337. When counsel, in their overzeal, in the argument of a case to a jury depart from the record, a sharp and prompt rebuke from the trial judge will ordinarily cure the error. Brown v. Silver, 2 Unoff. 164; 96 N. W. R. 281.

338. Whether or not, after argument by counsel for plaintiff to the jury, the detense can cut off further argument by waiving argument on his own behalf, is a matter within the sound discretion of the trial court. Henry v. Dussell, Neb.; 99 N. W. R. 484.

339. The existence of a fact can not be presumed from another fact which itself rests wholly upon presumption. Williams v. Miles, Neb. -; 102 N. W. R. 482. 340. An insufficient objection to the competency of a witness can not be availed of as an objection to the competency or relevancy of his testimony. Lincoln Supply Co. v. Graves, Neb. -; 102 N. W. R. 457.

341. It is not error to permit the plaintiff, although crippled, to walk to the witness stand in the presence of the jury. City of Minden v. Vedene, Neb.

; 101 N. W. R. 330. 342. Semble. Where a case is tried upon a certain issue on review, such issue will, if possible, be treated as the issue of the case. Smith v. Corrigan, Neb. -; 101 N. W. R. 331.

343. Where several causes of action are set up in the petition, a separate verdict upon each is not improper. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

344. The overruling of a demurer does not prevent a finding, after the evidence has been taken, that there is no cause of action. Sporer v. McDermott, Neb.

-; 96 N. W. R. 232.

345. Where a written contract made the basis of an action is impeached by proper pleadings on the ground that it was procured by the fraud of the plaintiff, evidence is admissible in support of the fraudulent representations alleged. Bauer v. Taylor, Unoff.; 96 N. W. R. 268. 346. Doctrine as to inadmissibility of oral evidence to vary a contract has no application as between a party to it and a stranger, where there appears no estoppel against showing the truth. Crockett v. Miller, 2 Unoff. 292; 96 N. W. R. 491.

347. Where the plaintiff fails to make a case, but defendant goes on and supplies facts which make out a case for plaintiff, it is proper to allow plaintiff to rebut a showing as to fraud first made in the defendant's evidence. Crockett Miller, 2 Unoff. 292; 96 N. W. R. 491.

V.

348. Where the right of possession of real estate is in issue in an action to set aside a conveyance depending upon prin

349. Where a witness having no knowledge of the order excluding witnesses, enters the court room and hears a small part of the testimony without the knowledge of the attorneys or the party calling him, it is not sufficient to exclude his testimony. Clemmons V. Clemmons, í Unoff. 880; 96 N. W. R. 404. 350. Admissibility of X-ray pictures. 52 C. L. J. 303.

351. A material fact necessary to a defense which is not pleaded is presumed not to exist, and admission of evidence to establish it is error. Tower v. McFarland, 1 Unoff. 893; 96 N. W. R. 172.

352. The competency of expert witnesses is a question largely within the discretion of the trial court, and its rulings thereon will not be reversed unless clearly erroneous as a matter of law. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

353. An objection to a question propounded to a witness is to be judged by the question itself, and its relations to the then state of the case. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

354. If writings offered as evidence of handwriting are admitted by a party to be his, but he claims that their form is the result of duress or fraud, the proper course is to show such fact for the purpose of affecting their weight. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

355. When the question is the value of the use and occupation of real property in the city, one who had for a considerable time occupied the premises may testify to the value of such use. Ish v. Marsh, 1 Unoff. 864; 96 N. W. R. 58.

356. A member of the family living therein is presumptively qualified as a witness to prove the age and pedigree of the other members, but when it is shown that the knowledge of such witness is derived not from family tradition and repute, but from statements made by strangers, the testimony is not admissible. Grand Lodge A. O. U. W. v. Bartes,

Neb.; 96 N. W. R. 186. But if she has such knowledge also from a competent source she may testify. Grand Lodge A. O. U. W. v. Bartes, N. W. R. 715.

