27. A judgment in an attachment proceeding against a resident of this state not a resident of the county to which he makes no appearance is not a lien on his property. Nelson v. City of Beatrice, 2 Unoff. 47; 96 N. W. R. 288.

28. The lien acquired by attachment or garnishment is not lost by taking a general money judgment against the defendant without an order for the sale of the attached property where the creditor has used due diligence in the prosecution of a creditor's bill. Coulson v. Saltsman, Neb.; 98 N. W. R. 1055.

Neb.

ac

29. A plaintiff who has obtained an attacnment upon real estate and recovered judgment thereon may maintain an tion in equity to set aside a fraudulent conveyance execution without issuing upon his judgment. Grandin v. First Natl. Bank, -; 98 N. W. R. 70. 30. If such an action to set aside a fraudulent conveyance atof property tached is pending for several years it is not a defense that the holder of the legal title has made valuable improvements thereon while the action was pending, being led by the delay in bringing the action to trial to suppose that plaintiff's claim would be abandoned. Grandin v. First Natl. Bank, Neb.; 98 N. W. R. 70. 31. After plaintiff in attachment has re.covered judgment and an order for the sale of the attached real estate, and has begun an action in equity to set aside a fraudulent conveyance of the real estate, the discharge in bankruptcy of the judgment defendant will not defeat such ac- Neb. tion. Grandin v. First Natl. Bank, -; 98 N. W. R. 70.

32. Under facts stated, held that the deed was not delivered until after the levy of the order of attachment, and that the mortgagee's lien is subject to the attachment lien. Naudain v. Fullenwider, Neb.; 100 N. W. R. 296.

148. A mandatory injunction may be issued to enforce a decree in equity. Whitaker v. McBride, Unoff.; 98 N. W. R. 877.

149. Where an injunction is necessary to a successful foreclosure of a chattel Mom. mortgage, it should be granted. rich v. Schwartz, Unoff. -; 96 N. W. R. 636.

150. A valid agreement in restraint of trade must be established by clear and satisfactory proof to warrant a court in restraining its breach by injunction. Roberts v. Lamont, Neb.; 102 N. W. R. 770.

151. A court of equity has jurisdiction to enjoin a trustee from the misappro

155. A creditor whose claim is not in judgment, and who has not acquired a lien, can not restrain his debtor from disposing of his property. Brumbaugh v. Jones, Neb. -; 98 N. W. R. 54.

156. Relief can not be claimed by the plaintiff in an injunction proceeding on grounds outside of the pleading. A person seeking to enjoin a village board from making a special assessment must show on the face of the record that some jurisdictional fact is wanting. Bemis v. McCloud, Unoff.; 97 N. W. R. 828. 157. Action of the trial court in dismissing petition for an injunction, approved. Jones v. Smith, Unoff. 97 N. W. R. 304.

158. A private individual can not maintain an action to prevent gas mains being laid in the streets of a city unless he pleads and proves that some special injury will result to him. Ray v. Colby,

Unoff. ; 97 N. W. R. 591.

159. An injunction order made by the court which had no jurisdiction over the matter involved, or which is in excess of the powers of the court granting it, is void. The duty of an election board to canvass the votes cast at an election is a plain statutory duty and can not be enjoined, and a mandamus will issue to compel them to perform this duty, notwithstanding the injunction. State ex rel. v. Carlson, Neb. -; 101 N. W. R. 1004. 160. A resident tax payer without showing any interest or injury perculiar to himself, may enjoin illegal expenditures by a public board or officer. Woodruff v. Welton, Neb.; 97 N. W. R. 1037.

-

161. In no event will an injunction lie until taxes legally due on an assessment are paid or tendered. Hacker v. Howe, Neb.; 101 N. W. R. 255.

162. A lower riparian owner may restrain an upper owner from diverting water in a proper case. McCook Irr. Co. v. Crews, Neb. -; 102 N. W. R. 249.

163. An injunction by a riparian proprietor against a large number of defendants taking water from a stream is maintainable though no other relief is

164. Where an adequate remedy exists at law, equity will not assume jurisdiction by granting an injunction. Brown v. Reed, Neb. -; 100 N. W. R. 143.

165. Insolvency of the judgment creditor is sufficient ground for a suit by a judgment debtor to enjoin collection of the judgment for the purpose of enforcing a set-off. Commercial State Bank v. Ketchum, 1 Unoff. 454; 96 N. W. R. 614.

166. Where a child of school age is wrongfully denied admission to the public school of a district, an injunction may properly issue to restrain the directors of the school from interfering with its attendance. Mizner v. School Dis. No. 11, 2 Uno. 238-42; 96 N. W. R. 128.

167. To enjoin a judgment rendered by default, the plaintiff must show that he has a meritorious defense, that he has no adequate remedy at law, and that he was not guilty of neglect. Koehler V. Reed, 1 Unoff. 836; 96 N. W. R. 380.

168. A party is not entitled to relief against a judgment at law unless he both plead and prove a defense thereto upon the merits, and that he had no notice or knowledge of the pendency of the action at law in time to make his defense and has not been negligent. Dorwart V. Troyer, 2 Unoff. 22; 96 N. W. R. 116.

