1. In an action against an executrix for money lent decedent by
plaintiff, testimony of plaintiff that she had a business transaction
with decedent, if error, was not prejudicial, where plaintiff's son testi-
fied that the debt in question had been due plaintiff for years. Gaff-
ney v. Mentele, 381.
2. A "cause of action" is a wrong. It may arise from the refusal
to respond to an obligation. It is also defined as a matter for which
an action may be brought; the ground on which an action may be
sustained, and the fact, or combination of facts, which give rise to a
right of action. Jerome v. Rust, 409.
3. An Indiana corporation had an exclusive sales agent in Ne-
braska, which was in possession of buggies belonging to the principal.
The contract of agency expired, and another person who had taken
possession of the former agent's warehouse sold the buggies to a resi-
dent of South Dakota without the owner's authority. Held, that the
Indiana corporation after the expiration of the contract of agency was
transacting an interstate business so far as the buggies were concern-
ed, and could bring replevin in South Dakota to recover them without
complying with Rev. Civ. Code, §§ 883, 885, requiring a foreign cor-
poration before doing business in the state to file with the Secretary
of State its articles of incorporation and to appoint a resident agent.
Rex Buggy Co. v. Dinneen, 474.
4. A grantee of mortgaged property who has assumed the mort-
gage debt by a clause in the deed is not liable in an action of covenant,
but only in assumpsit. Hollister v. Strahon, 570.
1. Sess. Laws 1905, p. 219, c. 133, § 4, requires the county cattle
inspector to inspect cattle, and, if it is found that they are infected
or have been exposed, to cause them to be quarantined, and to notify
the owner and instruct him as to their treatment, and if the owner
fails to comply with the instructions of the inspector for more than 10
days the inspector may treat the cattle as he deems necessary. Heid,
that where no inspection of plaintiff's cattle was made, and no instruc-
tions were furnished plaintiff, the inspector had not authority to notify
plaintiff to treat the cattle, or, on his failure to do so, to have them
treated under the inspector's direction. Decters v Clarke, 298.
2. The State Live Stock Commission had no power to authorize a
county cattle inspector to proceed otherwise than as provided by the
statute regulating the duties of such inspector and prescribing the
method of performing them.
1. Any error in excluding testimony was harmless where the fact
sought to be shown was developed by other evidence. National Bank
v. Sherman, 8.
2. On appeals from a judgment for plaintiff in an action by the
trustee of a bankrupt to recover a preference, the objection that plain-
tiff ought not to recover because of laches in bringing this action can-
not be raised where such objection was not made in the lower court.
Graat v. Dry Goods Co., 197.
3. On appeal from a judgment for plaintiff in an action by the
trustee of a bankrupt to recover money paid to a creditor as being a
preference, the objection that plaintiff should not recover because of
laches in bringing the action cannot be considered where there is noth-
ing in the record to show when the action was commenced. Id.
4. Rev. Pol. Code, § 1574, provides that an appeal may be taken
f:om the action of corporate authorities in the same manner as appeals
from the board of county commissioners under sections 850-854. Sec.
850 provides that from decisions of the board of county commissioners
there shall be allowed an appeal to the circuit court on filing a bond
executed to the county. Section 851 provides that said appeal may be
taken by serving a written notice upon one of the board of county
commissioners. Section 852 provides for filing such appeal and section
854 provides that the court may make final judgment and cause the
same to be executed. Held, that a notice of appeal from the action of
the authorities of an incorporated town in rejecting a claim served on
only one of such authorities, and an undertaking executed to the
county instead of to the authorities of the incorporated town, are suf-
ficient. Starcher v. Town, 217.
Assignments of error not discussed in the brief will be treated
as abandoned. Bolte & Jansen v. Fire Assn., 240.
6. Where the only matters that could be questioned on a proper
record on appeal from the judgment and from an order denying a new
trial are the sufficiency of the pleadings to support the judgment and
the sufficiency of the findings to support the concluisons and judg-
ment, but there is no claim but that the pleadings are sufficient, and
no error assigned on the overruling of the motion for a new trial,
there is nothing left for consideration, and the judgment and order
must be affirmed. Wolf v. Sneve, 260.
7. Rev. Justices' Code, § 100, provides that on appeal on questions
of law alone the appellant must prepare and file a statement of the
case, containing the grounds on which he intends to rely and so much
of the evidence as may be necessary to explain the same. Held, that
a statement of the case, containing no assignments of error, and fail-
ing to specify wherein the justice erred, as to show any error occur-
ring on the trial excepted to by defendant, was insufficient. Halvor-
sen v. Myren, 263.
