made to the contrary, it must be assumed here that such bond was given and approved, and the judgment of the court, so far as that contention is concerned, must be affirmed.

2. It is next contended that the court erred in allowing the affidavit of the publisher of the newspaper in which the notice of the application for the license to sell intoxicating liquors was published showing such publication to be brought up from the city clerk's office and filed in the case at the time of the hearing on the appeal. We cannot agree with the plaintiffs on this proposition. The transcript showed that the applicant had complied with the law, and that the proof of publication of the notice had been filed with the clerk; therefore it must have been be fore the board at the hearing. When it was ascertained that it was not sent up to the district court, either in the transcript or by way of the bill of exceptions, the court very properly ordered it to be brought up and filed in the case. Such action was equivalent to the order often made by this court on a suggestion of a diminution of the record.

3. The plaintiffs allege that the court erred In sustaining the judgment and order of the council, because the petition of the applicant was not signed by 30 bona fide resident freeholders of the Third ward of the city; that it was the duty of the applicant to establish that fact by competent evidence. We fully agree with this statement, so far as it relates to the duty of the applicant. It ap pears, however, from the record that the remonstrators specifically challenged the qualifications of certain of the signers to the application, naming them; that upon the hearing evidence was introduced by the applicant tending to show that such persons were qualified signers of his petition; and such evidence was not disputed by the remonstrators. The district court, upon consideration of this evidence, found that it was sufficient, and sustained the order and judg ment of the city council made thereon. We are unable to say that the finding of the learned judge of the district court was clearly wrong, and therefore his judgment should be sustained. In Waugh v. Graham, 47 Neb. 153, 66 N. W. 301, it is said that "where questions of fact have been determined by the body authorized to pass upon applications for licenses to sell intoxicating liquors, and also by the district court to which an appeal has been taken from the decision of the licensing body, and the findings and conclusions agree, they will not be disturbed in error proceedings to this court, unless manifestly wrong." think the case at bar falls clearly within this rule, and we therefore recommend that the judgment of the district court be affirmed.

OLDHAM and POUND, CC., concur.

We

PER CURIAM. The conclusion reached by the commissioners is approved, and, it appearing that the adoption of the recommen

dation made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

ANTHONY et al. v. KARBACH et al. (Supreme Court of Nebraska. April 17, 1902.)

JUDGMENT-DEFAULT-VACATION-GROUNDS

PETITION-VERIFICATION - ANSWER - FAILURE TO FILE-EFFECT-GENERAL FINDINGSUFFICIENCY.

1. Dishonesty of his attorney, whereby a client is prevented from making a defense to a pending suit, and judgment by default is taken against him, is "unavoidable casualty or misfortune," within the meaning of section 602, Code Civ. Proc.

2. A petition for the vacation of a judgment, under the provisions of section 603, Code Civ. Proc., need not be verified positively.

3. Where it appears from the record that an answer was actually tendered by the plaintiff with his petition for the vacation of a judgment, and was before the court in such a way as to enable the court to pass upon its sufficiency, the fact that it was not formally filed is immaterial.

4. In the absence of a request for special findings, a general finding. in a proceeding to vacate a judgment, is sufficient to support an order of vacation.

(Syllabus by the Court.)

Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Slabaugh, Judge.

Action by Charles Karbach and another against Anthony & Co. From a judgment in favor of plaintiffs, defendants bring error. Affirmed.

B. N. Robertson, for plaintiffs in error. E. J. Cornish, for defendants in error.

ALBERT, C. This action was brought by Charles Karbach and Louis Raapke against Anthony & Co., to vacate a judgment in favor of the latter and against the former rendered at the preceding term of the district court. A trial was had, resulting in a finding in favor of the plaintiffs and an order vacating the judgment and granting a new trial. The defendants bring the case here on

error.

That portion of the petition which states the grounds upon which a vacation of the judgment is sought is as follows:

