Meyers v. German Fire Ins. Co.

ment introduced in evidence by plaintiff. Schmidt v. Wil· liamsburgh City Fire Ins. Co., 95 Neb. 43.

The failure of the insurance company to return the consideration of the policy before standing upon its terms does not constitute a waiver. The company does not fail in its promise by insisting on the conditions of its policy: "Not having broken its contract, it has a right to retain the consideration." Schmidt v. Williamsburgh City Fire Ins. Co., supra (p. 51). See, also, Farmers Mutual Ins. Co. v. Home Fire Ins. Co., 54 Neb. 740; Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488; Farmers Mutual Ins. Co. v. Phoenix Ins. Co., 65 Neb. 14.

The "pro rata clause" in the policy, providing that concurrent insurers of the property shall share the loss, if any, applies only in case the defendant's policies are valid. It applies where the provision against additional insurance has been complied with by making a written indorsement on the policy consenting to such additional insurance, or where the breach of the provision has been waived. It does not constitute a waiver.

An examination of the evidence does not show that the defendant at any time waived the forfeiture provision of the policy. On the contrary, after learning of the forfeiture it at all times treated the policy as not in force.

For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for further proceedings.

Accord and Satisfaction.

In an action against two joint tort-feasors for personal inju-
ries, one of them may settle with plaintiff, and, if settle-
ment is not in full, the action may proceed against the
other. Tankersley v. Lincoln Traction Co.

Adultery. See CRIMINAL LAW, 18.

Testimony of complaining witness held corroborated by compe-
tent testimony as to commission of the offense of adultery.
Reinhardt v. State

....

Adverse Possession. See REMAINDERS.

Agriculture.

Where six persons only join in the organization of an agricul-
tural society, it is not entitled to an appropriation from the
the county general fund under sec. 6, Rev. St. 1913. Holt
County Fair Ass'n. v. Holt County

Aliens.

1. Under art. II of the treaty of 1848 with Austria-Hungary
(9 U. S. St. at Large, p. 945) allowing alien heirs two years
to dispose of lands, "which term may be reasonably pro-
longed," the question as to reasonableness of prolongation
is for the courts. Fischer v. Sklenar

2. Where circumstances make it reasonable that aliens should
have more than the two years to dispose of inherited land, a
reasonble extension of time should be allowed. Fischer v.
Sklenar.

....

3. Extension of eight months after expiration of two years
granted aliens to dispose of inherited land held reasonable.
Fischer v. Sklenar

Appeal and Error. See CRIMINAL LAW. COSTS, 2. DIVORCE, 5. Ex-
ECUTORS AND ADMINISTRATORS. JUDGMENT, 1. MUNICIPAL CORPO-
RATIONS, 1, 2. TRIAL. VENUE.

578

667

1

553

553

553

1. After a new trial was granted in a proceeding to establish
heirship, the state asked leave to file a pleading, which re-
quest was denied, and judgment was entered for petitioner,
held that an appeal brought within six months from final
judgment was in time. In re Estate of Keller
.... 115
2. Where, in suit against trustee, petition showed right to re-
lief in some form, decree for plaintiff will not be reversed be
cause he mistook his remedy and prayed for a money judg
ment. Holmes v. Doll

.....

... 156

Appeal and Error-Continued.

3. The refusal to permit defendant to file an amended answer
adding a counterclaim or set-off will not be disturbed un-
less abuse of discretion is shown. Holmes v. Doll ........ 156
4. A "case stated," as contemplated by supreme court rule 14
(94 Neb. XIII) for the advancement of cases, must include
an agreed statement of the facts upon which the questions
of law arise. Bank of Benson v. Gordon

.....

5. A "case stated" must be allowed and certified by the trial
judge, filed with the clerk of the district court, and must be
printed and bound with appellant's brief. Bank of Benson
v. Gordon ...

....

6. When the judgment of a district court is reversed, a mandate
is the legal mode of communicating the judgment and di-
rections of the supreme court to such district court. Hal-
lowell v. Buffalo County

162

162

.: 250

7. Parties desiring to effect a cross-appeal must file a brief
of assignments of error within the time limited for appeal-
ing. Western Brick & Supply Co. v. Mid-West Construction
Co.

8. On appeal all presumptions are in favor of the judgment of
the district court, and if the record does not affirmatively
show error the judgment will ordinarily be affirmed. Fer-
ber v. Leise

....

254

374

9. That plaintiff has recovered a judgment in a foreign juris-
diction upon a domestic judgment will not require dismis-
sal of an appeal from the original judgment, or from a judg-
ment in a suit to vacate the original judgment. Janous v.
Columbus State Bank,
393

10. The supreme court has jurisdiction to entertain a plea in
abatement by reason of matters happening after appeal has
been perfected. Irwin v. Jetter Brewing Co.

409

578

11. Statement of plaintiff's counsel at trial in an action against
two joint tort-feasors that one had settled held prejudicial
to the other. Tankersley v. Lincoln Traction Co.
12. If the motion for a new trial does not challenge the atten-
tion of the trial court to the inadequacy of the verdict, the
point will not be considered on appeal. Fairchild v. Wilson 608
13. A judgment will not be reversed for a technical error which

does not affect substantial rights. Pruss v. Schultz ...... 672
14. An appeal may be dismissed, where during its pendency and
without fault of appellee an event occurs preventing the
granting of effectual relief to appellant, which event may
be shown by extrinsic evidence. McCarter v. Lavery

......

748

Appeal and Error-Continued.

15. An appeal from dismissal of a suit to oust a county commis-
sioner from office may be dismissed, where his term of office
expired pending the appeal, and he did not delay the hear-
ing. McCarter v. Lavery

...

748

771

16. On appeal in equity, the supreme court in considering con-
flicting parol evidence will take into account the fact that
the trial court observed the witnesses and must have ac-
cepted one of two versions of the facts. Greiner v. Lin-
coln.
17. In an action on a supersedeas bond, defendants held not lia-
ble for rentals and interest, where the superseded judgment
did not require appellant to pay them. Waldo v. Lockard.. 797
18. The giving of erroneous instructions is not cause for re-
versal, if they are more favorable to complainant than he is
entitled to under the law. Webb v. Omaha & S. I, R. Co... 596
19. Instructions as to right to recover, and having no bearing on
the quantum of damages, cannot be complained of by plain-
tiff, where the verdict was unsatisfactory only in amount.
Fairchild v. Wilson

....

20. Where instructions have been given on request of a party,
he cannot complain of them on appeal. Estelle v. Daily
News Publishing Co.

21. Where instructions state the law applicable to the issues,
a party cannot predicate error on the failure to instruct on
a particular point, in absence of a request therefor. Bailey
v. Hurtt

.....

22. Where the evidence in a case tried to the court is conflicting,
and there is competent evidence to sustain the finding, the
judgment will not be set aside, unless clearly wrong. Mil-
ler v. Morris & Co.

.....

23. A finding on conflicting evidence will not be set aside, un-
less clearly wrong. Ryba v. Swift & Co.

24. Where the evidence as to permanent injury to plaintiff's
spine was conflicting, held defendant was not prejudiced
by the court's permitting plaintiff to bare his body so that
his surgeon could better describe the nature of his injury.
Wright v. Omaha & C. B. Street R. Co.

25. Where conflicting evidence sustains the verdict, and the
case is not shown to have been improperly tried, the verdict
will not be set aside. Jackson v. Omaha & C. B. Street R.
Co.
26. Findings of the trial court have the force of a verdict, and
where the evidence is conflicting will not be disturbed, un-
less clearly wrong. Farmers State Bank v. Butler

• ....

608

610

823

169

216

292

456

635