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but in his favor as to the lands which the T. L. V. Land & Cattle Company had conveyed to the Central Nebraska Land & Cattle Company "subject to all the debts and liabilities of the said T. L. V. Land & Cattle Company."

Plaintiff's claim is that, having appealed from this decree, he cannot avail himself of the order of sale for the lands which is awarded by it, and that therefore he is entitled to have the rents and profits preserved for the ultimate satisfaction of his judgment by a receiver pending the appeal. The contention of the defendants is that, the land having been conveyed to the present holder "subject to all debts and liabilities of the T. L. V. Land & Cattle Company," it is subject at once to execution without the aid of any decree of the court or other special proceedings, and, it being so subject to execution for the payment of plaintiff's claim, there can be no receiver appointed. It is also urged by the defendants that the plaintiff, in refusing to accept this decree and avail himself of the award of an order of sale, is depriving himself of his remedy, and cannot be permitted at the same time to refuse that by his appeal and to ask for a receiver.

We are constrained to think that neither of these objections of the defendants are well taken. The title to these lands has been conveyed to a third party, who was in no way a party to the judgment; the legal title is in the Central Nebraska Land & Cattle Company; a sale on execution under judgment against the T. L. V. Land & Cattle Company would be inoperative to convey the legal title or to give possession, the conveyance having been placed of record before the filing of a transcript of plaintiff's judgment. The Ideed to the third party would remain as a cloud upon the title, and no summary remedy would lie against the grantee for possession. The legal title would still be in the grantee, and a right to redeem it by payment of the judgment would remain unaffected by a sale under such judgment.

The objection that the plaintiff has taken an appeal from the decree awarding him an order of sale of these premises does not seem to us any better. The appeal is from another portion of the decree. It does not in any way repudiate such right as the decree gave the plaintiff to the satisfaction of his claim out of these lands. It is not denied that the lands are insufficient for this purpose. It seems clear that the acceptance of a portion of this decree would prevent plaintiff from appealing against the remainder of it. It would seem that plaintiff should be allowed to hold the rents and profits of this land within reach of process of the court until the final determination of his action.

It is recommended that the order of the district court appointing a receiver be affirmed.

KIRKPATRICK, C., concurs.

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OLDHAM, C.

This case was originally begun on the probate side of the county court of Sarpy county to require the administrator of the estate of Catherine Saling, deceased, to render an accounting and show cause why he should not pay the claim of plaintiff in error against said estate. Issues were joined on the citation in the probate court, and judgment was rendered in favor of the administrator. The plaintiff in error appealed from the judgment of the probate court to the district court, where issues were again joined, and a judgment rendered affirming the judgment of the probate court. From this judgment the plaintiff brings error to this court.

At the trial of the cause in the district court, all evidence offered by plaintiff was excluded by the trial judge. No motion for a new trial was filed in the district court, and the questions we are now requested to examine are with reference to the rulings of the district court in excluding the testimony offered by plaintiff. These questions, however, we cannot examine, because no motion for a new trial was filed in the court below, and, as the answer of the administrator stated a good defense to the citation, we recommend that the judgment of the district court be affirmed.

HASTINGS and AMES, CC., concur.

PER CURIAM. The conclusions reached by the Commissioners are approved, and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

1. See Appeal and Error, vol. 2, Cent. Dig. § 1691.

KNOLL v. RANDOLPH.

(Supreme Court of Nebraska. May 6, 1903.) APPEAL-REVIEW-BOUNDARIES-GOVERNMENT CORNERS.

1. On rehearing, the law of the case as announced in the former opinion is adhered to, but the judgment of the district court is reversed because of a misunderstanding as to the point at which the verdict of the jury fixed the corner in dispute.

"Not to be officially reported."
On motion for rehearing. Reversed.
For former opinion, see 92 N. W. 195.