Neb. -; 98

357. Where a petition is not assailed until after judgment, it will be liberally construed, so as to be sustained if possible. Brown v. Helsley, 2 Unoff. 69; 96 N. W. R. 187.

a

361. A stipulation, in an action pending in district court, that the property which is the subject of the controversy shall be sold, and the proceeds deposited with the clerk, until it shall be determined which party to the action is entitled to them, and that, if the sale shall be made before the matter is fully litigated, the funds shall be paid out when the court shall have made an order that one or the other party is entitled to them, is not effectual as a release of errors and a waiver of the right of review in this court. Ryan v. Donley, 2 Unoff. 6; 96 N. W. R. 49.

362. A simple preponderance of the evidence is all that is required to maintain an issue of fact in a civil action. Davidson's Est. v. Davidson, Neb.; 97 N. W. R. 797.

363. The burden of sustaining the affirmative of an issue involved in an action does not shift during the progress of the trial, but is upon the party alleging the facts constituting the issue, and remains there until the end. Rupp v. Sarpy County, Neb.; 98 N. W. R. 1042; 102 N. W. R. 242.

364. The burden of proof is on defendant to establish payments, and on plaintiff to show that an admitted payment was properly applied on another debt. Davis v. Hall, Neb.; 97 N. W.

R. 1023.

365. The rule that a plaintiff in a civil action is only required to prove his case by a preponderance of the evidence is not altered by the fact that the acts charged upon the defendant are highly discreditable or even criminal. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

366. The mere fact that a bailiff who summond a talesman who served as a juror was afterwards called and testified as a witness for the successful party is not error. Felsch v. Babb, Neb. 101 N. W. R. 1011.

367. Special findings may be submitted or refused in the legal discretion of the court. Huber Mfg. Co. v. Gotchall, 1 Unoff. 548; 96 N. W. R. 611.

370. The terms on which an amendment to a petition may be permitted rest ordinarily in the sound discretion of the trial court. Suckstorf v. Butterfield, Unoп.; 96 N. W. R. 654.

371. It is proper for the district court to permit answers to be withdrawn and a general demurrer filed to the petition, though the case has been four times to the supreme court, if the question of the sufficiency of the petition has not been previously raised. Edney v. Baum, Neb. 97 N. W. R. 252.

372. Paragraphs of a petition which have been struck out on motion should not be submitted to the inspection of a jury. Trumbull v. Trumbull, Neb. -; 98 N. W. R. 683.

373. The supplying of missing records is a matter resting in the sound discretion of a court, and unless it is abused its exercise will not be interfered with. Sheldon v. Gage County Society of Agri., Neb. -; 98 N. W. R. 1045.

376. Proceeding with case in absence of one of the parties, held under facts stated not error. Richards v. Enlow Cattle Co., Unoff.; 98 N. W. R. 659.

377. It is prejudicial error to allow a trial in the absence of one of the parties, and of any one representing him when the pleadings filed are known to have been lost, and no substituted pleadings are filed or offered. Chicago Co. v. Stan

den, Unoff.; 98 N. W. R. 1051.

378. The matter of allowing leading questions to a witness rests in the sound discretion of the trial courts. When an abuse of such discretion works a reversal. Campion v. Lattimer, Neb.; 97 N. W. R. 290.

379. Asking irrelevant and improper questions merely for their effect on the jury. 57 C. L. J. 103.

380. The refusal to allow evidence to dispute a witness upon an immaterial mat

385. One who by action pursues one remedy without being chargeable with notice of facts entitling him to a different remedy may, upon the discovery of facts, discontinue his first suit, conversion, and bring replevin. Moss v. Marks, Neb. ; 97 N. W. R. 1031.

386. Error on the ground of surprise does not lie from an order allowing the amendment of a pleading, unless a continuance was applied for and denied. Bennett's Estate v. Taylor, Unoff. ; 96 N. W. R. 669.

