correctness rule in Nebraska

1967The applicable rule is stated in McIntosh v. State, 105 Neb. 328 , 180 N. W. 573 , 12 A. L.

1967The applicable rule is stated in McIntosh v. State, 105 Neb. 328 , 180 N. W. 573 , 12 A. L.

1950Exchange Elevator Company v. Marshall, 147 Neb. 48 , 22 N. W. 2d 403 .

1950Exchange Elevator Company v. Marshall, 147 Neb. 48 , 22 N. W. 2d 403 .

1942In State v. Cochran, 138 Neb. 163 , 292 N. W. 239 , a case similar in principle, this court said: “An action for mandamus against the administrative officers of the state to compel the proper enforcement of the irrigation laws, and thereby prevent unlawful diversions of water by junior appropriators, is properly maintainable in the county where the resulting damages occur.” Defendant state officers attack the correctness of this rule and urge that this court depart therefrom.

1942In State v. Cochran, 138 Neb. 163 , 292 N. W. 239 , a case similar in principle, this court said: “An action for mandamus against the administrative officers of the state to compel the proper enforcement of the irrigation laws, and thereby prevent unlawful diversions of water by junior appropriators, is properly maintainable in the county where the resulting damages occur.” Defendant state officers attack the correctness of this rule and urge that this court depart therefrom.

1935In this connection the correctness of the doctrine of Peter v. Finzer, 116 Neb. 380 , is challenged because, though in harmony with the determination of the majority of the jurisdictions which have considered the subject involved therein, it is inconsistent with the well-established rules of suretyship.

1933Noah v. Bowery Savings Bank, 225 N. Y. 284 ; Chase v. Waterbury Savings Bank, 77 Conn. 295 .

1933Noah v. Bowery Savings Bank, 225 N. Y. 284 ; Chase v. Waterbury Savings Bank, 77 Conn. 295 .

1931The sole question presented to and decided by this court in the case of Gillilan v. Kendall & Smith, 26 Neb. 82 , is the correctness of the instruction of the district court as the same appears on page 84.

1923The only doubt which has been cast upon the correctness of this rule is based upon the decisions of the United States supreme court in Boyd v. United States, 116 U. S. 616 , Weeks v. United States, 232 U. S. 383 , and Silverthorne v. United States, 251 U. S. 385 .

1923The only doubt which has been cast upon the correctness of this rule is based upon the decisions of the United States supreme court in Boyd v. United States, 116 U. S. 616 , Weeks v. United States, 232 U. S. 383 , and Silverthorne v. United States, 251 U. S. 385 .

1923The only doubt which has been cast upon the correctness of this rule is based upon the decisions of the United States supreme court in Boyd v. United States, 116 U. S. 616 , Weeks v. United States, 232 U. S. 383 , and Silverthorne v. United States, 251 U. S. 385 .

1922The first syllabus is as follows: “Where a public road has been established by proceedings .under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein, and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid.” That case followed City of Beatrice v. Black, 28 Neb. 263 , and has been cited with approval in Close v. Swanson, 64 Neb. 389 , and Kime v. Cass County, 71 Neb. 677 , In Close v. Swanson, supra, the court distinguished the Lydich case, citing t

1922The first syllabus is as follows: “Where a public road has been established by proceedings .under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein, and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid.” That case followed City of Beatrice v. Black, 28 Neb. 263 , and has been cited with approval in Close v. Swanson, 64 Neb. 389 , and Kime v. Cass County, 71 Neb. 677 , In Close v. Swanson, supra, the court distinguished the Lydich case, citing t

1922The first syllabus is as follows: “Where a public road has been established by proceedings .under the statute and opened and traveled by the public for more than ten years, the public thereby acquires an easement therein, and the court will not examine the original proceedings for the laying out of the road and determine whether or not they were valid.” That case followed City of Beatrice v. Black, 28 Neb. 263 , and has been cited with approval in Close v. Swanson, 64 Neb. 389 , and Kime v. Cass County, 71 Neb. 677 , In Close v. Swanson, supra, the court distinguished the Lydich case, citing t

1921In affirming the judgment of the court below the rule was announced, in the former opinion of this court, that such judgment was not conclusive upon an indemnitor under those circumstances, and the correctness of that rule is vigorously challenged by the appellant on the ground that it is in conflict with the decision of this court in Pasewalk v. Bollman, 29 Neb. 519 .

1905In Richards v. Connell, 45 Neb. 467 , it was held: “The owner of a vacant lot upon which is situated a pond of water or dangerous excavation is not required to fence it, or otherwise insure the safety of strangers, old or young, who may resort to said premises not by invitation, express or implied, but for the purpose of amusement or from motives of curiosity.” This rule was referred to with approval by Judge Siodgwiok in an elaborate opinion in Tucker v. Draper, ( 52 Neb. 66 , where it is said: “We have no doubt that under the facts in that case the law Avas correctly applied.” It may be cons

1903In the case of Holt County v. Scott, 53 Neb. 176 , we held that “the fact that an official bond has been approved does not of itself constitute or- evidence the delivery and acceptance of the bond.” It is further stated in the opinion therein (p. 198) that “if the bond is appiwed, this fact also shows that the investigation has disclosed everything to be satisfactory, but the approval does not constitute or evidence a delivery and an acceptance.” We are thus fully committed to the doctrine complained of.

