Omaha Daily Bee Newspaper, October 14, 1901, Page 4

NEWS O F T HE OMAHA DAILY B INTEREST FROM : MONDAY OCTOBER 14 1001, 0 ~ IOWA. _ COUNCIL BLUFFS. [— = MINOR MENTION, Davis sells drogs. Btockert sells carpecs and rugs. Metz beer at Neumayer's hotel. Gas fixtures and globes. Bixby & Son. ‘Wollman, sclentific optictan, 40s Broadway, The city councll will meet tonight in ad- Journed regular session. Miss Eibert of Des Moines Is the guest B Mre. Horace Everett George Crane, jr. has gone Nebraska on a hunting trip. Missourl ouk body wood, $6.50 cord. Weich, 2 N. Main et. Tel. 125, | For Rent—Modern 7-room residence; 69 Eighth street, corner Sixth avenue. dding presents given special attention. €. E. Alexander & Co., %33 Broadway. It pays for itself—Cole’s Hot Bl Enr sale by Cole-Brelsford Hardwas 8. Main Colonel and Mrs. J. J. Stealman expect | to lvave this week for Colorado, where they | Wil resid i H. H. Van Brunt has gone to New York | City to attend the annual convention of | o manufacturers Mrs, Drayton W. Bushnell has gone to Chicago to visit her mother, Mrs. Hynd- | shaw, and to attend the wedding of a reia- ve. to western : Wm. tor, Co., 8. J. P. Copner. wife of Congressman | ner of the Tenth lowa district, s the guest of Mrs, H. 1. Van Brunt Hluft street | Chambers' dancing academy, Royal Ar- num hall. Tuesdays and Fridays, adults, i p. m.; children, 4 p. m. Assemblies for adults Fridays, 8:390 p. m The Ladies' Ald soclety of the Congrega- tlonal church will meet Tuesday afterncon at 2 o'clock at the home of Mrs, Charles Fitch, 1124 FFourth avenue, W. W. Chaprgan of Denver, who is of Mre, C. 8. Lefferts of Flrst avenue, left yesterday for a short visit With friends In Plattsmouth The police have been asked to assi=t in the search for Ed Elliott, & voung man who | 15 missing from his home, 624 South Twenty- fourth street, South Omaha The Unjversity club has taken up the matter of employers providing seats for | their clerks In stores and In circulatng petition among the other clubs of the cly. | Colonel Charles R. Hannan, president of Ahe First National bank, iett laxt evenng for Milwaukee, to attend the bankers' con- vention. Willlam Stuil will leave for there In_letters recelved by relatives Hon. W, E. Bainbirdge, assistant secretary of the legation at Vekin, China, says he and Mrs. | Balnbridge may return’ to Councll Bluffs | Bome time next spring { Mr. and Mrs. Harry V. Burkley of Omaha, | who have been visiting Mrs. Burkley arents, Mr. and Mrs. 0. ‘ | eventh street, left yesterda | Boston, New York und Bu | A. Anderson has gone to Buffalo, where | he wiil join his father, J, P. Anderson, who recently went to New York on a pleasur rip, and together they will spend two weeks | at_the Pan-American exposition before ro- turning home. Farmers In the vieinity of the pesthouse | have notified the police that the house has | been occupled for several nights. It Is mupposed that the place has been taken | possession of by tramps who were unaware of the nature of the place. Miss Ethel Thomas of this city has re- slgned her position as Instructor al the Inatitution for the Feeble Minded at Glen- wood and will leave today for Pueblo, Colo.,, where she has accepted a position In & private institution of a similar character. Mrs. W. P. Davies, 2108 Farnam strect, ( Omaha, was in this city yesterday and gave a description to the police of & gold watch, valued at $100, and watch chaln, valued at $26. which had been stolen from her. A visit ‘to the local pawn shops wae made, but no trace of the tolen articles found Noah Mattingley and Miss Etola Otto were married Baturday evening at the home of the bride's parents, Mr. and Mrs, . A Otto, 101 Benton street, Rev. W. B. Barnes, | pastor of the First Prexbyterian church, officiating. The voung pepple took their relatives by surprise. Mr. and Mrs. Matiing- ley will be ut home at 318 Bouth First street after October | N. Y. Plumbing Ce . telephone 230. Gravel roofing. A. H. Read, 541 Broadway. Pleads for Man Who Tried to Ki CEDAR FALLS, I, Oct. 13.—(Special.)— John Penesh was sentenced In the county court of Benton to two years in prison for attempting to kill Miss Agnes Jirsa last #pring, because she would not marry him. The girl pleaded with the court for clem- ency for the man, saying she loved him and would marry him when he was released. ) Davis sells paiot. Davis selle glass. ‘Hll‘l‘!’l | & Terminal 10 OPPOSE GREAT ®ESTERY Froperty Owners in Third Ward Rosent the Railread's Coming. CLAIM TO FEAR DAMAG: TO VALUES Meeting for Tuesday Night Devise n Way to Protect Any Encroachment Upon Their Interests. to Persistent rumors that the Great West- ern proposes to cnter Council Bluffs in the vicinity of Third street have aroused the property owners in the Third ward, who fear that their property interests will be injured. A meeting to discuss the matter has been called for Tuesday night at § o'clock In the county court house, to lay plans for the best means to protect their interests. There