-

387. Objections to the introduction of evidence must be sufficiently specific to challenge the attention of the court to the ground upon which the objection is Weatherford v. U. P. R. Co., raised. Unoff. -; 98 N. W. R. 1089. 388. In order to preserve for review error in permitting improper remarks by counsel, objection must be made at the time, a ruling obtained from the court, and an exception taken. Lansing v. Wessell, Unoff.; 97 N. W. R. 815. 389. Misconduct of the trial judge in holding conferences with an agent of a party to a pending case. 57 C. L. J. 365. 390. Physical examination of plaintiff. 57 C. L. J. 188.

38. If a cause tried to the court where there is a general finding sustained by sufficient evidence as to one cause of action, judgment will be affirmed, although the petition attempts to state another cause of action, which would not sustain a recovery. Omaha Brewing Assn. v. Tillenburg, 2 Unoff. 277-80; 96 N. W. R. 107.

39. The findings of fact made by the trial court, when a jury has been waived, have the force of a verdict, and will not be disturbed unless clearly wrong. Wantz v. Squires, Unoff. -; 97 N. W. R. 1058.

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3. In a purely legal action, when an equitable counterclaim is filed, and a general objection is made to referring the cause, it is not error to overrule the objection and refer the whole cause to a referee. Brown v. Keith, 1 Unoff. 649; 96 N. W. R. 59.

$1299]

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28. A report of a referee has no juridical force until confirmed by the court. Citizens' Bank v. Stockslager, 1 Unoff. 799; 96 N. W. R. 591.

29. Where parties agree that the report of a referee shall be submitted to the court with the objections and exceptions thereto for determination on the merits by the court they can not base error upon the court's order setting aside the findings of the referee and substituting its own findings. Hodges v. Graham, -; 98 N. W. R. 418.

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Neb.

188. The court will, on its own motion, reject a bill of exceptions not properly certified. Van Auken v. Mizner, -; 97 N. W. R. 334.

Neb.

bill

189. Unless the certificate to a shows affirmatively that it contains all the evidence, the bill will not be considNeb. -;97 ered. Spence v. Lane,

N. W. R. 478.

190. Where the bill of exceptions is not authenticated by a proper certificate of the clerk the court will not examine the case further than to see that the judgment appealed from is supported by the pleadings. Porter v. Detrick, 2 Unoff. 29; 96 N. W. R. 271.

There is no inflexible 191. Semble. rule that a bill of exceptions settled more than eighty days from the final adjournment of the court will not be considered. Langan v. Parkhurst, 1 Unoff. 804; 96 N. W. R. 63.

192. There is no authority for extending the time more than eighty days from A bill of the adjournment of the term. exceptions allowed in violation of this provision will be quashed upon motion in Stock v. Luebben, the supreme court.

Neb. -; 100 N. W. R. 307.

-

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225. The ruling of the trial court on a motion for a new trial on the ground of surprise and newly discovered evidence will not be disturbed unless there is an abuse of discretion. To entitle defendant to a new trial on such ground due diligence must be shown in the procuring of such evidence at the original trial. Grand Neb.; Lodge A. O. U. W. v. Bartes, 98 N. W. R. 715.

226. Where the pleadings had been lost for some time, and in the absence of plaintiff the case was put on trial, all papers being returned after a jury was called, no answer having been filed, the judgment will be set aside as not supported by the pleadings. Chicago Co. v. Standen, Unoff. ; 98 N. W. R. 1051. 227. A new trial on the ground of newly discovered evidence will not be granted where the proposed evidence appears to be hearsay and incompetent, nor where it appears that such evidence was known to the defendant at the beginning of the trial and no seasonable effort to procure it or to secure adjournment was made. Neb. ; 101 N. McNeal v. Hunter, W. R. 236.

228. The power of the court to modify or vacate its own judgments or orders at the term at which they were rendered is an inherent power, and exists independent of any statute, and can be reviewed only for an abuse of discretion. Eager v. Blake, 1 Unoff. 852; 96 N. W. R. 74.

