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held the other provisions were a reasonable, merely goes to show that legislative action exercise of the power to make rules. Loser v. was necessary to change the previous law. Board, 92 Mich. 633, 52 N. W. 956. In Iowa | A few years later, in the case of Brooks v. the board of managers of the soldiers' home | Hastings, 192 Pa. 378, 43 Atl. 1075, the Suadopted a rule with reference to pensioners, preme Court of that state held that under a which, among other things, provided that statute giving the board power to adopt rules "any person entering the home having a pen and regulations for the management, governsion exceeding six dollars per month shall | ment, and admission of soldiers to the solsurrender all of such pension in excess of diers' home of that state the board is author$6 per month to the commandant, and, if |ized to make it a condition of admission that the person so surrendering his pension has de- | the applicant shall pay a part of his pension pendent relatives, the money so surrendered to the home, and that the rule did not contrashall be paid to the said relatives by the com vene the constitutional prohibitions against mandant, and, in case such persons shall | taking the property of citizens without due have no dependent relatives, the excess of his | process of law, and without just compensapension over $6 per month shall be credited tion. The action was to recover mouey alto the contingent fund." It was complained ready paid, and to enjoin the defendants that the rules were unauthorized. The stat from discharging the inmate from the home ute of Iowa provided that the board should for refusing to make further payments. The determine the eligibility of applicants for court was of the opinion that the rule was admission to the home, and should have pow not unreasonable in any degree, and said: er to make rules and regulations for its man “If there were no power able to contract with agement and government. The court said, in applicants who draw pensions as to the sursubstance, that courts should not interfere render of some portion of their pensions to with the action of the board unless it is plain the support of the homes, it would follow that ly manifest that the board has abused the such applicants could get all the support of discretion with which it is vested; and fur. the homes, and keep the whole of their penther said: “The support offered by the state, sions also, a result which does not seem fair and given at the home, is gratuity, and not

| either to the state or the taxpayers who probased upon any legal duty or contractual re

vide the means for supporting the homes. lations between the state on the one hand

between the state on the one hand | The contention that the requirement in quesand the inmates of this home on the other.

tion is contrary to that provision of the state Hence it follows that the power which con

and federal Constitutions which prohibits the ferred the benefaction may by itself or its

| taking of property of the citizens without due agents determine what the benefaction shall

process of law, and, without making just be, and the circumstances which must exist

compensation, has no application. This is not in order to entitle one to share the state's

the taking of property in any conceivable bounty. It has said that if you enter the

sense. It is the creation of a condition uphome, and if you have an income, from pen

on which charitable support may be obtained sions or otherwise, which will in part sup

under a contract which is voluntarily made, port you, you shall agree to and shall con

providing for the contribution of something tribute from it towards your support. This

towards the maintenance of the institution deprives the soldier of no rights. When he

which furnished the support. The applicant makes his application for admission to the

is under no obligation to make such a conhome, he knows what the rules require. Ile

tract, but, if he does make it and gets the then understands the conditions under which benefit, he must take it as it is given, and he may be a sharer in the bounty of the state.

keep his contract like all other good citizens The support in the home being a gift upon the

are obliged to do." part of the state, it or its agents may make

It is insisted, however, that, because the the enjoyment of the benefaction dependent Nebraska statutes provide that nothing in the upon any reasonable conditions. No one is act shall prevent any soldier from paying his compelled to accept the conditions and be board or any part thereof if he so desires, come an inmate of the home. One may de- this must be taken as indicating that the cline and remain outside. If, however, he Legislature intended that no money should be sees fit, after knowing of the conditions and taken from an inmate for his support unless agreeing to them, to become an inmate of the voluntarily given, but this we think does not home, he is in duty bound to obey the rules; | follow. There may be old soldiers or sailors and, if he fails or refuses so to do, he is in | who are not "dependent upon public or prino situation to complain if he be honorably vate charities” who desire to be admitted to discharged from the home.” Ball v. Evans, the home for the advantages of companion98 Iowa. 708, 68 N. W. 435. It was said up- ship and comfort thereby provided, and who on the argument of the instant case that at from laudable motives are unwilling to acthe next session of the Iowa Legislature fol | cept as a free gift the bounty of the state, lowing this decision the power to take a por having sufficient property or means to support tion of the pension to aid in defraying the themselves. Apparently it was to provide for expenses of the home was taken away from such cases that this amendment was adoptthe board; but this, if it proves anything, ed. A strict coustruction of the requirements

