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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.\"}"

neb/12562497.json

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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.\"}"

neb/1594663.json

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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.\"}"

neb/1673488.json

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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.\"}"

neb/2353241.json

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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.\"}"

neb/2368455.json

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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.\"}"

neb/2372327.json

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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.\"}"

neb/2377194.json

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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.\"}"

neb/2380661.json

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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.\"}"

neb/238991.json

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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.\"}"

neb/2462282.json

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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.\"}"

neb/2560651.json

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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.\"}"

neb/2575173.json

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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.\"}"

neb/2588819.json

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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.\"}"

neb/2594167.json

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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.\"}"

neb/2596052.json

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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.\"}"

neb/2604166.json

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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.\"}"

neb/2626324.json

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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.\"}"

neb/2630996.json

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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.\"}"

neb/2651306.json

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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.\"}"

neb/2665811.json

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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.\"}"

neb/267689.json

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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.\"}"

neb/2725601.json

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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.\"}"

neb/2775949.json

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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.\"}"

neb/2826308.json

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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.\"}"

neb/2828149.json

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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.\"}"

neb/2833979.json

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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.\"}"

neb/2834837.json

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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.\"}"

neb/2836535.json

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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.\"}"

neb/2836949.json

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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.\"}"

neb/2851086.json

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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.\"}"

neb/2862938.json

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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.\"}"

neb/2960197.json

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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.\"}"

neb/2977780.json

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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.\"}"

neb/3006095.json

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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.\"}"

neb/4033568.json

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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.\"}"

neb/4400575.json

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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.\"}"

neb/4402440.json

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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.\"}"

neb/4404630.json

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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.\"}"

neb/4405421.json

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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.\"}"

neb/4405972.json

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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.\"}"

neb/4417329.json

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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.\"}"

neb/4423409.json

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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.\"}"

neb/4423442.json

@@ -0,0 +1 @@
+"{\"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.\"}"

neb/4427628.json

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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.\"}"