is barred by the statute of limitations. (Merriam'v. Miller, 22 Neb. 218; Glelland v. McGumber, 15 Colo. 355; Blacleshire v. Atchison, T. & S. F. R. Go., 13 Kan. 514; White v. Wabash, S. L. & P. R. Go., 64 la. 281; Owen v. State, 25 Ind. 107.)\", \"word_count\": \"1556\", \"char_count\": \"9035\", \"text\": \"Norval, J.\\nThis suit is upon the official bond of James E. Philpott, as county judge of Lancaster county. The court below sustained a general demurrer to the petition, and dismissed the action. Plaintiff prosecutes error.\\nThe petition alleges, substantially, that plaintiff is a corporation and, by consolidation with the Burlington & Missouri River Railway Company in Nebraska, plaintiff succeeded to all the last named company's rights, privileges, and property on or about January 1, 1880; that the defendant Philpott was elected county judge of Lancaster county for the term commencing in January, 1880, qualified as such officer and gave the bond set out in the petition, with his co-defendants as sureties, which was duly approved, and he took possession of, and occupied, said office for the full term of two years; that in December, 1879, the Burlington & Missouri River Railway Company in Nebraska made application to the predecessor in office of said Philpott for the condemnation of certain real estate in the city of Lincoln for right of way purposes, including lots 14, 15, 16, and 17, in block 70, of said city;, that a commission was appointed to view the premises and assess the damages to be paid by the railroad company, which commission made its report to the defendant Philpott, a:s county judge, April 3,1880, and on the 7th day of the same month the railroad company deposited with him, as such county judge, the sum of $1,000, being the amount of damages so assessed for the appropriation of said lots, for the use and benefit of the owners of the property; that the land owners declined to recognize as legal and valid the said condemnation proceedings, and in September, 1885, they commenced proceedings against said railroad company to recover said lots, which litigation continued in the courts for several years and until in July, 1892, when it was decided that said condemnation proceedings were invalid and that the railroad company obtained thereby no right or title to said lots; that the $1,000 so deposited with Philpott at all times remained in his possession, and has never been turned over to his successor; that in December, 1893, plaintiff demanded of said Philpott said money, yet he refused to comply with said request, but still retains said money, which was received by him in his official capacity, under the statute, in trust for owners of said lots, if they chose to accept the same; and that said Philpott has no right, title, interest, or claim to said money or any portion thereof.\\nThe decision of .the district court was grounded upon the proposition that the action was barred by the statute of limitations, and while other questions are argued in the briefs, the only one necessary for us to consider is whether the statute had run against the cause of action at the time the suit was instituted. By section 9 of the Code of Civil Procedure it is provided: \\\"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued;\\\" and section 14 -of said Code declares: \\\"An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute, can only be brought within ten years.\\\" It is too plain to require discussion that under the foregoing provision an action on the official bond of.a county officer is barred in ten years after the cause of action accrued. It has been so held as to actions upon county treasurer's bond (Merriam v. Miller, 22 Neb. 218; Alexander v. Overton, 22 Neb. 227); and the same rule unquestionably obtains as to suits on the bond of a county judge.\\nThe next inquiry is, when did plaintiff's cause of action accrue? It is argued by counsel for plaintiff that the statute of limitations did not commence to run until the invalidity of the condemnation proceeding was finally adjudicated. We cannot yield assent to the proposition. No appeal was taken by either party from the award of the commissioners selected to assess the damages for the appropriation of the lots, so that if the condemnation \\u2022proceedings were legal, the rights of the parties were fixed and established, and one or the other was entitled to the money deposited not later than the expiration of the time for prosecuting an appeal from the assessment of damages. If the proceedings wk?b without jurisdic tion and void at the inception, it required no determination thereof in collateral actions to entitle the railroad company making the deposit, or its. successor, to recover the same from the county judge. The money, by reason of the invalidity of the proceedings to condemn, always belonged to the depositing corporation and a right of action accrued in its favor on the official bond, and the statute began to run, if not on the deposit of the money with the county judge, at the latest on the failure of -such officer to pay such money, on the termination of his official term, to his successor. The condition of Judge Philpott's bond required him to pay over to the person or officer entitled thereto all money which should come into his hands by virtue of his office, and faithfully account for all the balances or money remaining in his hands at the termination of his office.and deliver the same to his successor or to any other person authorized to receive the same. The failure of Judge Philpott to pay this condemnation money, on the expiration of his official term, to his successor or to this plaintiff was clearly a breach of tire condition of the bond declared on, and plaintiff could have at once, and without demand, maintained an action to recover said money. But'it is said that there is no statutory provision requiring a county judge to turn over to his successor money deposited with him in condemnation proceedings. We do not so construe section-97, chapter 16, Compiled Statutes, the last proviso of which reads: \\\"That either party may-appeal from the decision of the district court to the supreme coui't of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order -of the supreme court.\\\" The fair inference to be drawn from the language quoted is that the condemnation money shall be retained by the county judge, and not by the person who happened to hold that office when the deposit was made, until the right thereto is finally determined in appropriate appellate proceedings. The official term of Judge Philpott expired in Janu ary, 1882, while this suit was not instituted until June 3, 1895, or more than ten years after the accruing of the cause of action. The bar of the statute is complete. (Clelland v. McCumber, 15 Colo. 355, and cases there cited.) The judgment is\\nAffirmed.\"}"
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