2. Where the incumbent is elected or appointed for a definite
term, and is removable only for specified cause, the power of
removal cannot be exercised until there has been preferred
against him specific charges, of which he shall have no-
tice and an opportunity to defend. Id.
3. Where a person is appointed to an office for a definite pe-
riod and there is a provision of statute that to obtain his
removal charges must be preferred against him, he cannot
be removed unless such charges are made; but this rule
does not apply to a case where the power of removal is
retained and no charges are required. State v. Somers..... 323
Official Seal. See ATTACHMENT, 12.
Onus Probandi. See ATTACHMENT, 13. ELECTIONS, 4.
EVIDENCE, 20. USURY.
Defendant is entitled to open and close where he admits
plaintiff's cause of action and sets up and establishes new
matter as a defense. Suiter v. Park National Bank......... 372
Opinion Evidence. See Evidence, 15.
In an action by a payee against the acceptor of a conditional
order for the payment of money the plaintiff must aver
and prove that the conditions stipulated in the order have
been fulfilled. Stabler v. Gund.........
Paramount Title. See COVENANT OF WARRANTY, 4, 6.
Parol Contract. See DEEDS, 9.
Parol Trust. See STATUTE OF FRAUDS.
Parties. See ERROR PROCEEDINGS.
In a foreclosure proceeding the holder of a prior mortgage is
not a necessary party.
Stratton v. Reisdorph..........................
A chattel mortgage given to secure a partnership debt, exe-
cuted by one partner with the assent of the other, is valid.
Clay v. Greenwood.....
While as between the debtor owing several debts and his
creditor, where the former, at the time of payment of a
sum of money, fails to designate the debt on which it is to
be applied, the latter may do so, yet there is an exception
to this rule, as, where the money was received by the
debtor from a third party whose property would be liable
for the debt in case the money was not applied upon the
third party's liability. Crane Bros. v. Keck
Personal Injuries. See DAMAGES, 1. NEGLIGence, 4, 5.
Plats. See TAXATION, 2.
Pleading. See APPEAL, 7, 10. DEMURRER. EJECTMENT, 6.
EQUITY, 1. FOREIGN LAWS. INSURANCE, 11. JUDG-
MENTS, 10. LANDLORD AND TENANT, 4. MECHAN-
ICS' LIENS, 2. NEGLIGENCE, 7. ORDER. STATUTE
OF FRAUDS.
1. Permission to amend is discretionary with court in actions
pending in district court. Johnson v. Swayze ................. 117
2. In an action in substance for money had and received, a
general denial only puts in issue the receipt of the money.
3. Every material averment in a petition, not denied by the
answer, for the purposes of the action will be taken as true.
Livesey v. Brown.......
4. A plaintiff out of possession may change his petition to
quiet title so as to state a cause of action in ejectment.
Homan v. Hellman.....................
5. Where the defendant claims money as due him under a
contract with the plaintiff, he must plead the fact showing
his right to retain the same. Smith v. Wigton................ 460
6. Every material allegation of new matter in a pleading not
denied by the answer or reply, for the purposes of the
action, is to be taken as true. Consaul v. Sheldon............ 247
7. A denial in an answer of all material allegations in the
petition, although faulty, will be held sufficient when as-
sailed for the first time by motion for a new trial. Rosen-
baum v. Russell..................................................
8. An answer that defendant is not indebted in the full
amount claimed is not a denial of any fact on which the
right to recover depends and raises no issue. Gray v. Elb-
ling............
9. An objection to a petition on the ground that an instru-
ment on which the action is based, or a copy thereof, is
not attached, should be made by motion before answer.
Cheney v. Straube.............
10. Where an amended answer to an amended petition has
been filed without making the original answer part of the
second, the case stands for trial on the amended pleadings
and the originals are disregarded. Smith v. Wigton......... 460
11. An error, if any, in overruling a motion to require
plaintiff to separately state and number his two causes
of action, is cured by instructing the jury that a recovery
can only be had upon one. St. Paul Fire & Marine Ins. Co.
v. Gotthelf.....
12. Damages which necessarily result from the injury com-
plained of in an action for breach of contract may be re-
covered without a special statement of the same in the
petition. Kingsley v. But:erfield............
13. A petition setting out the note upon which suit was
brought, alleging that it "is long past due and no part of
same has been paid," but failing to allege a waiver of de-
mand and notice, was held sufficient after judgment to
sustain it, as the defendant, who could avail himself of
the defense, does not object. Belcher v. Palmer............... 449
14. The only pleadings required in an ordinary action before
a justice of the peace are the bills of particulars provided
by sec. 951 of the Code. Where a cause is appealed to the
district court, and the answer contains new matter, the
plaintiff may follow the procedure in the appellate court
and reply to such new matter. C., B. & Q. R. Co. v. Gus-
tin.
Policies of Insurance. See INSURANCE.