"Plaintiffs further allege that, immediately upon being served with summons in said action, they went to the office of one an attorney at law, in the city of Omaha, and practicing in all of the courts of said state, and retained and engaged said attorney to represent them in said action, and stated to said attorney their defenses to said cause of action, and further requested said to correspond with all other defendants in said action and notify them of the pendency of said action. Said accepted said employment, and promised plaintiffs herein that he would attend to said action, and would represent plaintiffs therein, and would do all things necessary to be done to protect

and care for the rights and interests of the plaintiffs in said action, and, further, would notify all other defendants that said action was pending. Plaintiffs further allege that several times following said agreement with said

and prior to the rendition of judgment in said action, they were informed by said

that he had notified the other defendants in said action, as promised by him, and had received instructions from said parties to settle said case; that he had made investigation of the facts of said action, and had prepared and filed an answer in said action, and had done all other things necessary to protect the rights and interests of these plaintiffs in said action. Plaintiffs further allege that on the 3d day of July, 1899, being one of the days of the May, 1899, term of said district court, the above-named defendants, E. & H. T. Anthony & Co., procured a judgment of default to be entered against these plaintiffs in said action, and, further, a judgment against these plaintiffs in the sum of two thousand two hundred eleven dollars, twenty-five cents ($2,211.25), and costs of suit, all without the knowledge and consent of these plaintiffs. Plaintiffs further allege that said May, 1899, term of said court came to an end on the 31st day of July, 1899. They were not informed, nor did they know, that judgment had been entered in said cause until several days thereafter, to wit, about the 5th day of August; that then they also learned that said had not notified their codefendants in said action, nor had he made any appearance whatever in said action on the part of these plaintiffs, nor had he prepared or filed any answer in said action for these plaintiffs, but had wholly failed and neglected to perform any part of his duties as attorney for these plaintiffs in said action. Plaintiffs further allege that they relied wholly and implicitly upon the agreement made with said

to represent them in said action, and to interpose their defense therein, and relied upon the statement made to them by said -, prior to the rendition of judgment in said action, that he had done all things necessary for the protection of the rights of these plaintiffs therein."

The defendants first insist that this case must be reversed because of the insufficiency of the petition. The sufficiency of the petition is challenged on three grounds, which we will consider in their order. First. Because the facts stated therein are insufficient to entitle the plaintiffs to a vacation of the judgment, in that such facts do not bring the case within any of the grounds specified in section 602 of the Code of Civil Procedure, which provides for the vacation of judgments after the term at which they have been rendered. One of the grounds specified in that section is unavoidable casualty or misfortune, preventing the party from prosecuting or defending. The word "casualty" means accident; that which comes by chance,

or without design, or without being a fore seen contingency. The word "misfortune" means il luck; il fortune; calamity; evil or cross accident. We do not believe it requires any stretch of language to hold that one who has suffered by the dishonesty of his attorney, an officer of the court, as shown by the record in this case, is a victim of casualty and misfortune, as above defined. Where any injury or mishap befalls one, through unforeseen circumstances, which cannot ordinarily be guarded against, it is misfortune. Ex parte Burgess, 57 Law T. (N. S.) 200. The supreme court of Iowa, in Ennis v. Association (Iowa) 71 N. W. 426, held, where a party to an action employed an attorney, who filed an answer therein and agreed to appear and defend, and who absconded five days before the case was tried, and the case was tried, submitted, and a decree rendered without the knowledge of such party thereof, or of the absence of his attorney, that such facts constituted unavoidable casualty and misfortune, and entitled such party to have the decree set aside. On principle, the case just cited is not distinguishable from the case at bar. Second. Because the petition is not verified as required by section 603 of the Code of Civil Procedure. The verification, omitting the caption and jurat, is as follows: "Charles J. Karbach, being first duly sworn, says he is one of the plaintiffs in the above-entitled action; that he knows the contents of the foregoing petition; and that the allegations therein contained are true, as he verily believes." The objection urged against the verification is that it is not in positive form. The provisions of section 603 do not differ from those of section 113, which provides for the verification of the petition in an ordinary action. That the verification would be good under section 113 will be conceded. We can see no good reason why it should not be held good under section 603. We have not overlooked Lander v. Abrahamson, 34 Neb. 553, 52 N. W. 571, where, in the body of the opinion, it is held that the petition, in an action of this kind, must be verified positively. good reason is given there for the rule announced, nor was the point directly involved in the case. It is entirely omitted from the syllabus. In our opinion, it does not state the correct rule of practice, and should not be followed. In our opinion, the verification in this case is sufficient. Third. Because no answer was tendered with the petition. The sufficient answer to this is that an answer was tendered with the petition. It is true it was not filed in the case as pleadings are usually filed; nor are we sure that it should have been. But it appears from the bill of exceptions that it was tendered with the petition as the answer of the defendants, and was before the court at every stage of the proceedings, whereby the court was enabled to judge of the sufficiency of the defense upon which the plaintiffs expected to rely

No

in the event that the judgment was vacated and a new trial was granted. That is the only purpose of requiring the plaintiffs to tender an answer with their petition.