169. Where a defendant is proceeding under color of a lawful contract, an application for an injunction which is granted on condition of a bond being given which is not done, the fact that defendant proceeded with his work is not conclusive of his lack of good faith. The courts will not enjoin the execution of a contract entered into in good faith except on condition of the payment of a fair value for the work and material already furnished. Clark v. Lancaster County, Neb. -; 96 N. W. R. 593.

1248

51. An application for a receiver is addressed to the sound discretion of the Neb. McKenzie v. Beaumont, court. -; 97 N. W. R. 225.

52. The appointment of a receiver in an equitable action is ordinarily an ancillary remedy, provisional in character, and incidental to the main object or purpose of the suit. In the absence of statutory authority, courts of equity do not possess jurisdiction to appoint a receiver over a corporation on the application of Vila v. Grand Island private parties. Elec. Co., Neb.; 97 N. W. R. 613. 53. A receiver can not be appointed for a solvent corporation just because the owners are not competent to run it and Sioux Smiley v. ask for a receiver. Neb.; 99 N. W. Beet Syrup Co., R. 263; 101 N. W. R. 253.

54. The overruling of objections to the discharge of a receiver does not prevent the raising of the same issue in a subsequent proceeding. Hamilton Bank v. AmNeb. -; 100 N. erican L. & T. Co., W. R. 202.

55. A receiver in suing should state the facts of his appointment, and where his is denied he character representative must prove that ne was duly appointed Hagerman v. Thomas, 1 and qualified. Unoff. 497; 96 N. W. R. 631.

56. The holder of a diamond contract, who has not reduced his claim to judgment, and has no lien on the property, has no standing in a court of equity to impound the assets of

such company.

Whether the holder of such a contract can have "clean hands," as required by one who seeks the aid of the court of Mann v. German-Amer. equity, quaere? Inv. Co., Neb.; 97 N. W. R. 600. can be garnished by leave of the court which appointed him. Unoff. -; 97 N. W. Yeiser v. Cathers,

57. A receiver

R. 840.

of

Neb. -; 97

a corporation not

1266

not error. Unoff.

-; 99

10. The action of the trial court in exas jurors is cluding talesmen to serve not error unless by reason thereof an incompetent juror has been included in the panel through the abuse of the discreFelsch v. tionary power of the judge. Babb, Neb. -; 101 N. W. R. 1011. challenges 11. Until all peremptory have been exhausted, the ruling of the trial court on a challenge for cause is not reviewable. Chicago, B. & Q. R. Co. v. Neb. -; 98 N. W. R. 44. Kryenbuhl,

293. Where the evidence is not sufficient to warrant a verdict for plaintiff, the court should not submit the case to the jury. Sattler v. Chicago R. I. & P. Ry. Co., Neb.; 98 N. W. R. 663.

294. Where there is no conflict in the evidence, and reasonable men can draw but one conclusion therefrom, the court should direct a verdict. Linton v. Baker, 1 Unoff. 896; 96 N. W. R. 251.

295. A trial judge is not required to submit a case to a jury merely because some evidence has been introduced by the party having the burden of proof. The evidence must be such that it would warrant a jury in finding for the party introducing it. Weed v. Chicago St. P., M. & O. Ry. Co., Unoff. -; 99 N. W. R. 827. 296. Where there is not sufficient evidence to sustain a verdict in favor of a party, the court should direct a verdict. Chaffee v. Park Lum. Co., 1 Unoff. 632; 96 N. W. R. 495.

297. When the evidence of a party is not sufficient as a matter of law to make out a case, it is the duty of the court to instruct a verdict for the other party. Hill v. Pitt, 2 Unoff. 151; 96 N. W. R. 339.

298. The court should not dismiss an action at the request of the defendant unless there is substantial ground therefor shown by the record. Gillman V. Topinka, Neb. -; 100 N. W. 1126.

299. In reviewing the action of a trial court in directing a verdict, this court will regard as conclusively established every fact favorable to the unsuccessful party which the evidence proves or tends to establish. Preston v. Stover, Neb. -; 97 N. W. R. 812.

300. Remarks of the trial judge with respect to an issue as to which a verdict was directed having no apparent connection with the only issue left to the jury are not grounds for reversal. Hillebrand v. Nelson, not off. rep. 95 N. W. R. 1068. 301. The court may instruct the jury that in passing on a particular issue, they may consider a certain piece of evidence, so long as undue prominence is not given thereto, but it is error for the court to point out the value of a certain piece of evidence in its relation to other circumstances and incidental questions not primarily in issue. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

302. Informality in a verdict rendered in obedience to a peremptory instruction is not prejudicial, if the judgment is such as would properly have been rendered if the error had not been committed. Heag

303. In case stated held that the question of partnership should have been submitted to the jury. Swofford v. Cowgill, 2 Unoff. 254; 96 N. W. R. 215.