1899The correctness of the rule announced in Pennock v. Douglas County, supra, is denied by plaintiff.

1898The supreme court of Michigan steadfastly denied the power of the legislature to deprive municipal corporations of the right of local self-government, although in People v. Mahaney, 13 Mich. 481 , that court, in harmony with the principle announced by many courts, approved a law authorizing the selection by the governor of police commissioners for cities, recognizing a distinction betAveen officers whose duties are purely of a local character and officers chosen for a particular city or toAvn whose duties are of a public or general nature, and which concern the state or general public.

1898This is but the restatement of the doctrine laid down by Justice Cooley, after an able and exhaustive discussion of the question, participated in by all members of the court, in People v. Hurlbut, 24 Mich. 44 .” Judge McGrath, after stating that the correctness of the doctrine enunciated in People v. Hurlbut, supra, has not been since questioned but approved in numerous cases which he cites, said: “The act of 1857 is therefore invalid, as the legislature cannot divest the people of the county of Wayne of the right to select their own officers in the usual manner.” The Michigan cases referred t

1898This is but the restatement of the doctrine laid down by Justice Cooley, after an able and exhaustive discussion of the question, participated in by all members of the court, in People v. Hurlbut, 24 Mich. 44 .” Judge McGrath, after stating that the correctness of the doctrine enunciated in People v. Hurlbut, supra, has not been since questioned but approved in numerous cases which he cites, said: “The act of 1857 is therefore invalid, as the legislature cannot divest the people of the county of Wayne of the right to select their own officers in the usual manner.” The Michigan cases referred t

1898We are fully persuaded that the facts in the case at bar bring it within the principle announced in Carstens v. McDonald, 38 Neb. 858 , where it was stated: “A mere declaration by a party to a contract'that he does not intend |to carry out the terms thereof before performance is due /will not constitute a breach, so as to authorize the other to at once maintain an action.; for the party, at any time before the period fixed for performance, has the right to recant and comply with his agreement; but if he fails to withdraw his declaration before the time comes for performance, it will excuse the

1898We are fully persuaded that the facts in the case at bar bring it within the principle announced in Carstens v. McDonald, 38 Neb. 858 , where it was stated: “A mere declaration by a party to a contract'that he does not intend |to carry out the terms thereof before performance is due /will not constitute a breach, so as to authorize the other to at once maintain an action.; for the party, at any time before the period fixed for performance, has the right to recant and comply with his agreement; but if he fails to withdraw his declaration before the time comes for performance, it will excuse the

1897Co., 70 Wis. 335 ; State v. Supervisors of Delafield, 69 Wis. 264 .) The correctness of this rule, as an abstract proposition, is attended with no difficulty; but, as with many others, the difficulty arises when we attempt to treat it as of universal applicability.

1897Co., 70 Wis. 335 ; State v. Supervisors of Delafield, 69 Wis. 264 .) The correctness of this rule, as an abstract proposition, is attended with no difficulty; but, as with many others, the difficulty arises when we attempt to treat it as of universal applicability.

1895Co., 32 Vt., 551 , the court, while intimating some doubt as to the correctness of the doctrine, states that it has been so long established that it will not be departed from, but also states the reason for it to be, in the first place, that the former decision has the same weight as authority as a decision in another case, and, in the second place, that it is an adjudication between the parties.

1895(Studebaker v. McCargur, 20 Neb., 500 ; Harman v. Barhydt, 20 Neb., 625 ; Todd v. Cremer, 36 Neb., 430 ; Whipple v. Fowler, 41 Neb., 675 .) Without considering the correctness of this rule, it is sufficient to say that it has been for many years established in this state.

1895(Studebaker v. McCargur, 20 Neb., 500 ; Harman v. Barhydt, 20 Neb., 625 ; Todd v. Cremer, 36 Neb., 430 ; Whipple v. Fowler, 41 Neb., 675 .) Without considering the correctness of this rule, it is sufficient to say that it has been for many years established in this state.

1895(Studebaker v. McCargur, 20 Neb., 500 ; Harman v. Barhydt, 20 Neb., 625 ; Todd v. Cremer, 36 Neb., 430 ; Whipple v. Fowler, 41 Neb., 675 .) Without considering the correctness of this rule, it is sufficient to say that it has been for many years established in this state.

1895(Studebaker v. McCargur, 20 Neb., 500 ; Harman v. Barhydt, 20 Neb., 625 ; Todd v. Cremer, 36 Neb., 430 ; Whipple v. Fowler, 41 Neb., 675 .) Without considering the correctness of this rule, it is sufficient to say that it has been for many years established in this state.