as to being dependent upon charity night ex- | courts in the cited cases. While we are of clude many an old soldier who would much the opinion that the enactment of the rule rather support himself than be dependent was not such an abuse of discretion as to upon the public, and who might scruple to make it beyond the power of the board to accept the benefits of the home unless he enact, whether or not it is expedient is a matcould in some part defray its' expenses. ter as to which we express no opinion. The

It is also contended that the rule of uni- | body to whom the law has committed the formity in taxation is violated by the order. management of the institution is presumably We think there is no question of taxation in- much better qualified to determine this than volved. The plaintiff does not allege that he the court is, even though it had the right to is a taxpayer and the detailed and specific do so, wbich it has not. If the Legislature allegations in the petition of his inability to believes the rule to be harsh, unnecessary, or support himself and of his dependency upon inexpedient, it can limit the power of the public or private charity of themselves are board as to the right to require the payment enough to negative such an assumption even of any part of the pensions of the inmates for if we were justified in making it.

the support of the institution, and thus conIt is argued that the payment of a portion form the rule in this state to that in the maof a pension to help support the home can- | jority of those states maintaining like innot be made a condition of the right to enter; stitutions. that the requirements for admission are fixed The judgment of the district court is reby the statute, and cannot be changed by the versed, and the cause dismissed. board. It is true that the county board must ascertain and report their finding to the managing board as to certain facts as to residence, disability, and dependency, but this

SHOLD V. VAN TREECK et al. (STATE, finding alone does not confer the right of ad

Intervener). (No. 15,064.) mission. The statute is that the board "shall (Supreme Court of Nebraska. June 26, 1908.) prescribe rules of admission to said home in 1. APPEAL AND ERROR-TIME FOR APPEAL. accordance with the provisions and object of

Where a party seeks to intervene in an ac

tion after the entry of a void judgment, and his this act." The rule complained of is made

petition for intervention is dismissed, the time under the power thus granted, and the rea for appealing to this court dates from the dissoning of the opinions quoted as to the right

missal of his petition, and not from the date

of the void judgment. to impose conditions upon the right to enter

[Ed. Note.-For cases in point, see Cent. Dig. is fully applicable.

vol. 2, Appeal and Error, $8 1899–1904.) The question is asked: Why draw the line

2. SAME-NOTICE OF APPEAL-ALIAS NOTICE. at $12 per month? Is there such a difference

The failure to serve notice of appeal on apbetween the conditions of the pensioner draw | pellees. as required by rule 36 of this court, ing $12 per month and the one drawing $13

does not affect the jurisdiction of this court

over the action, and this court will, for good that one may reasonably be required to con

cause shown, permit the issuance and service of tribute to his own support and the other be an alias notice of appeal. reliered from that burden? But this query [Ed. Note.-For cases in point, see Cent. Dig. might equally well be directed to all cases

vol. 2, Appeal and Error, $8 2173, 2174.] of classification by numbers, and yet they

3. MORTGAGES – FORECLOSURE - COURT IN

CHAMBERS. are generally upheld. The distinction must

The district court is without jurisdiction to necessarily be more or less arbitrary, but it hear and determine at chambers an action to increases in degree as we recede from the foreclose a mortgage. Where the hearing was meeting point. A city of 9.999 inhabitants

had and decree entered at chambers, they are

void. differs infinitesimally in conditions from one

(Syllabus by the Court.) of 10.000, yet a different rule may be applied in its government, and so, in other matters,