DUFFIE, C. The former opinion in this case will be found in 92 N. W. 195, where the facts out of which the litigation grew are fully stated. A rehearing was granted on the application of plaintiff in error, not because we were dissatisfied with any of the legal conclusions reached in the former opinion, but because we made the mistake of assuming that the jury, by its verdict, located the quarter corner on the north half of the section, midway between the two known section corners. A re-examination conclusively establishes that the jury located the quarter corner 60 links east of a point equidistant from the two section corners. In our former opinion we held that the court erred in its fifth instruction to the jury, which was as follows: "Before the plaintiff can recover in the case, he must establish by a preponderance of the evidence either that no quarter corner was established by the government surveyor on the north line of section 20, or that the original location of the same cannot be ascertained, or that the point contended for by him is where the alleged quarter corner was originally located." The rule is that, where the government corner cannot be located by clear and satisfactory evidence, the field notes of the government survey are to be taken as prima facie evidence of the location of such corner. The plaintiff made a prima facie case in his favor when he showed by the field notes introduced in evidence that the quarter corner in dispute was placed midway between the two section corners. This entitled him to a verdict, in the absence of satisfactory proof that the government surveyors had located the quarter corner at a different place than shown by the field notes.

We recommend the reversal of the judgment of the district court, and the remanding of the case for another trial.

ALBERT, C., concurs.

PER CURIAM. The conclusions reached by the Commissioners are approved, and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the former judgment of this court be vacated, and the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.

ROSE v. DEMPSTER MILL MFG. CO (Supreme Court of Nebraska. May 6, 190 APPEAL-FINAL ORDER.

1. An order setting aside a judgment « icree, fixing the time for filing pleading setting the cause down for a new trial, & section 602 of the Code of Civil Procedure, s not a final order from which appeal or enz will lie before trial and a final judgment. (Syllabus by the Court.)

Commissioners' Opinion. Department Ya 2. Error to District Court, Gage Cony Letton, Judge.

Action by the Dempster Mill Manufacteing Company against Ella M. Rose. Juis ment for plaintiff, and defendant brings a Dismissed.

ror.

G. M. Johnston, for plaintiff in error Frank N. Prout, William B. Rose, and H lett & Jack, for defendant in error.

BARNES, C. Plaintiff in error, Ella I Rose, obtained a decree in the district cour for the foreclosure of a certain real estat mortgage against the Dempster Mill Man facturing Company, defendant in error, → gether with certain others who were the mortgagors. The premises were sold for much less than the amount due on the de cree, the sale was confirmed, and afterwards a deficiency judgment was rendered by de fault against the defendant for the balanc due on the decree, on the alleged ground that it had assumed and agreed to pay the mortgage debt. Afterwards defendant filed a petition under section 602 of the Code to set aside the judgment, and allow it to file an answer and defend against the alleged litbility. On the hearing the court found for the petitioner, opened up the judgment, fixed the time for pleadings; and set the cause down for trial. From that order the plaintiff prosecuted error to this court, and the defendant now moves to dismiss for the reason that the order was not a final one, and that no appeal or proceeding in error can be predicated thereon. This presents the single question as to whether an order opening up or setting aside a judgment or decree. and granting a new trial in the case, under section 602 of the Code, is a final order or judgment from which appeal or error will lie. In the case of Morse v. Engle, 26 Neb. 247. 41 N. W. 1098, it was held "that such an application to open up a decree was not a new action, but a proceeding in the original one." A final order or judgment in such a proceeding, to be appealable, must at once put an end to the action by declaring that the plaintiff has or has not entitled himself to recov er the remedy for which he sues. Tried by this test, the order in question is not a final one, but merely vacates the decree or deficiency judgment, and allows the defendant to file an answer and make its defense. It leaves the original action to recover a deficiency judgment undetermined in the trial

court. Cockle Separator Mfg. Co. v. Clark, 23 Neb. 702, 37 N. W. 628; Merle & Heaney Mfg. Co. v. Wallace, 48 Neb. 886, 67 N. W. 883.

This question was again before the court in Browne v. Croft (Neb.) 91 N. W. 177. The opinion on rehearing will be found in 93 N. W. 406 (unofficially reported). Following the cases above cited, it was again held that an order vacating a judgment and permitting an answer to be filed, thus leaving the case for trial on its merits in the district court, is not a final judgment in the case from which appeal or error will lie. Before such an order can be reviewed, there must be a final judgment in the case which disposes of it on its merits.

It follows that the motion to dismiss is well taken, and we recommend that it be sustained and the appeal dismissed.

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1. To avoid a defense of usury, an indorsee of a negotiable note must plead and prove that he took without notice of the usury as well as that he purchased before maturity, and for a valuable consideration.