229. A motion for a new trial under this subdivision which shows that the new evidence is merely cumulative or relates to matters already established should be overruled. Norbury v. Harper, Neb. -; 97 N. W. R. 438.

22. A motion for a new trial on the ground of newly discovered evidence must be filed at the term but not necessarily within three days from the date of the rendition of the judgment complained of. A motion for a new trial duly filed within the time prescribed by statute at one term of court may be heard and decided at a subsequent term, and if affidavits are required for its support they may be filed at any time before its final submission. Chadron L. & B. Assn. v. Scott, Unoff. -; 96 N. W. R. 220.

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75. The matter of granting new trials is one of sound legal discretion, and unless abuse thereof is shown the ruling will be affirmed. Kleutsch v. Security Ins. Co., Neb.; 100 N. W. R. 139.

76. Cumulative evidence from witnesses used in the trial where no excuse is shown for not disclosing such evidence at the trial is not ground for a new trial. Campion v. Lattimer, Neb. -; 97 N. W. R. 290.

77. A failure to give one day's notice in writing of the hearing on a motion for a new trial, as required by the rules of the Douglas county district court, does not necessarily render the ruling of the trial court on such motion erroneous. In he supreme court the inquiry will be as to the merits of the ruling on the motion. Cochran v. Philadelphia M. & T. Co., Neb.; 96 N. W. R. 1051.

78. A court presided over by the successor of a deceased judge has authority to grant or deny a motion for a new trial in a case tried by the deceased while in office. Union Pac. R. Co. V. Lotway, 2 Unoff. 348; 96 N. W. R. 527.

79. Where two or more parties join in a motion for a new trial the motion is indivisible, and unless it should be sustained as to all it must be overruled as to all. McCarthy v. Morgan, 2 Unoff. 274; 96 N. W. R. 489.

80. An application to the district court for license to sell real estate is not an action in equity but a special statutory proceeding. Bixby v. Jewell, — Neb. -; 101 N. W. R. 1026.

81. To obtain a review of errors during the trial, a motion for a new trial must be made and ruled on. Norbury v. Harper, Neb.; 97 N. W. R. 438.

82. A motion for a new trial is not necessary to review a judgment of the

-; 102 20. It is only where a final judgment has been procured by fraud, or some order which, by reason of the lapse of the term and its finality, can not be set aside by the ordinary powers of the court that its equity powers come into play. Peard v. O'Neill, Neb. -; 97 N. W. R. 22. 21. The provisions of this section are not applicable to the granting of a new trial in criminal cases. Hubbard v. State,

-

Neb. -; 100 N. W. R. 153.

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193. In an action for damages for personal injury a petition which fails to allege negligence or facts constituting negligence as a matter of law, or that the injury was caused by or resulted from the act of defendant, fails to state a cause of action. Chicago, B. & Q. R. Co. v. Clinebell, Neb. --; 99 N. W. R. 839. 194. Employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. Weed v. Chicago, St. P., M. & O. Ry. Co., Unoff.; 99 N. W. R. 827.

195. A master is bound to use such care as the circumstances reasonably demand to see that appliances furnished his servants for use in his business are reasonably safe. He is not liable for defects of which he has no notice unless the exercise of ordinary care would have resulted in notice. Cudahy Pack. Co. v. Roy, Neb.; 99 N. W. R. 231.

196. If a servant's injury is the direct result of his own disobedience of orders given by one in charge of the work in which he is engaged, he is guilty of contributory negligence, and is not entitled to recover therefor. Western Mattress Co. v. Ostergaard, Neb. -; 99 N. W. R. 229.

197. If it fairly appears that the injury complained of did not occur from want of knowledge of how the machine should be operated, but was incurred from causes that could not be foreseen or anticipated, it can not be imputed to the neglect of the master to give proper instructions. Fronk v. J. H. Evans Laundry, Neb. -; 96 N. W. R. 1053.