13694. Citizens State Bank (Wahoo, NE)

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SUPREME COURT SYLLABI Opinion Filed by Court March 31, 1934 NOTE: Fonowing Opinions, in full with index and digest, will appear in the Nebraska Supreme Court Journal issue of April 10, 1934. 29150 State ex rel Beal V. Bauman. Original. Writ allowed. Eberly, J. Even though an act of the legislature professes to be an independent act, and does not formally purport to in fact, the legislative intent is to, and it clearly appears that the act does, make changes in an existing act or acts by adding new provisions or changing existing one therein and mingling the new and the changed with the old on the same subject, S0 as to make of the old, the changed, and the new a connected piece of legislation covering the same subject, the latter act must be considered an amendment of the former act or acts and within the constitutional prohibition. Opinions filed by Court April 6, 1934 28799 Anderson V. Svehla. Appeal, Douglas. Reversed and remanded. Good, J. 1. Evidence examined and HELD to dsiclose no actionable negligence. 2. In absence of master's negligence, his servant assumes the risks of injury incident to employment, where such risks are obvious and known to him. 28823 In re Estate of Rhea, Courtright, Sidner, Lee & Gunderson V. Estate of Rhea. Appeal, Dodge. Affirmed. Rose, J. Good, J., dissents. Eberly, J., concurs in dissent. 1. Time devoted by attorneys to duties performed for the administrator of decedent's estate at an arbitrary charge for a day's service is not necessarily the measure of compensation allowable by the court. 2. In proceedings to settle the estate of a deceased person, the administrator and his attorneys are officers of the court and both are fiduciaries in their relation to heirs. 3. An administrator of the estate of a deceased person is a trustee and property in his hands as such is trust property. 4. ine estate of a deceased person in the hands of the administrator is trust property under the immediate control of the court. 5. The estate of a deceased person in the hands of the administrator as trustee is' subject to the legitimate expenses of administration, including proper attorneys' fees, but it is the duty of fiduciaries who take part in the execution of the trust to be diligent in protecting the trust property from fraudulent or excessive claims and from misappropriations. 6. Services of an administrator and his attorneys in settling the estate of deceased person are subject to judicial scrutiny and review. 7. Opinions of experts as to the value of services performed by atorneys for the administrator in the settlement of the estate of a deceased person must be considered that issue but are not necessarily binding on the court. 8. In determining the compensation of attorneys for services performed for the administrator and heirs in the settlement of the estate of a deceased person, the court may consider the amount of property in volved; the responsibility assumed; the questions of law raised; the time necessarily required in the performance of duties; the result of services performed; the testimony of experts on value: the professional diligence and skill; the services of other counsel necessarily employed by heirs to protect them from active fraud and misappropriations of the administrator. 9. A fee for services by attorneys for an administrator in his individual capacity is not chargeable against the estate of decedent. 28862 Taylor V. Luedke. Appeal, Madison. Affirmed. Redick, District Judge. 1. Section 52-601, Comp. St. 1929. construed, and HELD not to provide for a lien upon the crops in favor of a farm hand. for labor in plowing the land, planting and ten ling the crops. as for labor performed on personal property. 28867 Kline V. Department of Public Works. Appeal, Thurston. Reversed and remanded. Good, J. 1. Waiver of damages, procured by material misrepresentations. on which the grantor relied, is voidable at the option of the grantor, and may be rescinded at any time before it is acted upon by grantee. 2. A waiver executed without consideration may be withdrawn at any time before it is acted upon. 3. Laches should be pleaded, to be available as a defense. 28873 Showers A. H. Jones Co. Anneal. Adams. Affirmed. Redick, District Judge. 