Is a rumor that the Great Western will try to lnduce the city council to va- cate Ninth avenue from Third to Four- teenth street in order to provide it a right of way through the city to connect with the terminal company's tracks. This is doubted by those who profess to know and they ay that the Great Western intends to buy every foot of its right of way through the eity. That persons acting for the Great West- ern are buying property in this section of the city is not questioned and numeroins optious on lots have been secured recently by a firm of real estate dealers in this city. The purchases of property supposed o be for the Great Western indicate that it will ater the city limits at the Graves' farm east of the paper mill and then go through the Gordon property at Sixteenth and | Graham avenues and from that point swing around to Third street and run on the west side of this street to Eleventh avenue. The lot recently sold by the city at Third street and Eleventh avenue is sald to have been bought for the raflroad. From Third and Eleventh avenue the line will run diagonally through the Rick, Splers, Oureler and old Hanthorn property to Fourth street and Ninth avenue, then run along the south side of Ninth avenue to Fourteenth street, where connection will be made with the tracks of the Omaha Bridge railroad. The recent pur- chase of considerable property along Ninth avenue {s sald to have been for the Great Western. Owners whose prope will not be bought by (he road fear that the proximity of the railroad tracks will injure the value of their holdings. GIVES HOPE TO CUNNINGHAM Supreme Court's Decision in Tax Fer- ret ¢ Affects Council Blufts, The supreme court handed down a de- clsion Saturday in a tax ferret case from Jasper county which has a direct hearing on the suit brought In the district court here to have declared null and vold the contract entered futo by the supervisors of Pottawattamle county with F. M. Cunning- ham. The ruling of the supreme court holds that the tax ferret law Is not only constitutional, but s retroactive, but penalties may not be collected for any time prior to 1807, when the law took effect, though the enforcement of the collection of the taxes themselves may he made The court holds that the law does not impair contract obligations or vested rights If it be applied retroactively. This poin: has a direct bearing on the case at bar in this country and is adverse to the conten- tion of Frank Shinn, the nominal plaintiff in the suit brought to have Cunningham's contract invalidated. The county board entered Into a contract with Cunningham to ferret out property subject to taxation which bad either been omitted or withheld from assessment, he to recelve a sum equal to 60 per cent of all money recovered to the county through his work. Subsequently to the entering of the contract the legisla- Don't rub—don't scratch, When the eyes itch, smart, burn or he, there s something needed be- sides a rub You can't remove eye defects with a rub of the finger, You very often treftation. You may even convey germs of dis- ease from doorlatch or car seat, Local eye troubles are, in 88 per cent of ‘all cases, caused by eye defects which may be corrected with proper lenses—our kind. HERMAN M. LEFFERT GRADUATE OPTICIAN, 238 BROADWAY, 0? Glenn A Council Bluffs. | i v e | for those wh) know what's 923} Woodward’s Ganymede Chocolates end QOpera Bon Bons Mace By } ause increased local enue, John 6. Woodward & Co. “The Candy Men." Council Blufts lowa. Iowa Steam Dye Works 8304 Broadway. Make your oid clothes look like new. Clesning, Dyelog Repairiag. LEWIS CUTLER Funeral Direct «1 s PRARE Sriebet Fle2s . FARM LOANS 6Ji% ted In KEastern BT, St o OB HPHOLSTERING jxisss 'MORGAN & KLEIW'S, o #iin l ture passed an amendment to the law re- stricting the remuneration of tax ferrets to 15 per cent of the money recovered and declaring null and vold all contracts made by counties unless the tax ferret within thirty days from the passage of the law signified In writing his acceptance of the 15 per cent remuneration. This Cunningham refused to do, contending that the passage of the act could not Invalldate or impair his already existing contract. Shinn in his sult attacked the contract on, the grounds that Cunningham had failed to accept the 15 per cent and that the 50 per cent basis of remuneration was vold and of no ac- count. The decision of the supreme court In the case from Jasper county sustains Cunningham and declares that the law as amended by the legislature could not im- PaIr then existing contracts. At the hearing before Judge Wheeler he held that the county's contract with Cun- ningham could not be Impaired by subse- quent legislation and In this he is sus- tained by the supreme court in {ts ruling Saturday. Judge Wheeler, however, also beld that the law was not retroactive, but on this point the supreme court reverses him, Shion also attacked the contract on the grounds that the remuneration agreed upon between the