2. Where no issue as to the bona fides of the transfer and want of notice on the part of the indorsee is raised by the pleadings, error in instructing the jury that a promissory note containing an agreement to pay exchange on the principal sum is nonnegotiable is without prejudice.

Commissioners' Opinion. Department No. 3. Error to District Court, Holt County; Harrington, Judge.

"Not to be officially reported."

Action by A. P. Bovier against Michael McCarthy. Judgment for defendant, and plaintiff brings error. Affirmed.

R. R. Dickson, for plaintiff in error. Harrington, for defendant in error.

M. E.

POUND, C. This is an action upon a promissory note by an indorsee. The defendant pleads usury. The trial court instructed the jury that the note was nonnegotiable, and submitted the question of usury only, refusing an instruction, tendered by the plaintiff, in which the effect of purchase in good faith, for value, before maturity was explained, and the question whether the plaintiff so purchased was submitted. We think the position taken was erroneous, since the sole defect seems to have been that the note contained an agreement to pay exchange on the

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principal sum. Haslack v. Wolf (Neb.) 92 N. W. 574. But it seems clear that the error was without prejudice. To avoid a defense of usury, an indorsee of a negotiable note must plead and prove that he took without notice of the usury, as well as that he purchased before maturity and for a valuable consideration. Wortendyke v. Meehan, 9 Neb. 221, 2 N. W. 339; Olmsted v. New England Mortgage Security Co., 11 Neb. 487, 9 N. W. 650; McDonald v. Aufdengarten, 41 Neb. 40, 59 N. W. 762. No such allegation is to be found anywhere in the plaintiff's pleadings. So long as no issue as to the bona fides of the transfer and want of notice on the part of the indorsee is raised by the pleadings, the error in instructing the jury that the note was nonnegotiable was without prejudice.

We therefore recommend that the judgment be affirmed.

DUFFIE and KIRKPATRICK, CC., con

cur.

PER CURIAM. The conclusions reached by the Commissioners are approved, and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

FIRST NAT. BANK OF PLATTSMOUTH v. GIBSON et al.

(Supreme Court of Nebraska. May 6, 1903.) FRAUDULENT CONVEYANCE-ACTION TO SET ASIDE-PARTIES-VENUE.

1. To a petition in equity alleging fraudulent transfers of property, and seeking to reach the fund conveyed, the debtor who transferred it is a necessary party.

2. Such action may be commenced where the debtor resides, and the transferee served with summons at his residence in another county. (Syllabus by the Court.)

Commissioners' Opinion. Department No. 1. Error to District Court, Cass County; Jessen, Judge.

Action by the First National Bank of Plattsmouth against Francis N. Gibson and others. Judgment for defendants, and plaintiff brings error. Reversed.

A. N. Sullivan, for plaintiff in error. S. L. Geisthardt, for defendants in error.

HASTINGS, C. The errors alleged in this action are that the court erred in sustaining the motion of defendant Francis N. Gibson to quash service of summons had upon him in Lancaster county; second, error in dis missing the case as to the defendant Gibson; third, error in sustaining the demurrer filed by the defendant Carter; and, fourth, error in dismissing the action-and it is asked that the rulings be reversed and the cause remanded as against both defendants.

1. See Fraudulent Conveyances, vol. 24, Cent. Dig. § 743.

The fundamental question in this case is whether or not John M. Carter was a bona fide defendant in this action, and that question is to be determined from an inspection of the petition. Of course, if Carter was not a bona fide defendant, and there is no cause of action alleged against him, under the numerous holdings of this court there would be no authority for serving summons upon the defendant Gibson in Lancaster county; the action having been commenced in Cass county, and commenced there on the ground that John M. Carter, who resided there, was a proper party defendant. Dunn v. Haines, 17 Neb. 560, 23 N. W. 501, and the several cases following it, and the latest one-Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080-all hold that there must be a right of action against the resi dent defendant in order to give any jurisdiction over defendants who reside and are served in other counties.

