Article Text
SUPREME COURT SYLLABI
Opinions filed by Court: March 23, 1934 NOTE: Following Opinions, in full with index and digest, will appear in the Nebraska Supreme Court Journal issue of March 27, 1934.
28768 Rentschler V. Missouri Pacific R. R. Co. Appeal, Cass. Affirmed. Paine, J. Rose, J., dissenting. 1. "Collective labor agreement" and "trade agreement" are terms used to describe a bargaining agreement, as to wages and conditions of work, entered into by groups of employees, usually organized into a brotherhood or union, on one side, and groups of employers, or corporations, such as railroad companies, on the other side. 2. Such a collective agreement, being a general offer, becomes a binding contract when it is adopted into, and made a part of, the individual contract of each employee. A breach of its terms will give rise to a cause of action by either party. 3. The terms of the collective agreement, as included in an individual labor contract, ought not to be construed narrowly and technically, but broadly, so as to accomplish its evident aims and protect both the employer and the employee. An employee is not deprived of his right to seek redress in the courts because his contract of employment contained a provision providing a method of arbitration of disputes. 28790 In re Estate of Crosty Crosby V. Johnson. Appeal, Douglas. Affirmed. Begley, District Judge. 1. Where an application is made to probate a carbon copy of a purported last will and testament which has not been found, and on the trial a witness is produced who testified, without contradiction or impeachment, that the deceased during his lifetime destroyed said last will and testament in his presence, with intention of revoking it, the verdict of the jury that said deceased left no last will and testament at the time of his death will be affirmed. 2. It is not prejudicial error in a will contest to ask a mental expert, who had previously testified as to the effects of chronic alcoholism upon the mind of a patient, if in his opinion such patient was in sufficient mental condition to understand reasonably business affairs, and those to whom he was naturally obligated. or to know and understand about his property and his obligations reasonably toward those having lawful claims upon him, in case he should di and his property would have to be disposed of. 28808 McRae V. Mercury Ins. Co. Appeal, Douglas. Affirmed. Goss,
An agreement for the immediate cancelation of a fire insurance policy, without giving five days' notice, can be made, and this can be shown by acts and conduct as well as by direct words. 2. Acquiescence in a cancelation notice will operate to cancel a fire insurance policy and will work an estoppel to assert that the policy is still in force. 28881 Dworak V. Shire. Appeal, Lancaster. Affirmed. Goss, C. J. 1. In law action. where the evidence is in substantial conflict, the decision of fact is for the jury. 2. A judgment on a verdict will not be set aside when the evidence of the prevailing party sustains the verdiet. Evidence and instructions ex. amined and HELD to be free from prejudicial error. 28889 The County of Knox Cook. Appeal, Knox. Affirmed in part and in *part reversed and remanded. Good, J. 1. A county judge is liable on his official bond for trust funds coming into his hands by virtue of his office, which funds he has lost by reason of insolvency of bank in which he had deposited them, notwithstanding he may have acted in good and without depository. negligence in the selection of a 2. County judge cannot set off against a claim for unreported fees the amount which he has paid as premium for his official bond, where no claim for such premium has been presented board. to and allowed by the county 28890 State ex rel Sorensen Denton State Bank (The Loan & Finance Co., Intervener). Appeal, Lancaster. Affirmed. Day, J. 1. Successful bidder at judicial sale becomes a party, may appear and urge confirmation, or show cause why he should be released from his obligation, and may appeal from the order upon motion for confirmation. 2. It is the duty of bank receivers and trial courts to attempt to secure highest possible price for assets of failed bank. 3. Substantially increased offers to receiver for assets of failed bank before confirmation of sale to highest bidder at public sale is sufficient evidence to support a finding of trial court in exercise of its judicial discretion that confirmation should be demed and new sale ordered. 28894 State rel Sorensen V. Farmers State Bank, Wood River, (School Dist. No. 8, Intervener). Appeal, Hall. Affirmed. Per Curiam. Judgment affirmed on the au.hority of State V. Farmers & Merchants Bank of Deshler, 3 SCJ, No 23, P 28895 Toews Schlitt. Appeal, Adams. Affirmed. Paine, J. Evidence examined, and judgment of the trial court affirmed. 28897 State ex rel Soren V. Commercial State Bank, Crawford. (Thomas, Intervener.) Appeal, Dawes. Reversed and remanded. Day, J. 1. Where S. deposits money in bank for which certificate of deposit issues, relationship of debtor and creditor is ordinarily created between bank and depositor. 2. This relationship is not changed to that of trustee and CESTUI QUE TRUST, because administrator of S. does not know of deposit and does not find certificate of deposit until informed years later by receiver of bank after its insolvency, even though bank, with knowledge of death of S. and administration of her estate, did not make voluntary disclosure that some years prior to her death had certificate which was non negotiable, but was assignable. 3. Wrongful conversion of fund by bank and augmentation of its assets essential elements to create trust fund, are not established by evidence in this case. 28899 State ex rel Sorensen Commercial State Bank Crawford (School District of The City of Crawford). Appeal, Dawes: Affirmed. Eberly, J. 1. The application for a new trial, by motion, because of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discov and produced at the trial, is required by section Comp. St. 1929, to Le made at the term the verdict, report or decision was rendered. 2. After adjournment SINE DIE of the term at which the judgment was rendered, the provisions of section 20-1145, Comp. St. 1929, are confor trolling as to statutory applicat on a new trial. 3. A motion for a new trial cannot be amended by assigning new grounds after the statutory time for fil ng such motion has expired, except upon a finding by the court that the party was unavoidably prevented from preamendment. senting the matter contained in the 4. Even the action of a majority of a school district board will not the district, without notice to or parbers. ticipation therein of the other mem5. Estoppel not having been pleaded in the district court may not be urged versal. on appeal as reason for re-
Allen & Requartte, O. C. Wood, Attorneys 522 Terminal Bldg. SHERIFF'S SALE NOTICE IS hereby GIVEN That by virtue of an Order of Sale, issued by the Clerk of the District Court of the Third Judicial District of Nebraska, within and for Lancaster County, in an action wherein Emma B. Tidball is plaintiff, and E. C. Boehmer, Administrator of the Estate of Eleanor Gardner W. Gardner, Deceased; Herbert C. and first and real name unknown, Gardner, husband and wife: Marian Meyers and ers, first and real name unknown, husband and wife; Herbert Gardner, a single person; John Doe and Mary Doe, first and real names unknown, husband and wife, tenants in possession, are Defendants will, at 2 o'elock p. m., on the 24th day of April, A. D. 1934, at the east door of the Court House in the City of Lincoln, Lancaster County, Nebraska, offer for sale at public auction, the followto-wit: ing described Lands and Tenements, Lot Five (5) in Block Five (5) in Capitol Addition to the City of braska. Lincoln, Lancaster County, NeGiven under my hand this 21st day of March, A. D. 1934. CLAUDE P. HENSEL. Sheriff. Apr 21 Mar 24-31, Apr 7-14-21
Frank M. Coffey, ttorney 203 Kresge Bldg. NOTICE TO NON. RESIDENT DEFENDANT To James D. Barker: Lucile Barker has filed a petition in the district court of Lancaster county Nebraska, in which she prays that she be granted an absolute divorce from you, together with the care and custody of a minor son, James Lee Barker. Unless you answer said petition or before the 30th day of April, 1934, said petition will be taken as true and the relief prayed for by plaintiff granted. LUCILE BARKER, Plaintiff. Apr 14 Mar 24-31, Apr 7-14