8. The "grounds" on which an appeal from a justice of the
peace is based, required to be stated in the appellant's statement on
appeal by Rev. Justices' Code, § 100, are the grounds mntioned in
Rev. Code Civ. Proc. § 303. Id.
9. Where appellant failed to file and serve his abstracts and briefs
prior to the time required by the rules of court, and also failed to
comply with a stipulation between the parties extending the time, re-
spondent was entitled to a dismissal of the appeal. Bunday v. Smith,
303.
10. The office of an assignment of error is to point out some spec-
ific error, and the complaining party must lay his finger upon the pre-
cise error complained of. State v. Cleveland, 335.
11. An assignment of error was as follows: "The court erred in
admitting testimony, excluding testimony, striking out and in refus-
ing to strike out testimony, all as shown by the assignments of error
herein numbered from 1 to 39, inclusive. *** The following charge,
*** in view of the evidence of the vase, was manifest error: [Fol-
lowed by part of the charge.]" No exceptions to rulings complained
of were alleged, nor were the pages of the abstract nor of the bill of
exceptions given where the rulings and exceptions could be found.
Held, that the assignment of error was too vague and indefinite to be
considered. Id.
12. Where specific objections are made to evidence below, other
objections will not be considered on appeal, so that an objection to the
admission of a physicians testimony as to the cause of a death, as
not being upon witness' own knowledge or upon a hypothetical state-
ment of facts will not be considered on appeal, where that objection
was not made below. State v. Kammel, 465.
13. It being impossible to determine how much weight the jury
gave to the evidence relating to the treatment of such patient in find-
ing a breach of the agreemnt by plaintiff, the error in refusing the in-
struction was reversible. Brown v. Edsall 610.
14. An appeal lies from a judgment, though there has been no mo-
tion for new trial. Dring v. St. Lawrence Twp. 624.
15. A bill of exceptions is not essential to an appeal from a
judgment. Id.
16. Under the direct provisions of Rev. Code Civ. Proc. § 445, no
appeal bond is required of any incorporated town or city when it is
a party directly interested in the appeal. Id.
17. An instrument signed by the trial court suppressing the bill of
exceptions in the case was ineffectual for any purpose where it was not
attested. Id.
18. In an action by the holder of township bonds to recover the
amount of the debt represented thereby, in which defendant claimed
that the bonds were void as making the township debt exceed the con-
stitutional limitation, the irregularity of directing a verdict for plain-
tiff, after receiving additional evidence as to the amount in the town-
ship treasury when the bonds were issued, without renewal of the mo-
tion to direct which was made before such evidence was received, may
be disregarded as not affecting any substantial right, in view of Rev.
Code Civ. Proc. § 153, forbidding reversals for errors not affecting
substantial rights. Id.
19. Under Rev. Civ. Code, § 2415, providing that acquiescence in
error takes away the right of objecting, defendant cannot object to the
direction of a verdict for plaintiff after the introduction of additional
evidence, without renewing the motion therefor, where he did not ob-
ject at the time. Id.
1. Supreme Court rule 11, providing that appellant in civil actions
and proceedings shall append to and print with his abstract an assign-
ment of errors, stating as specifically as the case will allow the errors
objected to, and only such as he expects to rely on and ask the ocurt
to examine, is mandatory; and hence, in the absence of an assignment
of errors so filed, the judgment will be affirmed. Williams Bros. v.
Kelly 582.
1. The right of a court to disbar an attorney, who is an officer of
the court, is as much the law of the land, and of as much dignity as
such, as any law in the Constitution or statutes. It is not dependent
on either the Constitution or statutes for its existence, but exists
fully in all courts of record, unless expressly restricted or taken away
by legislation. Danforth v. Egan, 43.
2. The effect of "disbarment” of an attorney is to deprive him of
every privilege to which his license had entitled him, not only his
privileges in the court making the order of disbarment, but also his
privileges in all courts. Id.
3. The fact that a disbarred attorney has been subsequently elécted
to the office of state's attorney does not authorize him to practice in
the courts of the state. Id.
4. A disbarred attorney, subsequently elected state's attorney, is
not qualified for the office, since his action in allowing his name to go
on the ballot and remain there, knowing that he could not perform
the duties of the office, is a fraud on the people. Id.
5. Where a disbarred attorney is elected to the office of state's at-
torney, and is disqualified because unable to perform the duties of the
office, the fact that he might perform the duties of the office by deputy
does not qualify him, as he must discharge the duties of his office
himself. Id.