county and Cunningham was oxcessive and contrary to public poliey. This point was not passed upon In the cass from Jasper county by the supreme court, In the Jasper county case the supreme court also holds that the mere fact that the taxes were not assessed on the omitted property does not defeat the law, for the obligation to the county is not a new one. The subsequent listing of the omlitted prop- erty Is merely the correction of an error. The court further holds that the burden of proof must rest on the county The decision of the supreme court is re- garded here as sustaining Cunningham's contract with the county béard and that he will be able to collect his 50 per cent re- muneration on all money recovered Into the county treasury unless when the Shinn sult is tried before the supreme court it can be knocked out on the question of the re- muneration being excessive and contrary to public palicy. Death of Curtis A, Haye Curtls A. Hayes, aged 24 years, died Sun- day morning, at his home, 368 North First t, of a complication of diseases. after of several months. He wi known in this city, haviog grown up here trom childhood. 'He but recently returned Cut Prices on Millinery PENNELL, MILLINERY, 41 Broadway, Councll Bluffs. from a trip to England, where he held a position of trust with a large American musical firm. He leaves his mother. two brothers, Clark E. and William. both of this city, and three sisters. Mrs. W. E Dawson of this city, Mrs, Max Goldsmith of Omaha and Miss Vera Hayes. The funeral will be today at 4 p. m. from the residence, Rev, W & Barnes of the First Presbyterian church officlating, with lnter- ment at Walnut Hill. Congressman Smith's Campaigning Congressman Walter 1. Smith arrived home yesterday morning from a ten days' campalgn tour of the state, speaking under the appointment of the republican state central committee. He spoke Saturday evening in Denison. He reports well at- tended meetings wherever he spoke. From now until election day Congre: man Smith will devote practically all of his time to the Ninth district and will begin this evening at Elliott, in Montgomery county, for which place he will leave this morning. At the solicitation of Senator Dolliver, Mr. Smith will speak at Fort Dodge the evening hefore election. This fs the only engagement he now has outside of his own distriet. Thursday he will speak at Viola Center, Friday at Kimballton and Saturday at Griswold. Congressman Smith was invited to take part on the stump in the Nebraska and Ohlo campalgns. but he declined to leave his own state this year. 0DD FELLOWS’ GRAND LODGE| pares (o Entertain Fifteen red Delegntes and Other Visitors. Creston P Hun, CRESTON, Ia, Oct. 13—~ (Special.)--Cres- ton this week will entertain the grand lodge, Independent Order of Odd Fellows, of Towa. Fifteen hundred visitors and dele- gates are expected. The Orphans’ home question will come up and the election of officers will elicit the usual interest. As early us Saturday evening some of the ad- vance guard of the grand officers arrived J. Jasper Jones, grand master, is here, as is Mrs. Alice Babbitt of Webster City, state president of the Rebekah assembly. Cres- ton is putting on its gala attire and the decorations will be the most extensive and expensive ever attempted on a public oc- casion. The New Summit will be grend lodge headquarters, but the sessions of the organizations will be held in the court house aud the Academy hall. Tuesday night Creston canton will give a military ball. Sunday evening Rev. C. E. Schaible, pastor of the Presbyterian church, deliv- ered an address to Odd Fellows and the Rebekahs, Tomorrow night the orders will be given a reception at the Summit. Onawn Man Killed by Boers, ONAWA, lu. Oct. 13.—(Special.)—Word was received here today that Peter Car- michael, a Scotchman, who for some years lived in Ashton township, four miles north of Onawa, had been shot and killed by the Boers In South Africa. He left a wife and four children, who were escorted to the Britlsh frontier and turned over to the British army, entirely destitute. all their property having been destroyed. Mr. Car michael left here ahout twelve years ago for the Orange Free State, taking a lot of implements and machinery, expecting to engage In farming on a large scale. When the war broke out he enlisted as a scout in the English army. Mr. Carmichael had many friends here, being a cousin of John Cleghorn, Mrs. Armstrong and other promi- nent Onawa people. —— MEN'S FASHIONS, A Modern Solomon Draws Conel Consider now the garments that are worn by man, says the Baltimore American Verily, we sit down and make much talk concerning the garb of woman And we shout with a loud volce that she 1t in the brains when it comes to gar- d that she would attire herself in a carpet sack cut on the blas If it were the fashion %o to do. We point the finger of scorn at her if che 18 In style. And we Woman h She must proud men wears. And those she wisheth to wear. And about as hard a time as she