Holmes v. Columbia Nat. Bank.

remanded to the district court with directions to ascertain the value of the ten acres of land last above described and to enter a decree quieting plaintiff's title to the southeast quarter of the southeast quarter of the northeast quarter of section 32, township 10, range 7, upon the payment of sums above specified.

It is further ordered that in case the plaintiff does not file his election to make payment as above provided within the thirty days allowed him therefor, that then and in that case the decree of the district court be and the same shall stand affirmed.

REVERSED UPON CONDITIONS.

NOTE. The records do not show the filing by the plaintiff of an election to make the payments specified in the above opinion and judgment. The case was pending on motion for rehearing until April 21, 1904, when a rehearing was denied. April 22, 1904, a mandate was sent down to the district court which asserts the affirmance by this court of the judgment of the court below.-REPORTER.

JOSEPH F. PARKINS v. THE MISSOURI PACIFIC RAILWAY COMPANY.

NOTE. December 21, 1904, an opinion on second rehearing was filed, by SEDGWICK, J., BARNES, J., dissenting, in the case of Parkins v. Missouri Pacific Railway Co., reported ante, pages 1 and 13. In this opinion the former judgment of reversal is adhered to. The syllabus Is as follows: "Instructions must be consistent with each other, and if upon a fair construction of all the instructions given in a case they require that the plaintiff prove substantive facts that are not necessary to a recovery, such instructions are erroneous." This opinion, with the dissenting opinion, will be reported in the official reports and may be found in 101 N. W. Rep., 1013.-REPORTER

INDEX.

ABANDONMENT. See HOMESTEAD, 1. RECEIVERS, 3.

ACCOUNT. See APPEAL AND ERROR, 21.

ACCOUNT, ACTION ON.

Evidence Sufficient. Evidence examined, and held sufficient to

support the verdict and judgment.

v. Barnes...

ACCOUNT BOOKS. See EVIDENCE, 2.

ACCOUNTING. See PARTITION, 1, 3.

Cozad Irrigation Co.

418

ADEQUATE REMEDY AT LAW. See EQUITY. INJUNCTION, 3, 4.

MANDAMUS, 1.

ADVERSE POSSESSION.

See EASEMENTS, 1. EJECTMENT, 1, 2.

FORCIBLE ENTRY AND DETAINER, 2. LIMITATION OF ACTIONS,
1. QUIETING TITLE, 1.

1. Boundaries: MISTAKE AS TO: INSTRUCTIONS. It is not neces-
sary, in telling the jury that a holding under a mistake as
to the true boundary may be adverse, to set forth all the
necessary elements of adverse possession. Williams v.
Shepherdson

608

2. Boundaries: MISTAKE: INCLOSURE. When one by mistake
enters upon and takes possession of the land of another,
claiming it as his own to a definite and certain boundary,
and continues in the open, notorious and exclusive pos-
session thereof under such claim, for ten years or more, he
acquires title thereto by adverse possession although the
land was not inclosed. Brownfield v. Bleekman......... 443
3. Elements: TACKING: INSTRUCTIONS. It is not necessary
to restate all the elements of adverse possession in telling
the jury that the period of possession of defendant may be
tacked to that of his grantors to make up the statutory
time. Williams v. Shepherdson....

4. Knowledge of Owner: INSTRUCTIONS:

EJECTMENT. An in-

608

struction that requires defendant's possession, in order to
be adverse, to be such as "will bring to the knowledge of the
real owner the fact that the one in possession is claiming
ownership" held properly refused. Williams v. Shepherdson, 608
ADVICE OF COUNSEL. See MALICIOUS PROSECUTION, 6, 7.

AFFIDAVITS. See APPEAL AND ERROR, 36. ATTACHMENT, 8, 9, 13,
14. NEW TRIAL, 3. REPLEVIN, 1, 5.

ALIENATION. See HOMESTEAD, 2.

AMENDMENTS. See PLEADING, 1, 2, 7, 8. REPLEVIN, 6.

ANIMALS. See REPLEVIN, 2.

Damage By: PLEADING:

TAXATION OF DOGS: STATUTES. In
an action based on the provisions of section 18, article 1 of
chapter 4 of the Compiled Statutes [Annotated Statutes,
section 3219], against a county to recover damages alleged
to have been sustained by reason of the loss of sheep killed
by dogs, the plaintiff must allege that the county board, by
resolution spread at large upon the records of its proceed-
ings, imposed the proper tax, and provided the manner and
conditions of payment to persons making claims against the
fund created thereby. McCullough v. Colfax County....... 543
APPEAL AND ERROR. See CONTEMPT. CONTRACTS, 1. COURTS,
1-3. EVIDENCE, 11. EXCEPTIONS, BILL OF ISSUES, 1, 2. Jus
TICES OF THE PEACE, 1. MORTGAGES, 11. SPERSEDEAS.
TRIAL, 23, 24.

1. Assignments as to Motion for New Trial: PLEADING. A
judgment will not be reversed for errors which are required
to be assigned on a motion for a new trial, unless it is
alleged in the petition in error and shown by the record
that the court erred in overruling such motion. Core Bros.
& Co. v. Omaha Coal, Coke and Lime Co.....

... 412

PLEADING:

2. Assignments as to Motion for New Trial:
PRACTICE. Where defendant challenges the court's atten-
tion to such defect in the petition in error, in his brief, and
orally on the hearing, the above rule will be strictly ad-
hered to. Coxe Bros. & Co. v. Omaha Coal, Coke and Lime
Co.