6. The acceptance of every office is upon an implied contract that
the acceptor will perform its duties with integrity, diligence, and
skill. Id.
7. Where, by the laws of the state, the duties of a state's attorney
consist chiefly in appearing in the courts of the state, a disbarred at-
torney elected to the office cannot qualify therefor. Id.
8. The word "attorney," when used in connection with the pro-
ceedings of courts and the authority to conduct business in them, as
well as when employed in a general sense as to the transaction of
business usually and almost necessarily confided to members of the
legal profession, has a fixed and universal signification, and has ref-
erence to a class of persons who are by license made officers of the
courts, and empowered to appear, prosecute, and defend, and upon
whom peculiar duties, responsibilities, and liabilities are devolved by
law in consequence. Id.
9. Pol. Code, § 9271⁄2, provides that a state's attorney must be a
person duly admitted to practice as an attorney in some court of
record in the state. The Constitution was enacted subsequent to the
passage of the statute, and provided that the state's attorney must
be learned in the law. Held, that, by the use of the word "attorney"
the framers of the Constitution meant a duly licensed attorney, and
hence a disbarred attorney was not qualified to hold the office. Id.
10. Where an attorney has been disbarred for violation of legal
ethics, which is one of the branches required by Pol. Code, § 686, to
be considered in passing upon the qualifications of one seeking ad-
mission to the bar, he is not "learned in the law" within the consti-
tutional provision requiring that a state's attorney shall be learned
in the law, since it will be presumed that the violation occurred
through ignorance, and not through willfulness. Id.
11. Under Rev. Pol. Code § 699, providing that an attorney may
bind his client by stipulation, but that no evidence of such agreement
is receivable except the statement of the attorney himself, his written
agreement, etc., the court on appeal will not consider oral stipulations
by attorneys extending the time for filing abstracts and briefs, where
the respective counsel differed as to their recollections regarding them.
Bunday v. Smith, 308.
12. An alleged stipulation to continue a cause signed by attorneys
of one of the parties, and not by the other, is wholly void. Meadow v.
Osterkamp, 462.
1. Evidence, in an action by the trustee of a bankrupt to recover
a preference, held to show knowledge by the creditor, at the time of
the transfer, of the insolvency of his debtor and an intent on the part
of the debtor to prefer defendant. Grant v. Dry Goods Co. 195.
1. A plea of total failure or want of consideration for a note sued
on fails if the evidence shows any consideration. Bank v. Sherman, 8.
2. Under Civ. Code, § 1285, a maker of a note to escape liability
thereon because of a partial failure of consideration or fraud must res-
cind by offering to return the consideration if return is possible, but
no rescission or offer to return is necessary if the property is worth-
less. Id.
3. In an action on a note by an indorsee not a bona fide purchaser,
defendant maker's rights as to defenses of fraud and failure of con-
sideration are the same as if the suit were by the payee. Id.
4. In an action on a note defended on the ground of a failure of
consideration plaintiff could show that after the machines for which
the note was given were bought, defendants accepted the proceeds of
insurance policies under a claim that the machines, which were dam-
aged by fire, were worth more than the face of the note. Id.
1. A broker contracted for his principal to purchase land for a cer-
tain amount. There was a mortgage on the land to secure several
notes. The record definitely stated the rate of interest borne by the
notes to be 6 per cent. per annum, but did not show that past-due notes
and installments of interest bore an increased rate of interest. The
broker did not ascertain this fact, and failed to investigate, as re-
quested by the principal, to see if one of the notes had been paid,
the principal, going on the assumption that the one note had been paid,
and that the others bore only 6 per cent. interest, overpaid for the
land, and sought to recover from the broker. Held, that the broker
had a right to rely upon the recitals of the record which definitely
stated the rate of interests, as had the principal who could not be held
for a higher rate, and hence there could be no recovery from the
broker for payments of interest in excess of that rate. Hinrichs v.
Brady, 250.
2. The broker having failed to investigate as to whether the one
note had been paid, and having allowed the principal to act on the as-
sumption that it had been, was liable to the principal for the sum he
could be legally held to pay thereon. Id.
3. Merely listing land with brokers for sale at a stated price only
authorizes the brokers to find a purchaser for the owner, and not to
make any contract with the purchaser to convey the property, so that
a letter from the owner to brokers, stating that his price for the land
was a certain sum, payable as provided, and requesting the brokers to
let him hear from them, did not authorize the brokers to execute a
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