hath is etting the money from her husband to uy what she getteth But let us think a few times at the mark which s known as man Verily, he maketh of himeelf a drive some folks to strong drink He changeth the manner of his garb each season, aven as woman. But he doth not make over last season's raiment to meet this season's plans and specifications. Not any. Nay, nay, my won; he hieth tallor 'and saveth unto him: “What is the latest wrinkle in trousers?" And the taflor showeth him that the waat ts half an inch looser and the knee one inch tighter and the foot just about the same. And the price two feet longer. And the coat, us the tallor showeth him, 16 cut_swaybacked, and hath a_bustle ef- fect around the tafls thereof, and the but- tonholes must be so far apart or the man will be out of style. And necessarily dead to the world. And man patteth himself in the garments when they are done. And he putteth upon the top of his head a hat which hath a rim like unto the flange of un opened oveter can, and the crown thereof hath the appearance of Als- couraged pancake Tor his feet he gettoth shoes that are cut low In the ankle and wide in the toe and high in the he nd he garbeth his feet alko with socks that can be heard a mile oft on u still morning. Which also have open-work and drop- stitches and other millinery effects. Also he weareth a shirt which hath the complexion of a fire alarm and the beauty of a pled rainbow. Now, when he hath inserted himself into this collection of glad garments he sayeth unto himself: “Surely, | am the warmest proposition that ever ambled adown the macadamized highway. Yea, and he carrieth a cane which looketh ke an overgrown lead pencil. “Verly, t are no other starters in the uman Tice exeopt yours truly. And 1 am glad in my heart that I am oolish about clothing like the women ® her up If she s not. s a hard time of it, truly. ndure the sarcastic remarks of concerning the dresses she sight to unto the not are Verlly, my son, man Is a large and un- callea biuft as (0’ garh He is just as much Lo the gabble when it cometh to a new sult as Is the woman who wanteth two new roses and 10 cents’ worth of lace on last year's bonnet Solomon in all his glory was not arra as man now Is, for he was a wise man; Algo, he had to biy clothes for several hundred wives. Yea, wo must consider that also. Is it not 8o, however, even as it forth in the leaded nonparell? Yoa, it {s s0. Look out of the window and see for thyself. A Serlo Relazation Cleveland Plain Dealer wise old friend told me when | was younger that it would be well for me to drop literary work as a practical occupation and save it for a side relaxation, “And you did “Yes, ‘1 took his advice really satisled with it.” “Why not?"! “Well, I'd like to know how & man can take up literary work as a side relaxaiion when he can't find a solitary publisher or editor to back him up In it." ed is set But I'm not Chicago Post: “Do you know,” sald the gashing malden, I should just love 1o Jrite for the papers, and 1 bélleve T could o it, too." “My dear young woman,' replied the sympathetic editor, “there’s no reason in the world why you shouldn't.”” “Reall she ‘cried delightedly, “None at all,”" he asserted. “Anyvone van write for the papera; Itu o trick at all \'hy that waste basket 1s half-full of stuff that was written for the papers.”’ \ YOUNG FISHIN 10WA RIVERS State Commissioner Makes Annual Fall Distribution of Eass and Pickerel. | BAYOUS SEINED TO GET GOOD SUPPLY Easter Than to Maintain & Hatehery= | Horse Show n Suceess — Improve- At State Inatitutions— Colored Pythinna Eleet. ments (From a Staff Correspondent.) DES MOINES, Oct. 13.—(Spectal.)—Fish Commissioner George !t. Lincoln is en- gaged In stocking the streams of lowa with young fish. Yesterday ie was al Ottumwa, | where he placed a carload of fish in the Des Moines river. A iocal assoclation of sportsmen was formed to see to It that the | fish are protected until they have scat- tered along the river. The fish commis- sloper will this week take a carioad to Perry for placing in the Coon river in the same way. He has calls for about twenty- | | Aive carloads In different parts of the state, | | but cannot supply more than half that | number. The fish are nostly bass and pickerel, but there are all kinds of fish | Some years ago the state had a small fish hatchery at Spirit Lake, but it has been | atetion found that an abundant supply of young fish can be taken every year In the bayous | along the Mississippi river above Sabula | and all the fish distributed to lowa streams | are from this source. Last year, owing to high water, it was almost impossible | to secure any fish, but this year they have been easily taken and (he streams of lowa | | Wil be better stocked with gamy young fish than ever before. Succensful Horse Show. | The success o the Des Moines horse | show this year was such that the promoters | plan for one on a large scale next year. | There will be a deficit approaching $3,000 in the finances