wholesome rule in Nebraska

1939The court further said (p. 725) : “There is certainly no direct authority for such action, nor does it appear to us to be based on any well recognized rule of construction to hold that such authority is lodged in a presiding officer of a municipal corporation (even though he be the officer upon whom service is required to be had) as an implied power, under the different sections of the statute bearing on the subject. * * * The service contemplated in the foregoing section * * * is upon the corporation in its corporate capacity, and not upon an individual officer of the corporation. * * * The m

1939The court further said (p. 725) : “There is certainly no direct authority for such action, nor does it appear to us to be based on any well recognized rule of construction to hold that such authority is lodged in a presiding officer of a municipal corporation (even though he be the officer upon whom service is required to be had) as an implied power, under the different sections of the statute bearing on the subject. * * * The service contemplated in the foregoing section * * * is upon the corporation in its corporate capacity, and not upon an individual officer of the corporation. * * * The m

1928By analogy this conclusion finds support in Berkovitz v. Morton-Gregson Co., 112 Neb. 154 , and cases therein cited.

1902The reason for the rule does not seem at this day to have been sound, or even plausible; but such as it was, it has ceased to exist, and in this state the rule itself has been swept away by section 412 of the Criminal Code, which declares that no indictment shall be deemed invalid “for want of the averment of any matter not necessary to be proved, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” All the elements of the offense of which Richards was convicted having been alleged in the information, we are

1895In Livingston v. Coe, 4 Neb., 379 , it was said that it is a wholesome rule of practice to refuse to enterlain a second motion, where one for the same purpose has been overruled, unless leave to file is specially given, but that where there has been an omission through inadvertence or ignorance of the facts, application should be made for leave to file a new motion to obtain a ruling on such new matter.

1894In Aultman v. Steinan, 8 Neb., 109 , it was held that service of summons might not be made by leaving a copy at the defendant’s usual place of business, yet that if the defendant wished to avail himself of the defect named, he must confine his motion to that alone.

1893In an opinion of this court, in Township of Midland v. County Board of Gage County, 37 Neb., 582 , filed dui’ing the present term, it has been held that the electors of a township are entitled to stand upon the very letter of their promise, a wholesome rule which should be extended to the facts under consideration.