As above stated, the question is upon the petition, as a demurrer on Carter's behalf was sustained, and the action thereupon dismissed. The defendant Gibson is the only one appearing in this court, and he claims that as against him there is no final order in the case; that he only appeared in Cass county to object to the jurisdiction, and is not responsible for the fact that after such appearance, and the sustaining of the objections, the court dismissed the action as to him. It is alleged that this action of the court was taken in his absence, and not at his request, and that therefore plaintiff cannot complain, even after the final dismissal of the action against Carter also. This is apparently on the ground that the entry of the dismissal must be construed as being taken at plaintiff's request, and therefore was a waiver of any error there could be in sustaining Gibson's objections to the jurisdiction. It appears from the record, however, that plaintiff took exceptions to the dismissal, and it can hardly be held responsible for it.

The authorities cited to the point that an order sustaining objections to the jurisdiction is not final-Lewis v. Barker, 46 Neb. 662, 65 N. W. 778, and the prior decisions in this state to the same effect, following School District v. Cooper, 29 Neb. 433, 45 N. W. 618-doubtless settle this point; but a judgment of dismissal is, of course, final. If the action of the court in sustaining the demurrer of Carter is upheld, then the judgment of dismissal is right. If that action of the court, however, was wrong, and should be reversed, then it is clear that the action in sustaining Gibson's objections to the jurisdiction is also wrong, and should be reversed. It seems clear that it was entirely competent for plaintiff to bring the final judgment of dismissal, the dismissal as to Gibson, and the sustaining of Gibson's objec tions to the jurisdiction-all three-before this court, as it has sought to do by the pe

tition in error. It seems clear, therefor as above indicated, that if the petition a this action shows Carter to have been i proper party defendant, and a good ex of action against him, then Gibson, agains whom the principal relief is asked, could te served with summons in Lancaster County and required to answer the action in Cas county.

The allegations of the petition, which is somewhat lengthy, are: First. That plainf is a corporation. Second. That in 1880 it re covered a judgment against John M. Carter for $778.70, and that execution was issued upon it and returned unsatisfied. Third. That when the judgment was rendered, Carter owned in fee 80 acres of land in Cass county, which is described. Fourth. That Carter in May, 1887, entered into a fraudulent and colusive agreement with Francis N. and B. A. Gibson, brothers, by which Benjamin A. took an assignment of a decree of the Cass county district court in favor of Beardsley, Clark & Davis against Carter, rendered in 1883; that the decree had been fully paid off and discharged, and the assignment was solely in order to defraud plaintiff and other creditors. Fifth. That Benjamin A. Gibson, acting in concert with the other two as conspirators. procured an order of sale, and caused this land, with others, to be sold under pretense of satisfying the said decree, and Benjamin A. Gibson purchased the land, and procured confirmation of the sale and a sheriff's deed Sixth. That Benjamin A. Gibson in Novem ber, 1887, conveyed this 80 acres of land in question to Francis N. Gibson in pursuance of the fraudulent agreement, and the latter entered into possession and held it till March 1, 1901, and appropriated to his own use the rents and profits, amounting to not less than $300 a year; that none of these rents and profits have been paid to Carter, and the latter is now, and has been ever since the rendition of plaintiff's judgment, insolvent. Serenth. That in August, 1889, plaintiff commenced an action in the district court of Cass county to set aside the conveyance by sheriff's deed to Benjamin A. Gibson, and by Benjamin A. to his brother, for the reason that the conveyances were in fraud of plaintiff and Carter's other creditors, and Carter and both Gibsons were parties defendant and filed answers, and judgment was recovered against both Benjamin A. and Francis N. Gibson for the full amount of plaintiff's judgment; that appeals were prosecuted by both of said parties to this court, and the personal judgment against Francis N. Gibson reversed because he had made no disposition of the land; that the said Benjamin A. Gibson has absconded and is insolvent. Eighth. That afterwards such proceedings were had in that action that a decree was rendered in favor of plaintiff, and against Francis N. Gibson, holding that plaintiff's judgment was a legal and valid lien upon the land, and from that decree Francis N. Gibson prose

cuted an appeal to this court, where it was affirmed, and Francis N. Gibson's occupancy of the land was declared without color and tortious. Ninth. That the land was in April, 1901, sold upon a decree of the Circuit Court of the United States for the District of Nebraska upon a lien prior to plaintiff's, and plaintiff's decree against the land, became wholly worthless, and plaintiff is entirely unable to collect its judgment except by compelling Francis N. Gibson to account for the rents and profits of the land during the time of his possession. The prayer of the petition is that an account may be taken of the amount due from Francis N. Gibson to the defendant Carter as rents, issues, and profits of the land; that judgment be rendered against Gibson in favor of Carter, and that plaintiff be subrogated to the rights of said Carter to the extent of the amount due on said judgment; and that plaintiff may be awarded execution there for and for general relief.

