Instructions-concluded.

At

lead the jury in considering the facts of the case, the
judgment must be reversed. Kilpatrick v. Richardson..... 731
11. A defendant pleaded that the note upon which suit was
brought was given for a flock of sheep which were war-
ranted to be sound; that the sheep were diseased, by
reason of which the warranty was broken, and the con-
sideration failed. There was no allegation of fraud.
the request of the defendant the court gave consecutively
three instructions, each of which contained the following
language: "That a failure of consideration, breach of
warranty, or fraud constitutes a valid defense." Held,
That the instructions were erroneous and prejudicial.
Farmers & Merchants Bank of Ainsworth v. Upham........... 417
Insurance. See COSTS, 1. GARNISHMENT, 2.

1. In an action upon an insurance policy to recover damages
caused by fire to insured household furniture and wearing
apparel in actual use, it was not error to instruct the jury
that of the property destroyed they should, if possible,
find the fair market value, otherwise that they should find
the fair value from the evidence, and that such value was
not what a junk-shop or second-hand dealer would give
for them or what they would bring under extraordinary
circumstances or at a forced sale. Sun Fire Office v. Ayerst, 184
2. A policy of insurance provided that upon the failure of
the insured to pay the premium note therein described in
full at maturity, such policy should cease to be in force
and continue null and void while said note remained un-
paid. Said note not having been paid at maturity the in-
surance company accepted as a credit thereon an amount
of money largely in excess of the premium earned, and
left the note with its local agent for collection. Subse-
quently, and before the premium so paid had been earned
and before the note had been paid in full, the property in-
sured was destroyed by fire. Held, That the policy was
voidable only at the election of the insurance company,
and that by receiving and retaining the part payment after
default and retaining the note for collection, it waived
the right to insist upon a forfeiture thereof. Phenix Ins.
Co. v. Dungan.........................

Intoxicating Liquors. See LIQUORS. MANDAMUS, 2.
Journal Entries. See REVIEW, 18.

Judgments. See COUNTIES, 1. FINAL ORDER. RES ADJU-
DICATA. REVIVOR.

1▲ determination of priorities under section 946 of the

468

Judgments-continued.

Code constitutes an adjudication which cannot be collat-
erally attacked. State v. Duncan........

...... 631
2. The limitation of one year in which to revive an action on
motion does not apply to a proceeding to revive a judg-
ment. Boyd v. Furnas.......

3. Will not be set aside on account of the admission of im-
material testimony in cases tried to a court where testi-
mony, properly admitted, justifies the finding. Dewey v.
Allgire..........

4. Where none of the special proceedings provided by the
Code is available an action in equity will lie to enjo`n
against the enforecment of a judgment taken by default
in violation of a promise by the plaintiff to dismiss the
action, Cadwallader v. McClay........

387

5. A judgment or decree procured by fraud is not void in the
sense that it can be assailed in a strictly collateral proceed-
ing, but is voidable merely at the election of the party
defrauded thereby. Smithson v. Smithson....................... 536
6. A judgment will be set aside where it was taken after a
settlement between the parties, and contrary to plaintiff's
promise to dismiss the action, the defendant having relied
upon the promise and so suffered default. Cadwallader v.
McClay.......

7. The county court, acting within its special jurisdiction,

359

has power to vacate judgments and final orders during
the term at which they were rendered. State v. Duncan... 631
8. In cases within the jurisdiction of a justice of the peace a
county judge possesses only the powers of a justice, and
can only vacate judgments and final orders in cases where
justices are expressly authorized so to do. Id................ 632
9. A county court acting within its special jurisdiction may
vacate its judgments or final orders for irregularity in ob-
taining the same upon proceedings had in pursuance of
sections 602 to 610, inclusive, of the Code. Id.

10. An order vacating such judgment or final order is not void
for want of a finding that the applicant had a valid defense
or cause of action. The want of such finding renders the
proceedings at most only irregular or erroneous, and they
are not on that account open to collateral attack. Id.
11. A court of equity will not vacate a judgment at law merely
on the ground that the officer's return, that he had served
the summons on the defendant to the judgment by leav
ing a copy of the process at his usual place of residence,

Judgments-concluded.

was false.
It must also be averred and proved that the
defendant to the judgment has a meritorious defense to the

same. Janes v. Howell.......................

Judicial Acts. See BOARD OF PUBLIC LANDS AND BUILD-
INGS. MANDAMUS, 1. OFFICE AND OFFICERS.

Judicial Notice. See EVIDENCE, 1.

Judicial Sales. See CORPORATIONS, 1, 3.

Jurisdiction. See COURTS. CRIMINAL LAW, 8. GARNISH-
MENT, 2, 4. REVIEW, 12. REVIVOR, 1.

Jury. See NEW TRIAL, 3. TRIAL, 1.

1. A defendant in an equity suit is not entitled, as a matter
of right, to a jury for the trial of a counter-claim for
damages which he has voluntarily pleaded in the case.
Morrissey v. Broomal.............................

320

.... 766

2. Where the examination of a juror raises a doubt as to his
being an elector of the county where the action is brought,
there is no error in sustaining a challenge for cause.
Omaha & R. V. R. Co. v. Cook................