3. Assignments: EVIDENCE. Assignments of error on account
of receiving and rejecting evidence, although too general to
require consideration, examined, and held not to contain
reversible error. Parkins v. Missouri P. R. Co................

4. Assignments: EXCEPTIONS, BILL OF, AND RULING ON MOTION
FOR NEW TRIAL WANTING. A plaintiff who has been de-
feated upon a trial in the court below by a general finding
of issues of fact, upon petition, answer and reply, in favor
of his adversary, and who prosecutes error without having
preserved the evidence in a bill of exceptions, and without
having obtained a ruling upon a motion for a new trial, can
assign but one ground of error in this court, viz: that the
answer does not state facts constituting a defense to the
petition. Bemis v. McCloud.....

412

1

723

5. Assignments: FRIVOLOUS. Assignments of error held with-
out merit and frivolous. Moores v. Jones....

319

available to the party complaining, must be specifically as-
signed in the petition in error. Bosserman v. Larson...... 107
7. Assignments: NEW TRIAL: OVERRULING MOTION FOR. Er-
rors required to be assigned in a motion for a new trial, will
be deemed waived, unless the ruling on such motion is as-
signed as error in this court. Cole v. Adams County..
Moores v. Jones......

Spence v. Apley..

.......

8. Assignments: NOT IN BRIEFS. An assignment of error not
noticed in the briefs will be deemed to have been waived.
Bemis v. McCloud....

9. Assignments: SPECIFIC. Alleged errors in the giving of
instructions must be specifically pointed out, or they cannot
be considered by the supreme court. Cox v. Crow......
10. Assignments: Too GENERAL. An assignment of error that
the judgment is contrary to law is too vague and indefinite
to present any question for consideration in the supreme
court. Bosserman v. Larson......

226

319

358

729

434

... 107

11. Attachment: EVIDENCE SUFFICIENT. The judgment or order
of a district court on a motion to dissolve an attachment
will not be reversed if sustained by sufficient competent
evidence. Werner v. Linsenmeyer.....

12. Briefs: STATEMENTS Too GENERAL. A general statement in
a brief that the court erred in sustaining objections to a
certain line of testimony, without indicating where the
rulings complained of are to be found in the record, or the
nature of the evidence offered, the objections made, and the
rulings thereon, is not sufficient to call for any examination
of the matter by this court. Merrill v. Garver....

.....

372

715

.. 830
13. Complaint First Made on Appeal: STATUTES. Where is-
sues have been made and trial had on the merits, the de-
feated party should not be heard to complain for the first
time on appeal in this court, that the form of action should
have been by petition under section 602 of the Code instead
of by petition in equity. MacCall v. Looney...
14. Complaint First Time on Appeal: JUDGMENT. An objec-
tion to a petition to set aside a default judgment which
alleges that the judgment complained of was rendered
October 6th, at the October, 1900, term of court, and that no
knowledge of it reached the defendant till May following, on
the ground that it does not show that the October term had
adjourned at that time, will not be entertained when raised
for the first time on appeal in this court. MacCall v.
Looney

715

APPEAL AND ERROR-Continued.

15. Evidence Conflicting. Where, in an action before a justice of the peace, the evidence was conflicting and it can not be said that his judgment was clearly wrong, the order of the district court, on a proceeding in error, sustaining such judgment, will be affirmed. Bullard v. Laughlin........... 697 16. Evidence Conflicting: CRIMINAL LAW. Where the evidence on which a verdict is based, in a misdemeanor case, is conflicting, and it appears that the cause was submitted to the jury under proper instructions, such verdict will not be set aside unless we can say that it is clearly wrong. Everson v. State.....

.... 109

17. Evidence Conflicting: QUIETING TITLE. A finding on conflicting evidence will be adhered to on appeal, unless clearly wrong. Faulkner v. Sims, Neb., 94 N. W. Rep., 113. Burton v. O'Connor.....

554

18. Evidence on Appeal. On appeal to this court, as distinguished from proceedings in error, evidence excluded by the trial court will not be considered. Guthrie v. Guthrie...... 365 19. Evidence: RULINGS ON ADMISSION. Rulings of the trial court in the admission and exclusion of testimony examined, and held, not error. Fidelity Mutual Fire Ins. Co. v. Lowe.....

20. Evidence Sufficient: PRESUMPTIONS. In a trial to a court, where the finding is based upon sufficient competent proof, it will be presumed that immaterial evidence was disregarded. Dewey v. Allgire, 37 Neb., 6. Arabian Horse Co. v. Bivens....

159

823

21. Evidence Supports Findings: ACCOUNT. Where, in an action for an accounting, questions of fact only are presented and the trial court's findings are supported by the evidence, the decree will not be disturbed. Haslach v. Wolf.......... 306 22. Exceptions, Bill of: AUTHENTICATION. A document accompanying a transcript will be disregarded unless authenticated by the certificate of the clerk of the district court. Village of Holstein v. Klein..........

23. Exceptions, Bill of: CONTENTS: EVIDENCE. Unless there is a bill of exceptions containing all the evidence, this court will not review the findings of fact in the lower court. Emery v. Hanna.............

833

..... 491 24. Exceptions, Bill of: FAILURE TO FILE: PLEADING. When, after issue joined, there has been a trial and the record recites that the plaintiff introduced all his evidence, which the trial court found to be insufficient and dismissed the action, the judgment will not be reviewed in this court in the absence of a bill of exceptions, although it also recites