of the horee show. due | | largely to the unfavorable weather and ! lack of facilities, and to obviate this it is | | proposed that a coliseum be bullt, so that | the horse shows and similar entertain- | ments can be given indoors. The show | brought to the city the finest lot of horses | | ever seen here and it was well patronized | | by the home people. August Busch of St. | | Louis, who had a number of fine horses here, turned over all his winnings to the Home for the Aged in Des Moines The midway aggregation left this morning The carnival assoctation had to get out an attachment to secure its share of the pro- | ceeds of the midway shows, the owners | protesting that the attendance for the week | had been so poor that they could not afford | to make the division of gate money. State Institntion Improvements. The State Board of Control, in its bien- nial report, now almost completed, will ask the legislature for about $800,000 in ad- dition to the $1,260,000 required fo run the various state institutions. The $500,000 is for permanent improvements and is about | the same as the sum expended in the pres- |ent biennial perfod. The board will rec- ommend the purchase of additional tracts | of 1and at the various state institutions, so | that there will be about 1,200 acres at each one of the four insane hospitals and 900 acres at Glenwood. This will necessitate the purchase of over 3,000 acres at an esti- mated cost of $150,000. It is desired that a number of new bulldings be provided for by the next legisiature. There should be two new cottages at Glenwood, A new cottage at Nitchellville, a building for a polytechnical school at Eldora and a new chapel at Marshalltown for the Soldiers’ Home. A new lLosptal Is just about completed at Glenwood, a power plant has been con- tracted for at Eidora, heat and lightiug plants have been built at several of the state institutions this year and a vast amount of work is being done at Cherokee on the new insane hospital. It is planned by the board to establish a home for epilep- tics, o that those who are at the institu- tlon for Feeblo Minded, the insane hospitals and in the county almshouses can all be placed in a colony and be cared for after the manner of some other states. New Town 1 nted, The bullding of the Des Moines, lowa Falls & Northern railroad is being done from the northern end, commencing at lowa Falls, although the right-of-way was secured through to Des Moines, and grad- ing work has been done all along the line, It is expected that the iron will all be latd before freezing weathor. Thus far two new towns have heen located, both in the west- ern part of Hardin county. Buckeye is the name of a new town located in the town- ship of that name and the sale of lots has already been held. Another new town has been located south of Radcliffe in Concord township and it is called Garden City. It I located in a fertile farming reglon. Colored Pythias’ Oficers, The grand lodge of colored Knights of Pythias, better known as the Knights of Pythias of North and South America, Eu- rope, Asla, Africa, Central America and Australla, In session the past week in Cen- terville, has adjourned to meet next year in July at Burlington. The order was re- ported in a flourishing condition, The fol- lowing I8 a complete list of the oficers elected and Installed at the grand lodge meoting: Grand chancellor, C. L. Wash- ington, Cleveland; vice grand chancellor, C. T. Gooch, Ottumwa; grand prelate, Rev, E. Rosey, Frazier; keeper of records and seals, J. W. Madlay, Burlington; master of exchequer, J. W. Smith, Burlington; mar- shal, A. L. McDowell, Ottumwa; medical register, Dr. A. A. Hinton, Oskaloosa; su- preme representatives, C. T. Gooch and J. E. Burk w The complaint of traveling men and others in regard to the Ineficient service on | the Milwaukee railroad between Marion and Councll Bluffs 1s to be again taken up by the State Railroad commission, An ex- tensive petition to the commissioners slgned by many traveling men and patrons of the road on that section was filed with the commission last winter, but after con- ferences with the rallroad officials the complainants withdrew thelr papers and the commission dropped the matter. At that time an extra accommodation (rain was placed on the road. Now the com- mittee of travellng men In charge of the original complaint have renewed their ef forts and bhave asked the commission to set a date for the hearing on the original complaints or petitions. An additional local passenger train Is wanted in bhoth direc- tions on the line, Accused of Killing Dr. Fallor, re Complaint, The negro taken from here to Newton to be confronted with a charge of murder gave the name Chester Tyler when he arrived in Newton and says that his residence is Des Moines, The sheriff of Jasper county and & nephew of the murdered Dr. Frailor fook the man to Newton. He strongly protests innocence and the nature of the evidence against him secured by detectives Is not yet known. Towa