304. It is error for the court to give undue prominence to a portion of the testimony, or to state to the jury what weight shall be given it. Kleutsch v. Security Ins. Co. Neb. -; 100 N. W. R. 139.

305. An instruction which merely points out the legal consequence of certain facts, of which there is evidence, in case the jury find them to be established, is not erroneous. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

306. When the trial court gives an accurate, pertinent, and intelligent instruction covering a particular point it is not bound, at counsel's request, to give another instruction, expressing the same idea in more perspicuous phrase. O'Brien v. State, Neb.; 96 N. W. R. 649.

311. Instructions on impeachment of witness, by previous contradictory statements, held erroneous. Nielsen v. Cedar County, Unoff. -; 98 N. W. R. 1090. 312. Where the evidence on a vital proposition is erroneously excluded, it is not necessary for the party offering it to proceed to establish other propositions in his case in order to predicate error on such ruling. Gartner v. Chicago, R. I. & P. R. Co., Neb.; 98 N. W. R. 1052. 313. When the evidence as to the alleged breach of contract is all contained in letters which had passed between the parties, and there is no conflict as to what the letters show, it is for the court to determine the legal effect of such evidence, and to so instruct the jury. Hixson v. Nebraska Post Co., Unoff. ; 98 N. W. R. 872.

314. Where a written contract is relied upon by both parties to an action, it will be literally construed and enforced by the courts. McCormick Co. V. Brown, Unoff. -; 98 N. W. R. 697.

315. An issue not made by the pleadings may be regarded as an issue in the case, where evidence is introduced and received thereon without objection. But where objection is made, it is error to submit the issue to the jury. Kitchen Bros. v. Dixon, Neb.; 98 N. W. R. 816.

316. Instructions on impeachment of witnesses held erroneous. Nielson V. Cedar Co., Neb. -; 97 N. W. R. 826.

317. A party has a right to have his theory of the case as presented by his proofs presented to the jury by suitable instruction. Lansing v. Wessell, Unoff. -; 97 N. W. R. 815.

318. Giving an erroneous instruction is not reversible error where it is apparent Irom the record that it was not considered by the jury in arriving at their verdict. Leidigh v. Keever, Unoff.; 97 N. W. R. 801.

319. The trial court in its instructions may properly limit evidence, admitted, but capable of misapplication, to those issues to which it is legally applicable. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

320. It is proper for the court to refuse to give an instruction where it is not based on the facts proven, although it correctly states an abstract principle of law. Leidigh v. Keever, Unoff. -; 97 N. W. R. 801.

322. An instruction that good faith is presumed in a business transaction is proper in case stated. Crockett v. Miller, 2 Unoff. 292; 96 N. W. R. 491.

323. Underscoring words in an instruction held not prejudicial in case stated. Crockett v. Miller, 2 Unoff. 292; 96 N. W. R. 491.

324. An instruction which substantially withdraws an issue in the case is erroneous. Russell v. Gunn, 2 Unoff. 141; 96 N. W. R. 341.

325. Where the court has properly instructed on a material issue at the request of either party, it is not error to omit any reference to such issue from the court's own instructions. City of Minden v. Vedene, Neb.; 101 N. W. R. 330. 326. When a special request is made for an instruction which fairly reflects either the meritorious cause of action or the ground of defense, the court should either give it or substitute another to the same effect. Western Mattress Co. v. Ostergaard, Neb. -; 101 N. W. R. 334.

327. If the judge misstates the testimony it is error, but if he merely fails to make a complete statement, the party desiring a fuller statement should make a request to that effect. Without such a request a general exception is of no avail. Barton v. Shull, -; 97 N. W. R. 292.

Neb.

328. Where an affirmative defense is set out in an answer and evidence tending to support such defense is given on the trial, the court should call the attention of the jury to that phase of the case. Figg v. Donahoo, Unoff. -; 95 N. W. R. 1020. 329. Where the court at the request of one party to a suit submits an issue to the jury, such party is estopped to deny that an adverse finding thereon is sustained by sufficient evidence. Chicago, R. I. & P. R. Co. v. Sizer, - Unoff. —; 95 N. W. R. 498.

330. Where the plaintiff has the burden of proof, and fails to establish all the facts necessary to enable him to recover, it is proper for the court to direct the jury to return a verdict for the defendant. Agnew v. Montgomery, Neb. -; 99

N. W. R. 820.

333. All the undisputed pertinent facts of a case should be substantially included in hypothetical questions propounded to experts. Schulz v. Modisett, 2 Unoff. 138; 96 N. W. R. 338.

334. An attorney may write out his statement of the evidence and read it as part of his argument, if he does not misrepresent the evidence. Stull v. Stull, 1 Unoff. 380, 389, 399; 96 N. W. R. 196.

335. It is customary to permit attorneys to comment upon the absence of witnesses, or their non-production, when they are shown to have knowledge of the facts in issue. It is a mere matter of argument, and may be discussed by either side, trusting to the good sense of the jury to properly estimate the value of such argument. Chicago, B. & Q. R. Co. v. Krayenbuhl, Neb. -; 98 N. W. R. 44.