Dodge County v. Kemnitz. for his natural and constitutional rights as possible consistent with the interest and safety of the public. Section 5 of the act provides for a jury trial in all cases where the accused shall plead not guilty to the charge in the court to which he is recognized. There does not appear to have been any plea in this case, the trial, doubtless, proceeded as though there was a plea of not guilty. The section expressly provides that the examination before the justice shall be given in evidence. Now this applies as well to cases brought or prosecuted by county authorities under the provisions of the second section as to those where the prosecution is commenced and carried on by the mother. While it is obvious from the language of the section that one purpose which the legislature had in providing that the examination of the complainant taken down by the justice should be read upon the trial was the protection of the accused against a false accusation made by an untruthful and perjured complainant, who as a rule is vacillating in a repetition of her charge, it was not the only purpose. In the second section the legislature recognized the probability of cases arising where mothers or prospective mothers of illegitimate children, having made complaint under the provisions of the first section, caused the arrest of the father and been examined in respect to the grounds of her complaint, will be induced to abandon such prosecution and fail voluntarily to follow it to the district court and there repeat their statement of the facts upon which it is founded. As we have seen, the law makes it the duty of the county authorities in such case to take up and prosecute such suit. In such case it would doubtless be the duty of such authorities to apply to the court for process to compel such recalcitrant complainant to appear and testify in such case. The examination before the justice would answer the purpose of discrediting her if through perjury her second examination was substantially different from her first, or of adding to the weight of her Dodge County v. Kemnitz. testimony if consistent with it. Whether if in such case the county authorities, after exhausting the process of the court, be unable to procure the testimony of such complainant before the court- she being still alive-the examination taken before the justice would be sufficient evidence to sustain a verdict for the plaintiff, I do not decide; but that it would be admissible in evidence I do not doubt, nor deem it necessary to go beyond the fifth section of the act above referred to for authority therefor. In the case at bar, the complaint having been duly made, the accused arrested and brought before the justice, the complainant examined and her examination taken down by the justice and returned to the district court, and the accused recognized to appear thereat, the complainant was removed by the hand of death. As in any case of the death of a sole party to an action, pendente lite, the action abated. Applying the provisions of sec. 458 of the Civil Code to those of section 2 of the act hereinbefore referred to, the court revived the action in the name of the county as plaintiff. The action being so revived, I see no escape from the conclusion that is trial, and every proceeding in it, must be governed, so far as possible, by the same provisions and rules of law as though it had never abated. Amongst the other provisions governing such trial, I quote from sec. 5: "At the trial of such issue, the examination before the justice shall be given in evidence, and the mother of the bastard child shall be admitted as a competent witness, and her credibility be left to the jury." These provisions apply to the cause of action on the case of the plaintiff; but there is nothing in the language indicating a purpose on the part of its framef to make one part of the clause depend upon the other; in other words, to make the giving in evidence of the examination before the justice depend upon the admitting of the mother of the bastard child as a competent witness. These two instruments of evidence are treated independently of each other, though Dodge County v. Kemnitz. in the same section and clause. In the case at bar one of them was at hand, ready to be presented to the consideration of the jury should it have been withheld from them, because by the act of God the presentation of the other had been rendered impossible. The said section also contains the following clause: "On the trial of the issue the jury shall, in behalf of the man accused, take into consideration any want of credibility in the mother of the bastard child; also any variations in her testimony before the justice and that before the jury," etc. Counsel for defendant in error argued at the bar and in the brief that under this provision the presence and testimony of the plaintiff mother in person before the jury was an indispensable condition to the giving in evidence of the examination taken before the justice. And it cannot be denied that there is the best of authority for this proposition. The chapter of our statutes above referred to was taken almost literally from the statutes of Ohio in force in 1847; in that year the case of Baxter v. Columbia Township, 16 Ohio, 56, was decided by the supreme court of that state. The facts of that case were substantially parallel in all material respects to the case at bar. It was there held that the presence and testimony of the woman upon the trial were indispensable, except in the case of a confession in open court, and that the right given by the statute could not otherwise be secured. While I accord to the above case all the elements of an authority I do not think that it ought to be followed. If it is good law, then the second section of the act is utterly nugatory, and the favorite maxim of the law, "There is no wrong without a remedy," ought to be expunged. Proceedings under the act in question are to some extent special proceeding, yet the general rules of evidence must be held to apply to them. Among these rules one of universal application is that which requires the best evidence attainable to be given of any controverted fact. The cor Irish v. Pheby. ollary of this rule is, that the best evidence of a material fact on trial is always admissible unless rendered inadmissible by positive statute. Under this rule we held in Hair's case, 16 Neb., 601, that "Where a deceased witness testified upon a former trial of the same party for the same offense, being brought face to face with the accused and cross-examined by him, it is competent, upon a subsequent trial, to prove the testimony of such deceased witness," etc. It was also held that such evidence might be proved by the court. reporter; and under the same rule it must be held that the examination of Lena Martin, taken before the justice, she being deceased, was admissible upon the trial in the district court, independent of the provisions of the statute. And yet I desire to put this opinion squarely upon the construction of the statute, upon which I reach the conclusion that the district court erred in rejecting the evidence and in directing a verdict for the defendant. The judgment of the district court is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. THE other judges concur. WILLETT L. IRISH, APPELLANT, v. GEORGE E. PHEBY ET AL., APPELLEES. [FILED DECEMBER 17, 1889.] 1. Pleadings: JUDGMENT ON. The plaintiff, in and by his petition, having alleged the necessary facts to entitle him to the judgment and relief therein demanded, and none of such facts and allegations having been denied, nor any set-off, nor counterclaim, nor other fact or matter alleged, or pleaded in avoidance thereof, held, that the plaintiff was entitled to a judgment on the pleadings. 28 231 38 828 38 877 Irish v. Pheby. 2. The evidence examined, and held, that as a matter of evidence the plaintiff was entitled to a judgment. APPEAL from the district court for Douglas county Tried below before GROFF, J. Winfield S. Strawn, for appellant. Holmes, Wharton & Baird, for Danish Baptist church, cited: Morrison v. Paxton, 17 Neb., 634; Foster v. Dohle, Id., 631. COBB, J. This case was appealed from the district court of Douglas county. The appellant exhibited a bill in the court below against the firm of Pheby & Turner, builders, of Omaha, and H. A. Reichenbach, Nels Christiansen, A. G. Christensen, A. Busch, and S. P. Sorenson, trustees of the Danish Baptist church, of Omaha, unincorporated, and Isaac Williams, Silas S. Hansen, Dow & McIver, partners, etc., and Caroline C. Van Namee, defendants and appellees, alleging that on February 24, 1888, Pheby & Turner contracted with the trustees and building committee of the Danish Baptist. church, of Omaha, to erect for said church and said committee a church building, for religious worship, on lot 3 of block 11 of Parker's addition to the city of Omaha, and to furnish the materials therefor. In pursuance of which they purchased of appellant materials for the construction of the church building amounting to $295.32, which amount has never been paid, and is now due; that at the time of furnishing the materials, the owner of record of said lot was Caroline C. Van Namee, but that the Danish Baptist Church Society, and the trustees thereof, were the true and actual owners by lease or gift, but the precise nature of the title is not of record; that on May 31, 1888, within sixty |