War ( The claims of lowa against the general government on account of (he cost olxm. executic equipping the lowa regiments for the Cuban war are still pending to the extent of about $55,000 and Adjutant General Byers | will soon make another (rip to Washington for the purpose of having the War partment pass on all of them before con- gross meets. The department has under consideration about $40,000 of the claims. but has refected claims to the amount of $15,000. Aneffort will bé made by the Towa delegation in congress to have that body act on all the rejected claims and reimburse the state for its outlay. A large part of the lowa claims have been paid and the delay now is caused by failure on the part of the officials to keep a proper accounting. SUPREME COURT SYLLABI. 101186, English against Smith et al. from Douglns. Affirmed. Commissionci’s opinion, division No. 3. Albert, . Unre- ported 1. A obtained judgment in the district Cotirt agninst B corporation. upon which execution was (8§ued and was returned un- satisfied; subsequently B brought the case this court on error and filed a super- sedas bond in the district coirt, which wak duly approved: afterward, on A's mo tion the district court made an order re I|rhv1 additional sureties on the super- cdus bond, and providing that on failure of B to comply with &uch order within ten « the supersedeas bond should be stricken from the files and execution iseue on the judgmgent; the order was not com- plied with, and ‘while the proceedings in error were still pending A brought an nc- tlon to en ce the judgment against the stockholders of R to ine extent of their unpaid stev suoseriptions, which was still pending at’ the time of the trial of the present case. the judgment of the district court was afterward affirmed. In an ac- ton against the surety on the supersedeas bond the foregoing facts held not to con- stitute a defense. 2. Whether the district court had furis- make sald order pending’ pro- error in this court, quaere. 3T n an order for the examina- tion gment debtor. under the pro- visions of section 538 of the Code of Civil Procedure, no affidavit is required; it s sufficlent If {t appear that an executlon is- sued on the judgment has been returned 1nantisfied 10230, People’s Ings Assoclation against from “Adams. Atfirmed pinton, division No. 1 Unreported 1. Where a bullding and loan association, through its agent, by representation consistent with a written contract, e, who i ignorant and wholly tnab read or write English ianguage nter into ch and {t anpears that such party would not have entered fnto the contract had he known or pos. ressed the tract to which he had agre. 1 orally; and it further appears that the agent knew at the time ‘hat such party relled upon his ora. explanation of the terms of the contract, and was thereby in- duced to enter into the same. the court will glve to such contract the constraction Bullding, Loan and Klauber. Commi Sav- rror | understood and agreed to by the person 8o 1 to sign 2 Evidence tain the indu 2 examined finding of th M2 Moore agalnst Omaha Life assocla- ton. Appeal from Lancaster. Afirmed Norval, J. Reported. 1. A finding based upon dence. though conflicting, versed on review 2. Before one having a against another can bill to enforce nd found trial court to sus- sufficlent will not be evi- ro- general claim maintain a creditor's the same he must first have 7‘.l|\|‘- it to judement. Fairbanks against | Welshans, 55 Neb. 362, followed #31 Banford against Lichtenb Appeal from York, AMrmed. Reported 1. A petition fs fatally merely breatse Its averments ‘Yl::'" made more certain 2. Objection that a pleading is indefinl'e In fts ‘allegations should be ratsed in the trial court by a motion to make more defl- nite and cer‘ain | 3. Where a note stipulates for a lawfu | rate of interest from date and a higher and lawful rate of interest after maturi’ both are contract rates and are enforceab's Havemeyer against Paul, 45 Nob. =73 4. Where a mortgage provides that the mortgagor shall keep the bulldings Insured for the benefit of the mortgagee, the latter 1s entitled to be relmbursed for insurance premiums paid by him 5 Possession of a negotiable promissory note fs prima face evidence of ownersh'p. 0655 Hawyer against Parkway Real Estate company. -~ Appeal from Douglas, Affirmed. Norval. . J. Reported. 1. A finding of fact based upon conflic evidence will not be disturbed on unless clearly erroneous. 2 A ground for setting aside & judicial sale {8 unavailing on review unless the same was presented to the court below, 0704, McKell against Merchants' Natlona? bank. Omaha. Error from Douglas. Re- versed and remanded, Commissfoner s opin- fon, division 3. Albert, €. Reported 1.Tn an action against 'a married womand| on a promissory note, wherein she pledges her separate estate for fts payvment, an answer averring, that at the time of fts execution, she was a marrled woman and had no separate estate and owned no prop grty In her own rigit, staten'n good dn ense. ‘ocher ainst Corne Neb. 3] fense. ¢ & rnell, 69 Neb, 315, 2 A contract of suretyship Is binding on a marrled woman. when made with refor. ence to and upon the falth And credls af Lor separate estate, subject to the qualifiention mentioned In the preceding parngraph, 8. The lability of a married woman, on a contract made within the wcope of her statutory capacity to contract, s to be de- termined by the same rules as those appi‘ed 1o, hersons of full capacity 9791, Brennan-Love company against Mo- Intosh. Error from Douglas. 