Commissioners' Opinon. Department No. the difference of a day in the age of a boy or

1. Appeal from District Court, Dawes Coungirl may make changes in their legal rights

ty; Westover, Judge. and duties of vast importance, and yet the

Action by Nels Shold, administrator of line established is an arbitrary one. The

Charles Jansen, against Peter H. Van Treeck general principle is plain that a pensioner re

and Josephine Van Trecek. The state apceiving more than $12 per month is better

plied for leave to intervene, and, from an able to contribute to his own support than

order denying such application, it appeals. one receiving that sum only, and in a greater

Reversed with directions. ratio as his pension exceeds that sum, which W. T. Thompson, A. W. Crites, and W. B. seems to be taken as the amount of a rea Rose, for appellant intervener. D. B. Jencksonable expenditure for such luxuries and es, for appellee Shold. Allen G. Fisher, for relaxations as each inmate may consider best | appellees Van Treeck and another. adapted to promote his comfort and happiDess.

GOOD, C. In 1903, Charles Jansen, a reUpon the whole matter, we hold the same sident of Dawes county, Neb., departed this views as to the relation between the inmates life, leaving no heirs or next of kin to inherit of the home and the state as expressed by the his estate. He left personal property con

117 Y.W.-8

sisting of notes secured by real estate morto , leged that, through fraud and collusion begages. Nels Shold was duly appointed as tween the administrator and the defendants administrator of his estate in July, 1903. In in the action, a decree of foreclosure had been August, 1905, the administrator commenced entered for a sum greatly less than the two actions in the district court of said coun | amount actually due, and that the judgment ty to foreclose two mortgages given by Peter and decree were void, because the court had H. Van Treeck and Josephine Van Treeck no jurisdiction to hear and enter a decree to said Jansen in his lifetime. Said mort at the rooms of the judge at the hotel, and gages were for $300 and $800 respectively, alleged that the said cause was then pending each dated May 15, 1903, and bearing in and undetermined. On the 30th day of July, terest at the rate of 7 per cent. from 1906, the attorney for the defendants in said date. On motion of the Van Treecks the | foreclosure action appeared as amicus curiæ, two actions were consolidated as one ac and on his motion said sworn statement was tion. They then filed answers to the pe- i stricken from the files, and a hearing was tition in which they admitted all the allega- | had upon the application for intervention, tions of the petition, and as an affirma and the petition was dismissed. From this tive defense alleged that Jansen in his life. | order the state of Nebraska, as intervener, time had agreed with the defendants that, in has appealed. the event of Jansen's death, upon their pay The appellees, who are the plaintiff and ing the debts of the decedent and his fu- the defendants in the original foreclosure acneral expenses, the notes and mortgages were tions, have filed no brief, but have appeared to become the property of the defendants, specially to challenge the jurisdiction of this and that said mortgages should be canceled court. Two objections are urged: First, and surrendered to the defendants, and al-1 that the cause was not docketed in this leged their offer and willingness to perform court within six months after the rendition the conditions agreed upon. Replies were of the judgment in the foreclosure action, filed by the administrator to the answers. Second, that no notice of appeal was served Some time previous to the bringing of these upon appellees within the time prescribed actions the state of Nebraska had appeared by rule 36 of this court. The final order in the probate proceedings in the county dismissing the petition of intervention was court, and filed a petition asking that the made on the 30th day of July, 1906. The property of said Jansen, after paying the transcript of the proceedings was filed in this debts and funeral expenses, should escheat court on the 23d day of January, 1907, and to the state. Shortly after commencing the within six months from the date of the orforeclosure actions, the administrator filed der dismissing the petition of intervention. in the county court a petition for fina! Section 1702, Cobbey's Ann. St. 1907, resettlement as administrator. On the 28th lating to appeals, provides, among other day of March, 1906, the parties to the fore things, that the filing of the transcript, conclosure action, with the assent of the court, taining the judgment, decree, or final order procured a hearing of the said cause at the | sought to be reversed, within six months private rooms of the presiding judge in the after the rendition of such judgment, decree, hotel at which he was staying at Chadron. or final order, shall confer jurisdiction on That hearing resulted in a decree in favor this court. It is clear that the appeal proseof the plaintiff on the two causes of action cuted by the state is from the order disfor $515, being about one-third of the amount missing its petition of intervention, and not due upon the notes and mortgages, unless the from the decree of foreclosure. The appeal defense tendered by the defendants in their was, therefore, perfected within the time, and answers was valid. On the 23d day of May, this court became vested with jurisdiction 1906, and during the same term of court, of the cause. the state of Nebraska filed in the office of The second objection, relating to the givthe clerk of the district court of said county ing of notice of appeal, is based upon a a statement under oath, suggesting that Jan failure to comply with rule 36 of this court. sen had died intestate, a resident of said Rule 36 provides for the issuance of a nocounty, and had left no heirs or next of kin tice of appeal by the clerk of this court upon who could inherit his estate, and that the the filing of the precipe prescribed by rule estate would escheat to and belong to the 33. The precipe was duly filed within the state of Nebraska. On the following day time prescribed, and the clerk issued the the state of Nebraska filed in the said cause notice of appeal, but there is no return showa petition of intervention, setting forth the | ing that the notice was served as required by above facts contained in the sworn state the rule. Upon discovery of this fact, the inent above referred to, and a verred that the state of Nebraska, the appellant, made apdefense set up by the defendants in said plication to this court for leave to have an foreclosure action was fictitious, and con alias notice of appeal issued and served. stituted no ground of defense, and alleged This application was granted, and the nothat the amount due on the notes and mort. tice issued and served. The appellees congages being foreclosed was the sum of $1,100, tend that this was insufficient to confer juwith interest at the rate of 7 per cent. from | risdiction upon this court. It is apparent the 15th day of May, 1903. It was also all that the question of the jurisdiction of this