1. Where the evidence is conflicting, or when reasonable minds may differ as to the inferences to be drawn from undisputed facts, the verdict of the jury will not be disturbed if sustained by sufficient evidence. 2. here the rate of speed of an automobile is the question, the time and place with reference to the scene of the accident as of which evidence is admissible rests largely in the discretion of the court, and, unless abused, its ruling will not constitute reversible error. 3. Evidence examined and found 28874 The Mercantile Insurance Co. V. Wiles. Appeal, Lancaster. Affirmed. Chappell, District Judge. No Syllabus. 28913 Carek V. Schmidt. Appeal, Saunders. Affirmed. Day, J. 1. One who involuntarily signs note and assignment of an insurance policy to bank may have them canceled in suit in equity where she was induced to execute note and assignment by suggestion of officer of bank that unless she did S0 her brother would be arrested and sent to prison and that she herself would be involved. 2. In this case plaintiff herself was not in fact involved and the actual guilt of her brother is immaterial where she was compelled to sign by officers of bank to which note was payable, causing her first to fear his arrest and imprisonment and then to hope that this would be avoided if she signed the note and executed the assignment of the insurance policy. 3. "Any wrongful influence designedly exerted by an interested party and producing a condition of mind that deprives the other party of the exercise of his free will may amount to duress and invalidate a contract signed while the influence prevails." Farmers State Bank V. Dowler, 112 Neb. 262. 29043 Hensley V. Chicago, St. Paul, Minneapolis & Omaha Railway Company. Appeal, Dakota. Affirmed. Rose, J. 1. A material ruling by the supreme court on appeal, resulting in the reversal of a judgment, ordinarily becomes the law of the case in subsequent proceedings, including a second appeal. 2. An amendment of a petition after trial, judgment. appeal and reversal, if amounting to a departure from law to law and from fact to fact, thus introducing a new cause of action long since barred by the statute of limitations, is not allowable. 29082 Luikart V. The Continental National Bank. Appeal, Lancaster. Affirmed. Landis, District Judge. 1. An account stated is an agreement between parties who have had previous transactions of a monetary character that all items of account representing such transactions, and the balance struck, are correct, including a promise. express or implied, for the payment of such balance. 2. Minds of parties must meet in agreement. stating an account like any other 3. Motion for directed verdict admits all material and relevant evidence, together with proper inferences therefrom. 1. Court properly directed verdict in action on account stated where testimony merely disclosed that exhibit furnished by bank to receiver of bank carrying an account therein was tentative and submitted for ten days' consideration of errors, within which period a controversy arose in respect count. to debits to be credited against ac5. Whether party may withdraw his rest and introduce further testimony rests within sound discretion of trial court. 6. Letter to receiver of bank suing on account stated HELD properly received as part of cross-examination of assistant to receiver in charge of failed banks, in view of the fact that it was not questioned that letter was genuine; that it was received and was part of controversy between parties. Perry, Van Pelt & Marti, Attorneys 615 First National Bank NOTICE TO CREDITORS Estate No. 9784 of Horace B. Wilkinson, Deceased, in the County raska. Court of Lancaster County, NebThe State of Nebraska, SS: Croditors of said estate will take notice that the time limited for presentation and filing of claims against said estate is September 17, 1934 and for payment of debts is April 15, 1935; that I will sit at the County Court room in said County, on September 17, 1934, at 2 P. M. receive, examine, hear, allow, or adjust all claims and objections duly filed. Dated April 3, 1934. County Judge. By J. L. PIERCE, (Seal) Clerk. Apr. 21 Apr. 7-14-21 A woman with horse sense never becomes a nag. T. F. A. Williams, Attorney 702 Security Mutual 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 Babsonian Investment Company, a