0 comb, 7. Reported Kise MG Hol- Svidence examinad and hel o o Hglnl\t":‘l ';‘e[:.rd‘” of the Jllr’z' Aumalant 2 Verdict held to be not contrary Instructions of the court JETaLY e 1us hen to a question in direct ex: ina- ton an objection 18 Interposed and sne- talned there must be an offer to prove the facte sought to be elicited thereby and a rullng of the trlal court had thereon i order to present to this court for Its eon. sidaration the ruling complained of. 0. 1014, Lewls against Nort from Hall. Reversed and remanded comb, J. Reported. ml.flll,d:yn?l‘rv’rlt-juill:;llll error to . for its finding generally, - tonsy Of, fact on_ purely equitable iamics ralsed by the pleadings In the case. o i, Qlstrict court o tting as ma; n its discretion submit to Jury any disputed question of lllrl.l 904 3.In order to justify a decree of specific performance of a verbal agreement for tha sale of real estate, the acts of part per formance relied oh to ‘escape operation of the statute of frauds, must bo clear)y definitely and satisfactorily shown and 1t myst also appear that such acts wore done o an c A n pursuance of tha . Continued possession b, not such & part performanse ot e vee contract for the purchase of take the case out of the statut Pofsession to have such an effect miis bo clearly shown to refer to and resuit from the contract and not the lease. Bl ler againat Baker, 4 Neb., 326 . The above rula held 1o apply when the alleged vendee was oce i n o, upying the land us 6. Evidence examined and held to by In- :A’Ifllv:;'nl lln nllppl{)rihlhl' finding of Ulv(‘jllpy \d the decree of the trial o red R al court rendered No. 10188, Hrabak et al against Vil of Dodge. Lirror from Dodie " emen *0 sloner's opinlon, department No. Kirkpatrick, C. Reoported " Y Money pald to a villige treasurer to procure the issuance of a license (o neil ntoxicating lquors, as required by the ordinances of sald Village. s received by e treasurer ex-officio, and his he o are lable for his fallure (o acc ount thave: or. 2. A village ger ot al. | Norval, ¢, J. not defective could have ting | review rror Hol- submit a court of is a verbal land as to e of frauds. can malntain against its" defaulting treasurer and hiy bondsmen to recover license moneys col: lected by such treasurer, although the vii- ige In comprised within the limits ‘of a single school district, to which the 3 must ultimately be pald. he manen 3 vhere @ betition states a action, and the answer thereto falls {c atate 'a ‘defense, 1t I8 not error for" (h court to inatruct the jury to find for the plain n the amouni for ch the s platnufe in which the suit (eo. 1020 rom Custer. o ported i % An_alleged error occurring during the' triai of 'a case ‘which has not heen called to the attention of the trial court in the motion for a new trial cannot be reviewod n ihix court on proceedings in error. 2 When different defenses are plead of which Is inconsistent with the and by an Instruction one sistent defenses Is eliminated case, the plalntiff cannot predicate because of the inconsistent pleading 2 When there has heen no offer of of the facts mought to he elicited by a auestion asked In direct examination ob- jected to und objection sustained, the ral- Ing of the court in sustaining the abjection i8 not proper'y presented for review 1. When instructions are excepted to en masse if anyone is found free from or- ror, the exception cannot be sustained No, 028 Troup et wl agaiust Horbach ot a ppeal from Douglas. Judgment Holcomp, I Reported. e an action cause of Green against Tiern Erro Affirmed. Holcoml . the error from proof | hered o, ¢ | ment 1. Defendant's appeal from a final order confirming a sale of real estate made to plaint!ff s under an execu- . a judgment rendered in an equity action, the final order being super seded during the pendency of the appeal The judgment on which the executi was 1ssued having, in the meantime, U e versed; held, thut thereby the title of the | purchaser {0 the property railed and that | an order might properly be entered in this | court quashing the levy and vacating the sale An appeal i& not errors of law only, but brings 1o the appellate court for a trinl de Wilcox ainst Baunders, 4 Neb, 0@, No Oakes against Zeimer. Appeal from ter. 'ormer judgment W mmissioner’s opinton, depart- No. 2 Oldham, C. Reported 1. Tn an application to open a judgment under the provisions of section & of the code of civil procedure u defondant will be heard to question the sufficlency f the petition on which Judgment was rendered CAWTUL answer tlon, means one not sentlal requirement; a meritorfous answer. 