1. The power to hear and determine a matter in controversy, is jurisdic- ton. It is coram judice, whenever a case is presented which brings the power into action. It may be exercised according to the rules of the common law, or by special direction, or informally. Smiley v. Sampson
2. - OVER CONSTITUTIONAL QUESTIONS. The courts have no jurisdic- tion of matters which are committed to the discretion of the legisla- ture. Bradshaw v. The City of Omaha.
Nor may they declare an act unconstitutional, because the legislature in passing it, was influenced by unworthy motives....... id
4. —: Municipal corporations. The legislature may increase or restrict the powers, extend or contract the limits, of cities, and the courts cannot interfere.
6. ―: Municipal taxes. The courts have jurisdiction to inquire and determine whether lands brought by the legislature within the limits of a city, are justly subjected to taxes levied by it for its support; because that is a question of property and private right..
See PRACTICE 3, 6, b.
PRACTICE IN CRIMINAL CASES 3.
PRE-EMPTIONS 2, 3. SCHOOL BOARD 2.
1. -: TENANT HOLDING OVER. A tenant for one year, holding over after the expiration of his term, cannot disclaim his relation, nor question his landlord's title. Mattis v. Robinson ....
―: Assailing his landlord's title. Before he can be permitted to assail his landlord's title, he must surrender his possession, acquired under the lease
-: Eviction or its equivalent necessary. Wherever there is a para- mount title in a third person, who has a right thereby to the possession, and it can be done without any collusion or bad faith to the lessor, the tenant, in order to prevent being expelled by the holder of that title, to whom otherwise he would be rendering him- self liable as a trespasser, may yield the possession and attorn to or take from such holder of the title, a new lease, or he may abandon the possession. In neither case will he be liable to the first lessor for rent. In the former case, he may resist his first lessor's claim to the possession, by the new right thereby acquired ....
-: Notice to his landlord. In all cases, he should notify his land- lord of his action.
· Pierce v. Brown, 24 Vt., 165, examined and overruled.....
6. ―: Buying in outstanding title. A tenant buying in an outstanding title for the purpose of protecting his possession, shall have what he has paid and legal interest. and no more.
1. The bringing into this State, by the thief, of goods stolen in another State, is not larceny. The People v. Loughridge
1. An agreement for a loan of money was made in New York, and the money advanced there: a note dated in Nebraska, payable in New York, and a mortgage on lands in Nebraska, were given to secure the debt held, that the circumstance that the note was made and dated in Nebraska, was immaterial; the note was but and incident to the agreement. The contract is to be governed by the laws of New York. Sands v. Smith.....
1. "A mandamus will not be allowed upon the hearing of the application for which the applicant's title to an office, in virtue whereof he claims the writ, is drawn in question. Anderson v. Colson....
1. A party who furnishes material for the building of a house, but does not follow the directions of the mechanics' lien law, has no lien on the premises entitling him to redeem a mortgage made thereon, nor does he acquire any interest in the premises by reason of his recovery of judgment against the mortgagor after foreclosure and sale. Eaton v. Bender
1. There can be no merger unless a greater and a less estate meet in the same person holding in the same right. Miller v. Finn...... ............ 255
2. Nor where intervening rights or estates interfere, nor where the inte- rests of the party in whom the estates meet so require.......
8. Nor where the intention to keep the estates distinct may be inferred or has been expressed.....
See CONVEYANCES 1. CORPORATIONS 1, 2.
FORECLOSURE 1. FRAUD 2.
1. The maker of a note which is in terms payable to a bank, cannot, in an action brought by it thereon, raise the question of its incorporation. He is estopped to deny it. The Platte Valley Bank v. Harding...... 461
1. NEGLECT. The law will protect an individual who, in the prosecution of a right, has done all that the law requires him to do, but fails to attain his right, by reason of the neglect or misconduct of a public officer. Smiley v. Sampson..
2. LIABILITY. A Probate Judge issuing an attachment and a sheriff exe- cuting it, are not liable for the taking and conversion of property thereon if they have acted in good faith. Morgan v. Larsh..... 861 See ATTACHMENT 2. BONDS 1, 2. MANDAMUS 1.
1. TO SUITS BROUGHT ON CHOSES IN ACTION. The assignee of a chose in action is the proper and the only party who can maintain a suit thereon. Mills v. Murry......