Possession. See ATTACHMENT, 10, 14. CHATTEL MORTGAGES,
3. FORCIBLE ENTRY AND DETAINER, 2.
Powers of Attorney. See ATTORNEY AND CLIENT.
Practice. See APPEAL.
CEPTIONS, 1, 3, 6.
ATTACHMENT, 2. 6. BILL OF EX-
RECORDS, 2. REVIEW, 25.
1. A defendant who desires to submit his case to the jury
on plaintiff's evidence, and asks the court to instruct the
jury to find for him, should make his motion to that effect
without reservation. U. P. R. Co. v. Mertes..........
2. Any error in refusing to direct a verdict against the plaint-
iff at the conclusion of his testimony in chief is waived
by the introduction of evidence by the defense. Id........ 208
3. So long as the subject of the action remains substantially
the same, an amendment may be permitted to adopt the
relief to the facts relied upon for a recovery. Homan v.
Hellman..........
4. A failure to pay costs of suit in an action which has been
dismissed for want of prosecution, where there is a valid
excuse for non-payment, will not prevent procedure in a
second action. U. P. R. Co. v. Mertes.......
204
5. Where the clerk of the court and deputy sheriff assist in
drawing the jury and talesmen, and are interested in the
result of an action, the party complaining should bring the
matter to the attention of the court before trial, otherwise
the objections are waived. Leavitt v. Sizer........... ...... 84
Premium Notes. See INSURANCE, 13.
Presumption. See DEEDS, 6.
Principal and Agent. See ESTOPPEL, 2. MORTGAGES, 7
REAL ESTATE BROKERS. USAGE.
Principal and Surety. See CONTRACTS, 1.
1. A surety cannot urge the default of his principal as a
ground for discharge from his obligation. Consaul v. Sheldon 248
2. Where a statute required two or more sureties to a bond
which was signed by but one, who waived additional sure-
ties, he will be held liable. Gray v. School District of Nor-
folk...............
3. A surety on the bond of a contractor for the erection of a
building is bound only in the manner and to the extent
provided in the obligation, and if payments are made to
the contractor in excess of the amounts due on estimates,
he will not be liable for such excess. Id.
4. In an action upon a c ntractor's bond it was held that the
making of reasonable changes in the plans of the building
during the progress of the work which did not materially
increase the cost beyond the contract price did not release
the sureties, where the contract permitted alterations to
be made. Consaul v. Sheldon..........
5. Where a liquor dealer's bond contains no provision for the
payment of all damages which may be adjudged against
him under the license law, no action can be maintained
against the sureties thereon for damages resulting from
the sale of intoxicating liquors by the principal in the
bond. Uldrich v. Gilmore.......
....... 288
6. Under a building contract authorizing changes in the
plans, the writing of the word "glazed" thereon, indicat-
ing the kind of doors, does not invalidate the contract or
release the sureties on the bond where the change was
made without the knowledge or consent of the contractor.
Consaul v. Sheldon.....................
........ 257
7. When the plans and specifications for a building are
changed after the contract is signed, without the knowl-
edge or consent of either of the parties, the same will not
vitiate the contract; and where the contract authorizes
alterations the sureties on the bond will not be released.
Id...........
.........248, 256, 259
8. In an action on a builder's bond in case stated in opinion,
it was held that the sureties were discharged from liabil-
ity, where payments were made during the progress of the
work without the consent of the sureties, and without
estimates of the architect in excess of eighty-five per cent
of the contract price in violation of the agreement be-
tween the contractor and owner. Bell v. Paul............... 240
Priority. See FORCIBLE ENTRY AND DETAINER, 2. JUDI-
CIAL SALES, 3. MORTGAGES, 1, 5. REPLEVIN, 6.
Words of provocation will not just fy an assault, but may be
ground of mitigation of damages. Haman v. Omaha Horse
Ry. Co..........
Public Improvements. See MUNICIPAL CORPORATIONS.
Public Lands. See ADVERSE POSSESSION. RAILROAD COM-
Purchaser. See JUDICIAL SALES, 3, 5.
Quieting Title. See BONA FIDE PURCHASERS, 3.
1. A plaintiff out of possession may amend his pet tion to
state a cause of action in ejectment, upon payment of costs.
Homan v. Hellman.........
2. Where title of a purchaser of real estate fails, at the suit
of a husband and wife to quiet title to their homestead by
reason of the failure of the wife to join in the conveyance
to such purchaser, and it appears such purchaser, in the
belief that he held title under his conveyance from the
husband, had paid a mortgage that had been executed by
such husband and wife, he should be subrogated to the
rights of the mortgagees and decree of foreclosure should
be entered in his favor. Betts v. Sims..........
.... 840
3. A husband and wife requested a person to buy their home-
stead from a grantee of the husband alone, agreeing to
purchase a part thereof from him as soon as they could
procure funds, and the person so requested thereupon
bought and took conveyance from such grantee of the hus-
band. The husband and wife subsequently brought suit
to quiet title in themselves to the same land on the
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