court is not involved, because the statute | counties and county officers, approved Febconfers jurisdiction upon this court by the ruary 27, 1873 (Gen. St. 1873, c. 13), provides filing of the transcript. The object of the that the county commissioners shall meet rule requiring the issuance and service of a for the transaction of business for the counnotice of appeal was for the convenience of ty at the courthouse in their respective counlitigants, to promptly notify them that the ties, or at the usual place of holding sessions appeal had been lodged in this court, and to of the district court. In Merrick County enable them to prepare for a hearing of the v. Batty, 10 Neb. 177, 4 N. W. 959, this court cause in this court. The failure to issue or held that under said section the county comserve the notice of appeal could not divest missioners were required by law to hold this court of jurisdiction. It might prevent their sessions at the county seat, and that the appealing party from having a hearing they had no authority to enter into a conin this court until he had complied with tract in relation to county business at any the rules and given proper notice to the oth other place. A contract entered into at aner party, and it was within the province of other place than the county seat was held this court, upon a proper showing, to per void. mit an alias notice of appeal to be served. In Conover v. Wright, 3 Neb. (Unof.) 211, The failure of the clerk to send the notice 91 N. W. 545, it was held that a judgment to the sheriff for service, or the failure of | rendered by a district judge at chambers in the sheriff to make service and return, could a mechanic's lien foreclosure was null and not deprive this court of jurisdiction, and void. In Hodgin v. Whitcomb, 51 Neb. 617, would not deprive the appellant of the right | 71 N. W. 314, it was held that a judge of of a hearing in this court upon giving such the district court was without authority in notice as the court prescribed. The objec vacation, and out of term to hear and pass tions to the jurisdiction do not appear to be upon a motion for a new trial, or to render well founded, and should be overruled. a money judgment in an action. It was