It is next urged that the findings of the court are not sustained by sufficient evidence. It would serve no useful purpose to review the testimony at length. It will suffice to say that we have examined it with some care, and are satisfied that it is amply sufficient to sustain the material allegations of the petition, and shows conclusively that the defendants were the victims of casualty and misfortune, as herein before defined, whereby they were prevented from making a defense to the action.

Complaint is made of the findings of the trial court because they do not show the grounds upon which the order vacating the judgment was made. The findings are general. We know of no rule of practice that requires the court to make specific findings, in the absence of a request therefor. No such request was made in this case. Consequently, the general finding is not only sufficient to sustain the order, but is in conformity with the settled rule of practice.

We discover no error in the record, and therefore recommend that the judgment and order of the district court be affirmed.

AMES and DUFFIE, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment and order of the district court is affirmed.

FRAAMAN v. FRAAMAN. (Supreme Court of Nebraska. April 17, 1902.) JUDGMENT-COLLATERAL ATTACK-JUDGMENT FOR ALIMONY-LIEN ON HOMESTEAD-EXECUTION SALE OF REALTY-POWER OF APPRAISERS-ADJOURNMENT OF SALE.

1. Where a district court has acquired jurisdiction it has the right to decide every question which arises in the case, and its orders and judgments, however erroneous, cannot be collaterally assailed. Such errors can only be taken advantage of by proceedings in error or appeal to this court.

2. A judgment for alimony in favor of the wife rendered in an action for divorce against the husband is a lien upon the family homestead, the title whereof is in the husband. Best v. Zutavern, 74 N. W. 64, 53 Neb. 604, followed. 1

3. Where appraisers have been appointed to fix the value of the judgment debtor's interest in land for the purpose of judicial sale, they have no power, under section 491b of the Code, to deduct or apportion, according to area, liens upon an entire tract, for the purpose of determining the judgment debtor's interest in a distinct parcel of the entire tract.

4. There is no provision of the Code authorizing an adjournment of an execution sale. (Syllabus by the Court.)

Commissioners' opinion. Department No. 1. Appeal from district court, Buffalo county; Sullivan, Judge.

1 See Homestead, vol. 25, Cent. Dig. § 161; 1898 Dig. 51 [b].

Action for divorce by Christina Fraaman against Swan N. Fraaman. From an order confirming the sale of real estate to satisfy a judgment for alimony, defendant appeals. Reversed.

Frank E. Beeman, for appellant. J. M. MacFarland and W. L. May, for appellee.

DAY, C. On April 5, 1898, in the district court of Douglas county, the appellee obtained a decree of divorce from appellant, and a judgment for alimony in the sum of $650,-$500 for herself, and $150 for an attorney's fee. A transcript of this judgment was filed in the office of the clerk of the district court of Buffalo county, and an execution issued thereon, and levied upon certain real estate of the appellant. The premises were appraised, advertised for sale and sold, and the sale confirmed. From the order confirming the sale, the appellant brings the case to this court by appeal.

A number of objections, both to the ap praisement and the confirmation of the sale, were urged; and, as some of them may again arise in the further proceedings of this case, we deem it proper to pass upon them now.

The first objection to the confirmation was that the decree which formed the basis of the sale was a nullity. This contention is based upon the fact that the appellant was not permitted to defend or introduce any evidence in his behalf upon the trial because he had failed to comply with the order of the court requiring him to pay temporary alimony and attorney's fees. Whatever might be the views of this court upon the question thus sought to be raised, had an appeal or error been taken from the judgment of the lower court, it seems clear to us that this question cannot now be raised by an objection to the sale. If it was an error of the trial court, advantage of it could only be taken by a direct proceeding by error or appeal to this court. The rule is well settled that, where a court has acquired jurisdietion, it has the right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed. If the appellant felt himself aggrieved by the rulings and orders of the trial court, and desired to have them reviewed by this court, he had a plain and adequate remedy by an appeal or error proceedings. He did, in fact, appeal to this court, but dismissed his appeal before the case was reached in its order.

