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IN THE SUPREME COURT OF THE STATE OF NEBRASKA SYLLABI March 2, 1932 The following opinions were filed by the Court: Schoenrock V. American Indemnity Association. Appeal, Jefferson. Affirmed. Per Curiam. No Syllabus. Miles V. Oil Well Supply Co. Appeal, Richardson. Affirmed. Per Curiam. No Syllabus. McKinney V. Wintersteen. Appeal, Lancaster. Affirmed. Begley, District Judge. 1, A qualified expert, upon laying a proper foundation, may give his opinion as to the speed of an automobile based on the length of skid marks made by it when brakes were applied. 2. child six years of age is not possessed of sufficient discretion to make her guilty of negligence, or contributory negligence, for her failure to exercise due care for her safety. 3. Evidence examined, and held to support the verdict of the jury. Staben v. Mehrens Appeal, Washington. Reversed and dismissed. Begley, District Judge. 1. A. judgment debtor who files a dilatory pleading in a suit filed against him in county court and thereafter consents with the plaintiff to permit the cause to be continued for more than three terms of court in order that he may procure evidence of a partial payment, claimed to be made by him, and thereafter abandons his defense and permits the plaintiff to take default judgment against him, cannot in a collateral proceeding, by injunction, enjoin Neb. 790. the enforcement of such judgment as void under section 27-524, Comp. St. 1929, as having been continued for more than three terms of court without his consent. Per Curiam. 2. In a suit by a judgment debtor to enjoin the enforcement of a judgement, on the ground that it is void because the court wherein it was rendered had not acquired jurisdiction over his person, a court of equity will not grant affirmative relief unless it is made to appear that he had a seritorious defense to the cause of action on which the judgment was based. Braun V. Quinn, 112 Neb. 485. Bliss, Receiver V. Live Stock Nat'l Bank of Omaha. Appeal, Lancaster. Reversed and remanded. Day, J. 1. Where the president and vice-president of a bank make an unauthorized payment of their individual debts out of funds of the bank, the bank may recover from the creditor who received the payment with knowledge that it was SO paid. 2. The fact that the president and vice-president are personally interested in a transaction is Paine, J. sufficient to put the creditor on inquiry as to their authority to pay their individual debts with funds of the bank. Grantham V. City of Chadron. Appeal, Dawes. Affirmed. Per Curiam. of fraud. No Syllabus. Citizens National Bank V. Polski. Appeal, Howard. Affirmed. Goss, C. J. 1. When a contract has been executed in consideration of an agreement not to prosecute criminally, the general rule is that no action lies to recover property delivered under its terms. The court will Peterson leave the parties in the same position in which it finds them. 2. When such an agreement has been obtained by duress, it may be avoided by the party against whom the duress is exercised. 3. "The equitable principle expressed in the maxim He who comes into equity must come with clean hands,' being founded on public policy, public policy may require its relaxation or limitation. Even when the parties have been found to be in pari delicto, relief has at times been awarded on the ground that in the particular case public policy has been deemed to be best conserved by that course." Weaverling V. McLennan, 116 Neb. 466. 4. Where equity has assumed to act, it must do complete justice, regardless of whether litigants originally came into court with unclean hands." Weaverling V. McLennan, 116 Neb. 466. Lustgarten V. Harris. Appeal, Douglas. Affirmed. Dean, J. 1. In an action by a pedestrian against the owner of an automobile for personal injuries sus- tained when she was struck by such automobile as she attempted to cross the street in the middle of the block, where it appears that the automobile was more than half a block away when she first started across the street, and that she looked a second time, and no other automobiles were in sight, and where the driver of such automobile saw such pedestrian and, by the exercise of due care in the control thereof, could have stopped in time to avoid striking her, held, that the question of the comparative negligence of the parties is one for the jury. 2. Where different minds may reasonably draw diverse conclusions from the same facts as to whether or not they establish negligence or contributory negligence, those issues must be submitted to the jury." Perrine V. Union Stock Yards Co., 81 3. Evidence examined, discussed in the opinion, and held that the verdict is supported thereby. Abbey V. Potter. Appeal, Webster. Affirmed. No Syllabus. Woods Bros. Corporation V. Francks. Appeal, Lancaster. Affirmed. Day, J. 1. One who accepts the check of a third party as a conditional payment of a debt is charged with the duty of collecting it without negligence. 2. In such a case, the circuitous routing of the check through a distant bank situated outside the state, requiring six days for making a presentment for payment, which might have been made in one day, is negligence. 3. Such negligence, if it causes the check to be unpaid, will render the conditional payment of the debt absolute. Lehmere V. White. Appeal, Douglas. Affirmed with leave to rédeem before mandate is issued. Mere inadequacy of price in a sale under foreclosure will not justify a court in refusing a confirmation, unless such inadequacy is so great as to shock the conscience of the court or to amount to evidence