This brings us now to the questions pre further held in that case that the district sented by the appeal. The right to intervene court was clothed with no judicial authority is conferred by statute. Under the statute, in vacation to rule upon a motion for a new Intervention may be had in a cause pending, trial and render judgment. The cause was but it must be previous to the commencement reversed and remanded, with directions to of the trial, and subject to the authority of proceed with the cause as though the decithe court to control its records and acts dur sion and journal entry of the district court ing the term. The petition of the state shows had not been made. In Kime v. Fenner, 54 that it is interested in this litigation; that it Neb. 476, 74 N. W. 869, it was held that has rights that may be lost if it is not made judge at chambers possesses no jurisdiction a party to the action. It had a right, there

| to vacate or modify an order or judgment of fore, to intervene and to be made a party the district court. In Johnson V. Bouton, plaintiff for the purpose of protecting its 56 Neb. 626, 77 N. W. 57, it was held that rights, provided the application for interven- a judge at chambers had no power to detertion was made while the cause was pending mine finally an action for injunction, or to and before the trial commenced. It is appar enter an order out of term dismissing the ent, therefore, that the state can have no cause. It was there held that the fact that standing in this action unless the judgment the parties to the injunction suit stipulated or decree entered on the 28th day of March, that the decision on the merits should be 1906, is absolutely void. If the judgment entered by the judge in vacation did not was not void, then the application to inter affect the validity of the judgment, for the Tene was not made until after trial. If the

| reason that consent of the parties could not judgment was absolutely void, then the cause confer jurisdiction, and it was held that was still pending, and the application was the order of dismissal made by the judge made in due time.

at chambers was void, and that there was Section 4753, Cobbey's Ann. St. 1903, pro

no final disposition of the case in which the vides that all terms of the district court injunction was granted. In Gamble v. Bufshall be held at the county seat at the court falo County, 57 Neb. 163, 77 N. W. 341, it house or other place provided by the county was held that the district court was without board. Sections 4749 and 4751 provide what authority in vacation to render a money business may be transacted by the judges judgment, and that the consent of the parof the courts at chambers. It is unnecessary ties could not confer such authority. to enumerate what things may be done at The Supreme Court of Iowa in Funk v. chambers, but it is sufficient to say that they Carroll County, 96 Iowa, 158, 64 N. W. 767. do not cover the trial of an action to fore reversed and remanded a judgment because close mortgages. The precise question, so the court, during the progress of the trial, far as we are aware, has not been before had adjourned to the residence of a witness this court, but similar questions have been, and there taken the evidence of the witness. and the decisions of the court upon these It was there held that, in a county where allied questions are useful in determining there is a regular courthouse provided and ibe conclusion that should be reached in used for holding court, the court had no this case. Section 11 of the act concerning authority to adjourn to a private house for il trial or a portion of a trial, and that the 3. SAME-NOTICE OF PROCEEDINGS. court so sitting was without jurisdiction.

Where three railroad companies, being However, we are not prepared to hold to this

owner, lessee, and sublessee respectively of a

railroad, join in an action to restrain proceedextent. The law of this state has fixed the

ings under the drainage act of 1881 (Laws 1881, place where the court shall be held. It de p. 236, c. 51), on the ground that due notice termined what business may be transacted

of such proceedings was not given, it is incum

bent upon such plaintiffs to show want of at chambers, and this court cannot change

knowledge of the existence of such proceedings the law, and has no power to change th. in time to appear and contest the same. time or place at which the court may be held.