3. Held: That in an_application to re. open u jidgment for the foreclosure of a tax lien. un answer denying on information and bellef, the regularity of such len Is evasive and not “‘a full answer” for the reason that such lien is a matter of public record from which defendant could obtain positive knowledge. No. 11901, Barton against Shull Er from Saline. Reversed and remanded. H comb, J., reported 1. Questions raised and decided in former review of the same action held to be and followed us the law of the case 2.1t fs the duty of the jury in all cases to follow the Instructions ven them by the court, whether correct or not, and if | they fall' to do o, the verdict will be deemed to be contrary to law and should be set aside and a new trial ordered 2. When exceptions are taken to the suf- ficlency of sureties in a replevin undertak- | ing within the time piovided by statite and the sherlff or othor officer approving the replevin undertaking fafl to have the suretles justify as ball on arrest, he, unless such = justification s walved, becomes thereby responsible on his official bond for the sufficlency of such sureties, not only when the replevin undertaking i€ approve but alse at the time the defendant in re- plevin fs in a position to enforce o judgment rendered in his favor in the replevin action or proceed aguinst the sureties on the undertaking executed by them i. Evidence oxamined and support the verdict returned by the fury. 5 The verdiet returned by the jury heid to be contrary to the Instructions of tha court and should have been set astde. 6. Where property levied upon under writs of attachments fs taken from an officer by replevin proceedings and after judgment In the attachment case the same property is levied upon and seized by the officer from whom plevined by virtue of an execution issued on the judgment regaining posses-fon of the same property under the executlo undiminished tn value, constitutes a defense Pro tanto in an action on the replevin un- dertaking or in an actlon for taking in- sufficient sureties, on the replevin bond and the fact that the property is subsequently replevined by the plaintifts in the first replevin actlon or thelr assignees wiil not render the defense unavallable | 7. Action of the trial court in granting | A new t 1 on a former hearing ||t-|rl! without ror. No. 11936. Russell against State. Error from Sioux. Reversed and remanded, Nor val, C. I, reported 1. Rulings not argued are deemed waived. | 2 An assignment of error for the over- | ruling of an applieation for a continunancs | is unavalling where such application I& not included in the transeript, 3. It {s not error to overrule an applica- tion of a defendant in a criminal case for a continuance on the ground that a witne is_absent, where the state admits the wit- ness, If ‘present, would tesiify as stated in the affidavit ‘in support of the action, and that the statement of the afMlavit might be used in evidence on the trial 4. To constitite one o competent juryman he must have resided in the six monthg, in the county forty days and In the precinet. township or ward ten daye and be 21 years of age or more. 5 Ordinarily an infant s incapable of changing his domlicile. An emancipatel minor may acquire a domicile or residence of his own. 6. An obf tlon fseued on rect | case | novo. | a remedy to the Lanca h as used In this sec wanting in any es- | o held not to ction that a venireman Is not A qualified juryman 18 unavailing unless specifically rafeed in the trial court 7. An opinfon formed by a juror does not affect his competency, of aftord ground for challenge for cause, unless the opinfon is ungualified as to the merits of the causs and such as will interfere with rendering a fair and impartfal verdict upon the evi- dence under the instructions. Basye against State, 45 Neb., %] 8. In a prosecution for murder It s competent for the county attorney, befo e the introduction of testimony, to' ou'line to the jury the evidence which the state expects to produce to sustain a conviet'an. 9. 1t is competent for a witness to testify to a comparison ma between one of the feet of a horse which the prisoner was known to have ridden on the day of the homlcide and tracks of a horse found near the place where the crime was committed and leading in the direction of the defend- ant's home. to glve his opinion or bellaf as to whether the tracks were made by State, Flelds, = Original « reported 1. 'Where a defendant in an action of foretble entry and detainer had appealsd from A judgment rendered against him | therein, for restitution of the premises {n | which no .Alllwul lies, the entire pro | fngs are nul vold, and man be invoked to require the writ of restitution. , ex rel Beach, Writ allowed. PERFECT Tooth Powder AN ELEGANT TOILET LUXURY. 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