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7. —: TO ACTIONS OF PUBLIO 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 ....


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—: An individual who is specially injured by a common or public
nuisance may maintain a suit to have the same abated......


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: 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-


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. ....

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-: 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..



Power of Attorney.


1. ALLEGATA ET PROBATA. 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.... 10

: 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 filling thereof, to answer a supple-
mental bill. Orr v. Orr ......



-: A decree, entered before that time had elapsed, without the
defendant's consent, and before he had plead to the supplemental bill,



6. APPEALS Q. UNDER Town site Act are not governed by the act sub-

sequently passed regulating appeals in justices' courts. They are suf-
ficient is taken orally on the date of the mayor's decision and note in
his docket. Newcomb v. Boulware..


6. 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 ....


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....


e. 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-
iure 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



-: 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


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7 : 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-


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

wat such unnecessary instruction mislead the jury in its considera-
son of the facts of the case, the judgment will be reversed. Meredith
. Kennard..


-: If an erroneous charge be given on an abstract proposi-
tion, or on a point not in the case, and the verdict is supported
by proof in the cause, the judgment will not be disturbed....


TO JURY: Unsupported by evidence. It is error for the judge to instruct the jury that they will not find for a party a certain sum claimed by him, unless the claim therefor has been assigned to him, when there is no evidence whatever of any assignment. Holmes v. Boydston .....


-: Exceptions to charge. If the charge of the court to the jury
contain more than one proposition, and any portion of it be
correct, each specific point deemed erroneous must be pointed
out, and separately excepted to. A general exception will
be unavailing. McReady v. Rogers .


To make exceptions to the charge of the court to the jury available to the party excepting, the exception must be reduced to writing, together with so much of the charge as is necessary to explain it. Monroe v. Elburt


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f. —: Bill must be signed in term. If the bill of exceptions be

not reduced to writing and tendered during the term at which
the trial is had, it will be disregarded....

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The affidavit for the continuance of a cause, to procure the evidence of a co-defendant, is fatally defective, if it does not state the testimony which the affiant expects will be given by the absent party. Jameson v. Butler ....




-: Overruling motion for. Whether the refusal to grant a

continuance can be assigned for error : quere ? .....


0. DEPOSITION a. CERTIFICATE. A certificate to depositions, showing

that the witnesses were sworn to testify the truth, the whole truth,
and nothing but the truth, without naming the cause or matter in
or about which they were sworn, and showing the other facts pre-
scribed by the statutes, is sufficient .....



—: Depositions taken in a cause instituted by one plaintiff
with whom others are afterwards joined, may be read in evi.
dence, if applicable to the case, after the amendment as to
parties. Holmes v. Boydston



It is perfectly proper when a jury returns

into court and requests further instructions, for the judge, in the
presence of the parties or their counsel, to repeat what he has
already said, or add whatever is proper in the case, which will aid
them in reaching a conclusion. Homan v Laboo...



: Presumptions of correctness. If the record does not show
that it contains all the testimony, it will be presumed that
there was evidence which would justify a charge of the court,
although it does not appear at large


-: It is not error for the court to decline to give a request
for instructions to the jury, in the words of the request, if the
substance thereof is given in terms as favorable to the party.
Jameson v. Butler


12. NEW TRIAL a: Assault and battery. In an action for assault and bat-

tery, a new trial will not be granted on account of the smallness of
damages awarded by the verdict. Shoff v. Wells

.... 168

: Error. If it be granted and another trial takes place, at
which larger damages are awarded by the jury, all proceed-
ings after the first verdict will be set aside, and judgment be
ordered on that verdict


: Motion for new trial. Errors in the admission or refusal
of testimony on the trial, and in giving or refusing instructions
to the jury, will be considered as waived, unless complaint
thereof be made in the motion for a new trial. M. P. Railway
Co. v. McCartney


18. RECORDS a. The attention of counsel is called to the necessity

of seeing to it, that proper orders are entered in the records of the
District Court, and that full transcripts thereof are brought to the
Supreme Court. Orr v. Seaton......

.... 105

-: Time to answer. When, to a defendant in default for
want of answer, the time is given which is fixed by statute,
he has to the third Monday following, to answer, and no longer id

-: Objecting to service. A defendant who has answered,
although his answer has been stricken from the files, and who
has applied to the court for leave to answer over, has appeared
to the action, and cannot object to the form of the process

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: Opening a default. Whether a default shall be opened,
is a question addressed to the discretion of the court. The
Supreme Court will not interfere with its exercise, unless it
is oppressive

: Paper not rightly in record. A deposition used upon a hearing in the District Court, but not included nor referred to in the bill of exceptions, will, on motion in this court, be stricken out of the transcript. Nebraska City v. Baker ...... 180

f.: Records for Supreme Court. The court reflects upon the

habit of inserting in the transcripts of the proceedings in the
District Court, papers filed therein upon which no question is
made, because the same unnecessarily incumber and burden
the records of the Supreme Court. Morgan v. Larsh ....... 361

: Objections to testimony must be stated at the time the

offered, or they will be disregarded in this court



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14. SUMMONS A. Appearance to summons in error. An attorney of record

in a cause in the District Court, may, when the cause is removed into the Supreme Court, enter therein the voluntary appearance of his clients, without the issue or service of summons in error. McDonald v. Penniston ........


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-: Records in Supreme Court. Transcripts of records of proceedings had in the District Court, when filed in the Supreme Court for the purpose of reviewing the 'action appearing thereby, must show when and where the court was held, its term, and the names of the judge and other officers present, and be duly authenticated by its clerk


: Endorsement of Summons. No other judgment can be rendered than that, notice of which is endorsed on the sumWatson v. McCartney..



-: If a summons, issued in an action of such a character as
does not require an endorsement, be actually endorsed, the
notice so given must fully and truthfully inform the defend-
ant of the extent and nature of the claim alleged against him


: Amendment of endorsement. The endorsement of the summons giving the defendant notice of the nature and extent of the plaintiff's claim, cannot be amended unless the defendant appear in the action....


: Service of summons on return day. A service of summons made on the return day thereof is sufficient to require the defendant to appear to the action, and is effectual to support a judgment by default if he fail to appear. Aumock v. Jamison 48?

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: Service of summons on agent of a corporation. An agent invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent,

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