corporation, is plaintiff, and Claude W. Johnston, E. Loretta Johnston, The First Trust Company of Lincoln, Nebraska, a corporation, as Successor Trustee to Lincoln Safe Deposit Company, The First Trust Company of Lincoln, Nebraska, a corporation, as Successor Trustee to Lincoln Trust Company, L. A. Ricketts as Trustee of Lincoln Safe Deposit Company, Bankrupt, L. A. Ricketts as Trustee of Lincoln Trust Company, Bankrupt, Laura T. McClain, Leo McClain, Alma Applegate, are Defendants I will, at 2 o'clock m., on the 8th day of May, 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 following described Lands and Tenements, to-wit: Lot Seven (7), Block One (1), Brace and Strawbridge Subdivision of Lot Thirteen (13) H. Culbertsons Subdivision of the Northeast Quarter (NE%) of the Northwest Quarter (NW) and the Northwest Quarter (NW) of the Northeast Qua (NE%) of Section Nineteen (19), Township Ten (10), North, Range Seven (7), East of the Sixth Principal Meridian: and the South One-third (S½) of Lots Six, (6), Seven (7) and Eight (8), Block Fifteen (15), Pecks Grove an addition to Lincoln, Lancaster County, Nebraska, all according to the official plats thereof of record and on file in the office of the-Register of Deeds of said County, together with all improvements thereon. Given under my hand this 6th day of April, A. D. 1934. CLAUDE P. HENSEL, Sheriff. May 5 Apr 7-14-21-28, May 5 T. F. A. Williams, Attorney 702 Security Mutual 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 Babsonian Investment Company, a corporation, is plaintiff, and Eric J. Erickson, Lillie Erickson, E. H. Luikart, as Receiver of Citizens State Bank, Wahoo, Ne-| braska, Woods Brothers Company, a corporation, are Defendants will, at 2 o'clock p. m., on the 8th day of May, A. D. 1934, at the east door of the Court House in the City of Lincoln, Lancaster County, Nebraska, offer sale at public auction, the following described Lands and Tenements, to-wit: Lots Thirteen (13) and Fourteen (14) Block Four (4) Idvlwild Place, in the City of Lincoln, Lancaster County, Nebraska, together with all improvements thereon. Given under my hand this 6th day of April, A. D. 1934. CLAUDE P. HENSEL, Sheriff. May 5 Apr 7-14-21-28, May 5 Perry, Van Pelt & Marti, Attorneys 615 First National Bank NOTICE OF PROBATE Estate No. 9860 of Maria C. Bennett, Deceased, in County Court of Lancaster County, Nebraska. The State of Nebraska, To all persons interested in said estate, take notice, that a petition has been filed for probate of the last will and testament of said deceased, and for the appointment of A. P. Burke as Executor thereof, which has been set for hearing herein on May 4, 1934, at 9 o'clock A. M. Dated April 6, 1934. ROBIN R. REID, County Judge. By J. L. PIERCE, (Seal) Clerk. Apr 21 Apr 7-14-21 Fred C. Foster, Attorney 513 Security Mutual Bldg. NOTICE OF PETITION Estate No. 9850 of Florence C. Jones, Deceased in County Court of Lancaster County, Nebraska. The State of Nebraska, To all persons interested in said estate, take notice, that a petition has been filed for the appointment of Grace Carmen Brady, as administratrix of said estate, which has been set for hearing, on May 3, 1934 at 9 o'clock A. M. Dated April 3, 1934. ROBIN R. REID, County Judge. By J. L. PIERCE, (Seal) Clerk. Apr. 21 Apr. 7-14-21 H. N. Mattley, Attorney 301 Federal Securities Bldg. NOTICE OF PETITION Estate No. 9855 of Alice G. White, Deceased in County Court of Lancaster County, Nebraska. The State of Nebraska, To all persons interested in said estate, take notice, that a petition has been filed for the appointment of H, N. Mattley as administrator of said estate, which has been set for hearing, on April 30, 1934 at 9 o'clock A. M. Dated April 3. 1934. ROBIN R. REID. County Judge. By J. L. PIERCE, (Seal) Clerk. Apr. 21 Apr. 7-14-21 George H. Risser, Attorney 602 Federal Securities Bldg. NOTICE OF PETITION Estate No. 9847 of Wilhalm Sothan, Deceased in County Court of Lancaster County, Nebraska. The State of Nebraska, To all persons interested in said estate, take notice, that a petition has been filed for the appointment of Mary Sothan as administratrix of said estate, which has been set for hearing, on May 1, 1934 at 10 o'clock A. M. Dated April 2. 1934. ROBIN R. REID, County Judge. By J. L. PIERCE. (Seal) Clerk. Apr. 21 Apr. 7-14-21