-: Bringing them in by notice. An affidavit for publication of notice of pendency of suit alleged that the action was brought for the fore- closure of a mortgage, and that the defendants were non-residents of the State, without alleging that they could not be served with process in the State; the notice was published four weeks next after June 16, 1860, and required the answer on the 30th July, 1860; held, the notice was sufficient, and a decree rendered thereon concluded the defendant. Miller v. Finn....
8. -: Appearance. A party whose agent, not an attorney of the court, has entered his appearance, and who has answered a cross-bill filed in the cause against him and the plaintiff in the original bill, affirms the appearance and becomes a party in the principal suit.....
-: Partners. The omission of one partner as a co-defendant in an action in respect of partnership property, can, at the common law, only be taken advantage of by plea in abatement duly verified.......
5. -: Impleading parties in a bill as "Pomeroy & Benton," and pub- lishing notice of pendency of the suit addressed in that form, is suffi- cient to bring before the court the members of a firm doing dusiness under the style of Pomeroy, Benton & Co., composed of Pomeroy, Benton & Chase.....
-: Incumbrancers not made parties to foreclosure bill are not affected by decree... 255
: TO ACTIONS OF PUBLIC CONCERN. A common or public nuisance, if committed without lawful authority, can be remedied by a public prosecution instituted by the proper public officer, on behalf of the people. Kittle v. Fremont....
—: An individual who is specially injured by a common or public nuisancé may maintain a suit to have the same abated......
But a private person cannot maintain an action to abate a pub- lic nuisance unless he can aver and prove some special injury to him- self.......
10. LEGISLATIVE ACT APPROVING THE alleged nuisance. It is competent and proper for the legislature to validate the action of town authori- ties, in modifying the location of public parks, and such provisions operate to waive the ground of complaint of the public................
11. -: In an action brought upon a judgment against a principal debtor, in behalf of a surety who has paid off and satisfied the same, and taken an assignment thereof, the original plaintiffs are not proper parties. Eaton v. Lambert..
The plaintiff in a bill in chancery cannot go to the answer for facts which by his bill, he did not put in issue. Miller v. Finn......
- A petition is not the proper remedy to avoid a decree of fore- closure after it has been enforced by sale and deed made by the mas- ter, although it may have been void for want of effectual service of process. Clark v. Hotailing....
-: A petition in error must be filed with the transcript of the record of the District Court, and before the summons in error is issued, in order to give the Supreme Court jurisdiction. City v. Middleton....
· Time to answer supplemental bill. Under the practice in Chan- cery, before the equity and common law jurisdiction were blended by the amendments of the Code of Civil Procedure, a defendant had until the fifth Monday after notice of the filing thereof, to answer a supple- mental bill. Orr v. Orr.......
5. -: A decree, entered before that time had elapsed, without the defendant's consent, and before he had plead to the supplemental bill, reversed.....
6. APPEALS a. Under town sitE ACT are not governed by the act sub- sequently passed regulating appeals in justices' courts. They are suf- ficient if taken orally on the date of the mayor's decision and note in his docket. Newcomb v. Boulware. ....
b. APPEAL OR PETITION IN ERROR to final order. An order to be final and subject to review in an appellate court upon appeal or petition in error, must dispose of the whole merits of the case, and leave nothing for the further determination of the court. It must affect a substantial right and determine the action. Smith v. Sahler..... 810
c. An order or decree which leaves the law or equity of the case, or some material question connected with the merits of the controversy, for future determination, is interlocutory, and is not subject to review in any appellate court on appeal or peti- tion in error...
d. An order dissolving an injunction, when the same is an incident of the action, and the substantial rights of the parties remain undetermined, is interlocutory and not appealable........... id
♦. Power of court to enlarge the time within which an appeal shall be perfected. Courts do not possess any power to enlarge the time within which the transcript of the record of the District Court shall be filed in the Supreme Court, in order to perfect an appeal from a decree of the former court, when the legisla- ture has limited the time within which it shall be filed, and pro- vided as a consequence of failure to do so, that the decree shall stand and be proceeded on, as if no appeal had been taken. Verges v. Roush ... 113
f. - If notice of appeal from a judgment be served upon the successful party and the clerk not until thirty days have expired from the rendition of the judgment, they are ineffectual to give the Supreme Court jurisdiction. Redgrave v. Baptist Church.......
If a suit be brought against three parties jointly and severally liable, two of whom only are served, it is not error to enter judgment against those served and omit therefrom the other. Bennett v. Town- send....
CHARGE a. When the court gives to the jury instructions not required nor called for by any evidence adduced in the cause, and it appears
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