4. SAME-DAMAGES. The district court possesses jurisdiction only Where three companies are interested in a so long as it is holding court in conformity

railroad which is claimed to be damaged by the

improvement of a branch ditch, which was conwith the law; and when, without excuse, it

structed prior to the building of the road, the disregards the law and attempts to hold court question of such damages is properly disposed in any other place than that prescribed b; of in the original proceeding; and the mere statute, its acts become coram non judice

fact that no damages were allowed one of the

companies does not make such proceedings void When the court attempts to render a judg

and subject to collateral attack. ment at a place other than where it is au

5. STATUTES-TITLE OF ACT. thorized to hold court, it has no jurisdic

While by its title the drainage act of 1881 tion, and its acts possess no validity. It fol- | (article 1, c. 89, Comp. St. 1907) is restricted lows, therefore, that the decree rendered in to the purpose of draining swamp and marsh

lands only, it is not void as in contravention the foreclosure case at the hotel in Chadron

of section 11, art 3, of the Constitution. was absolutely void, and the foreclosure

(Syllabus by the Court.) case is, therefore, properly pending in the court and undisposed of, and the state had

Commissioners' Opinion. Department No. a right to intervene and to be made a party | 2. Appeal from District Court, Sarpy Counto that action for the purpose of protecting

ty; Day, Judge. its rights in the cause.

Action by the Omaha & North Platte RailThe judgment of the district court in dis

road Company, the Chicago, Burlington & missing the petition of the state to intervene

Quincy Railroad Company, and the Chicago, is erroneous, and should be reversed. We Burlington & Quincy Railway Company recommend that the judgment of the district against the county of Sarpy and others. court be reversed and the cause remanded.

Judgment for defendants, and plaintiffs apwith directions to permit the state of Ne peal. Affirmed. braska to intervene and be made a party to

Greene, Breckinridge & Matters and W. L. the action, and to treat the judgment or

Hatteroth, for appellants. A. E. Langdon, decree rendered on the 28th day of March.

| W'm. R. Patrick, and E. R. Reiego, for appel1906, is a nullity.

lees. DUFFIE and EPPERSON, CC., concur.

CALKINS, C. This was an action brought PER CURIAM. For the reasons given in the to enjoin proceedings under the drainage act foregoing opinion, the judgment of the dis.

of 1881. Laws 1881, p. 236, c. 51. From a trict court is reversed and the cause remand point north of its confluence with the Elkhorn, ed, with directions to permit the state of the Platte river runs in a southerly direction Nebraska to intervene and to be made a par

forming the western boundary of Sarpy county to the action, and to treat the judgment

ty. Between the river on the west and the or decree rendered on the 28th day of March, bluffs on the east is a low-lying, swampy 1906, as a nullity.

tract of bottom land, from 114 to 214 miles wide, which is subject to inundation from the

overflow of both the Elkhorn and the Platte, OMAIIA & N. P. R. CO. et al. v. SARPY

as well as surface waters from the bluffs. COUNTY et al. (No. 15,230.)

Instead of descending from the bluffs to the

river, this bottom slopes slightly to the east (Supreme Court of Nebraska. June 26, 1908.) 1. DRAINS-BRANCH DRAINS-PETITION.

to a point where there is a depression runThe power given by section 2 of article 1,

ning in a southerly direction; and following c. 89, of the Compiled Statutes of 1907, to in this depression a ditch had been constructed clude a branch ditch, drain, or water course by the county authorities of Sarpy county in necessary to secure the object of the improve

1885. This ditch ran in a southerly direction, ment, whether mentioned in the petition or not, is not confined to such branches, ditches, or

and discharged its waters into the river drains as are wholly designed to drain the land where it ran in an easterly course along the lateral to the line of the main ditch.

southern boundary of Sarpy county. In 1886 2. SAME -- ASSESSMENTS – REVIEW-INJUNC

the plaintiff the Omaha & North Platte RailTION. The county board, in fixing assessments for

road Company built what is commonly known benefits conferred by the construction of a

as the "Burlington cut-off," between Ashland branch ditch under the provisions of article 1,1 and Omaha. The road traversed this bottom C. 89. Comp. St. 1907, acts judicially, and its

in a northeasterly direction upon an earthen judgment and findings will not be reviewed for error in an injunction suit brought to restrain

embankment, except at the point where it the execution thereof.

| crossed the ditch in question. At this place

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