Counsel for defendant in error Gibson hardly seems to contend that Carter was not a proper party defendant, but that his interest not being entirely adverse, and in fact he having an interest to get his judgment paid out of this fund, for the purpose of conferring jurisdiction he should be held and considered as in fact a plaintiff, and that any action brought upon this claim should be brought in Lancaster county, where Gibson resides. German National Bank v. First National Bank, 59 Neb. 7, 80 N. W. 48, is cited, as also the same case in 55 Neb. 86, 75 N. W. 531, to the proposition that this is merely a proceeding under section 532 of the Code, and it is urged that there is no allegation of fraud as against the plaintiff on the part of Francis N. Gibson, and nothing to indicate that this is not simply a legal right on the part of Carter against Gibson, which the bank is seeking to enforce for its own benefit.

We do not think this position is tenable. The action seems to us to be much more in the nature of a creditors' bill. The allegation is that by an arrangement between the two Gibsons and Carter, to which Francis N. Gibson is alleged to have been a party, and for the purpose of defrauding the plaintiff and other creditors of Carter, a paid-off decree was assigned to Benjamin so as to get the title to this land, which was subject to the lien of plaintiff's judgment, out of Carter through Benjamin A. to Francis N. Gibson. It seems clear that Carter, if he was, as alleged, a party to the fraud, would himself have no right to assert a claim to the land, or to the income from it. Under the holding in the case of German National Bank v. First National Bank, only a legal right of action on Carter's part would support a direct suit, under section 532 of the Code, on the plaintiff's part against Francis N. Gibson. It seems clear that equity must be resorted to in order to render these facts available, and it has been held that section

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532 does not abrogate or supersede the rem edy in equity. Monroe v. Reid, 46 Neb. 328, 64 N. W. 983; Benedict v. T. L. V. Land & Cattle Co. (Neb.) 92 N. W. 210. "The judgment debtor is a necessary party in all actions brought by creditors to subject property which it is claimed was fraudulently transferred, and without him the action cannot proceed. The person to whom the property has been transferred is also a necessary party." Maxwell, Code Pleading, page 167, citing Logan v. Hale, 42 Cal. 645; Lawrence v. Bank, 35 N. Y. 320; Miller v. Hall, 70 N. Y. 252. This doctrine seems to have the sanction of Chief Justice Marshall in U. S. v. Howland & Allen, 4 Wheat. 108, 4 L. Ed. 526. This last and other cases may be found collected in 14 Cent. Dig. col. 503 et seq.

As above suggested, the necessity of making the judgment debtor, who has transferred property fraudulently, a party to an equitaable action, is hardly disputed by Gibson's counsel in this case. As we have concluded that the petition is one in equity, there seems no doubt that Carter was a proper party, and that jurisdiction attached in Cass county. No defect in the petition itself has been pointed out. As above suggested, Carter makes no appearance, and Gibson and his counsel are evidently afraid of submitting themselves to the jurisdiction of the court.

We have observed no fatal defect in the petition. Of course, if these proceedings are collusive as between plaintiff and Carter, as Gibson's counsel suggests, that fact can be shown.

It is recommended that the judgment of dismissal, the order sustaining the demurrer, and also that sustaining the objections of defendant Gibson to the jurisdiction of the Cass county district court, be reversed, and the cause remanded for further proceedings.

KIRKPATRICK, C., concurs.

PER CURIAM: For the reasons stated in the foregoing opinion, the judgment of dismissal, the order sustaining the demurrer, and also that sustaining the objections of defendant Gibson to the jurisdiction of the Cass county district court, are reversed, and the case remanded for further proceedings.

RIBBLE v. FURMIN. (Supreme Court of Nebraska. May 6, 1903.)

APPEALABLE ORDER.

1. A judgment of the district court on appeal from an inferior tribunal, which is a complete adjudication so far as the district court is concerned, so as to leave nothing further to be done in that court, is a final order, within the purview of section 582, Code Civ. Proc., although the cause is remanded for further proceedings below.

(Syllabus by the Court.)

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