3. Where a fair and impartial jury is secured, error cannot
be predicated on the rejection of persons who may have
been qualified. Some discretion must be allowed to the
trial court in the selection of jurors. Id.

4. In a personal damage case against a railway a juror stated
in his examination on his voir dire, in substance, that he
had an elevator on the line of railway and was engaged in
the business of buying and shipping grain over the railroad;
that he had received favors from the railway company and
desired to retain its favorable consideration; that he had
no personal feeling in the matter and could render a fair
and impartial verdict. Held, That a challenge for cause
was properly sustained. Id............

Justices of the Peace. See ATTACHMENT, 4. VENUE.

Laborers' Liens. See MECHANICS' LIENS.

Laborers' Wages. See RES ADJUDICATA, 2.

Laches. See APPEAL, 8.

Land Contracts. See MORTGAGES, 5.

Landlord and Tenant.

A tenant had been in possession of a tract of land for several
years under a lease from the owner. He claimed posses-
sion for the season of 1889, also, and planted a portion of

436

435

Landlord and Tenant-concluded.

the land in corn. After the corn was planted, another
claimed to be the lessee for the same period and entitled
to possession of the same land under a written lease from
the owner, and brought a forcible entry and detainer suit,
which terminated in a judgment against the defendant,
the former tenant. Pending the litigation the defendant
had cultivated the corn. After it was ready to harvest the
plaintiff took possession of the land under the judgment,
and refused to surrender the corn to the defendant. Held,
That the defendant in the former suit may replevy the
corn, and a verdict in his favor in a replevin suit should
be upheld. McKean v. Smoyer........

Legislative Appropriations. See IMPEACHMENT, 14.

STATUTES, 9.

1. The original vouchers approved by the commissioner gen-
eral are to be presented to the auditor so that he may see
that the claim is one for which an appropriation has been
made. State v. Moore..............

694

....... 507

2. Under the provisions of sec. 9, art. 9, of the constitution,
all claims upon the state treasury are to be examined and
adjusted by the auditor and approved by the secretary of
state before any warrant for the same shall be drawn.
This applies to all appropriations, specific as well as gen-
eral. Id.

3. Under house roll No. 207, passed and approved April 8,
1893, making appropriation for current expenses of the
state government, nothing was appropriated for the pay-
ment of indebtedness owing by the state for "arrest and
return of fugitives, or for officers' fees and mileage for con-
veying prisoners to and from the penitentiary," unless
such indebtedness was incurred after March 31, 1893. Id., 229

Legislature. See IMPEACHMENt, 4.

Letters of Administration. See EVIDENCE, 4.

Liens. See ANIMALS, 3. ESTOPPEL, 2. MECHANICS' LIENS.
MORTGAGES, 5.

A contractor paid for materials purchased by a subcontractor,
annulled his contract with the latter, and sued him upon
his bond for the amount thus paid. Under the facts dis-
cussed in the opinion, held, that the contractor had no lien
upon the unused material left in the building by the sub-
contractor, and was not entitled to the possession of the
said material. Walther v. Knutzen......

420-

Limitation of Actions. See DIVORCE, 5. MECHANICS'
LIENS, 10. STATUTE OF LIMITATIONS.

Liquors.

1. In considering whether or not a license to sell liquor should
be granted, a village board acts in a judicial capacity, and
its refusal to hear competent testimony relevant to objec-
tions made in remonstrance against the granting of such
license, presents a sufficient reason for the reversal of an
order granting a license. Hollembaek v. Drake............... 681

2. After a village board has jurisdiction of the subject-matter
of an application to sell liquors, and the time has fully
expired for filing a remonstrance, and one has been filed,
the petitioners and remonstrators may consent to a hearing
at as early a time as they choose, and in such case cannot
be heard to allege that such hearing was premature. Id... 680
3. Due notice having been published for the full time fixed
by the statute, precedent to the hearing of an application
for a license to sell liquors, the village board, before which
such application is pending, has jurisdiction of the sub-
ject-matter, and in case a remonstrance has been filed
within the statutory time, should fix an hour of some
subsequent day for hearing the application and remon-
strance. Id.

4. An appeal by a remonstrant from an order of a village
board under the provisions of sec. 4, ch. 50, Comp. Stats.,
in order to have the effect of a stay and prevent the issuing
of a license to the applicant, must be taken immediately
and perfected as soon as a transcript can with reasona-
ble diligence be procured and filed in the district court.
State v. Village of Elwood.................

5. The remonstrant immediately gave notice of an appeal,
knowing that the district court for the county would con-
vene pursuant to adjournment on the 18th day of the same
month, and that the next session thereof would be in Sep-
tember following. A transcript was demanded for the
first time on the 19th, after the final adjournment of the
district court, and filed on the 20th. It appears that a
transcript could with reasonable diligence have been pro-
cured and filed within twenty-four hours from the time
the license was allowed. Held, That the appeal was not
taken in time to have the effect of a stay, and a peremp-
tory mandamus should not be allowed to compel the village
board to revoke and cancel a license issued on the 18th
after the final adjournment of the district court. ld.
Loan Agents.

See USURY, 2.

473