The next objection urged is that the property sought to be sold is the homestead of the appellant. The testimony tends to show that appellant and one of his minor children were occupying the premises as a home. The testimony as to the homestead character of the premises is not very clear. But granting that it were sufficiently established, still the objection would not be good. This court has held in Best v. Zutavern, 53 Neb. 604, 74 N. W. 64, that a judgment for alimony in fa

vor of the wife, rendered in an action for divorce, is a lien on the family homestead, the title whereof is in the husband. Justice Sullivan, the writer of that opinion, says: "The husband's right to an exempt homestead cannot, we think, be asserted against the wife who has been forced by his aggression to leave his domicile, and who, in an action for divorce, has obtained a judgment for alimony against him. The homestead law is a family shield, and cannot be employed by either spouse to wrong the other. The supreme court of Kansas, under a statute which authorized the court, upon granting a divorce, to award the wife such share of the husband's real or personal estate as shall be just and reasonable, held that the court has power to award the wife possession of the family homestead, the title to which was in him. Brandon v. Brandon, 14 Kan. 342. And in a later case it was decided by the same court that a decree which was declared to be a lien on all the husband's realty was a valid lien on the family homestead. Blankenship v. Blankenship, 19 Kan. 159. The logic of these decisions is that exemption statutes are not designed to protect the husband against the wife's claim for alimony. To the same effect are the cases of Mahoney v. Mahoney, 59 Minn. 347, 61 N. W. 334, and Daniels v. Morris, 54 Iowa, 369, 6 N. W. 532."

An objection was urged to the appraisement, and particularly to the manner in which the appraisers arrived at the value of appellant's interest in the land. The levy was made upon 160 acres described, in three tracts, as follows: "West half of the northeast quarter and the southeast quarter of the northeast quarter and the northeast quarter of the northeast quarter of section 13," etc. The certificates of liens furnished by the register of deeds and the county treasurer pursuant to the request of the sheriff showed two mortgages and some unpaid taxes upon the whole quarter section. In determining the value of appellant's interest in the west half of said quarter section, the appraisers deducted from the gross valuation of said west half an amount equal to one-half the face value of the two mortgages and taxes. The same method was followed with reference to the two 40-acre tracts in the east half of said quarter section. In other words, the appraisers apportioned the several liens upon the three parcels of land levied upon in proportion to area. The only authority that the appraisers have for deducting prior liens is that given by section 491b of the Code of Civil Procedure, which provides that the appraisers "shall deduct from the real value of the lands and tenements levied on, the amount of all liens and incumbrances for taxes or otherwise. prior to the lien of the judgment under which execution is levied, and to be determined as hereinafter provided, and which liens and incumbrances shall be spe

cifically enumerated and the sum thereafter remaining shall be the real value of the interest therein of the person, or persons, or corporation against whom or which the execution is levied." This authority to deduct the amount of all liens does not confer the right on the appraisers to deduct a part of the liens, or apportion them upon the several parcels of the entire tract. We think the action of the appraisers in apportioning the liens for the purpose of determining the value of appellant's interest was beyond their power.

Another objection to the confirmation was that the sale was duly advertised to be made on September 26, 1899, at 10 o'clock, but the return shows that it was made on September 27, 1899, at 10 o'clock. There is nothing in the record showing an adjournment of the sale, if, indeed, an adjournment could properly be made, and no order of the court was entered with reference thereto. It appears in the briefs that the sale was not made on account of the pending of an injunction, which on September 26th had not been finally determined. There are no statutory provisions for an adjournment of an execution sale either by the court or the sheriff. Section 497 of the Code expressly provides that lands and tenements taken upon execution shall not be sold until the officer cause public notice to be given of the time and place of sale, at least 30 days before the date of sale, and further provides that "all sales made without such advertisement shall be set aside." These provisions of the statute are mandatory, and must be complied with. When the sale did not take place on the 26th, as provided in the notice, it should have been readvertised.

There are a number of other objections urged in the briefs of counsel for appellant, but, as they are not likely to occur upon a reappraisement and sale of the property, they will not be considered.

We therefore recommend that the judgment of confirmation and the appraisement be set aside, and the cause remanded for further proceedings.

HASTINGS and KIRKPATRICK, CC.,

concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of confirmation and the appraisement is set aside, and the cause remanded for further proceedings. Reversed and remanded.

LAING V. EVANS et al.

(Supreme Court of Nebraska. April 17, 1902.) ESTOPPEL REPRESENTATION — FRAUD тоWARDS CREDITORS CLOTHING DEBTOR WITH APPARENT OWNERSHIP - ENHANCEMENT OF CREDIT.

1. An estoppel by representation does not arise where there is no intention, and could

be no reasonable expectation, that such representation was to be acted upon.

2. Making a lease as "authorized agent" for her husband by a married woman, in whose name title of record to the lauds in question had stood for eight years, is not such representation as estops her to claim title against the notary acknowledging the lease, who more than two years thereafter loaned money to the husband, supposing he owned the lands.

3. Acts of a husband in leasing lands and taking notes to himself for rent, where the title of record remained all the time in the wife, do not show such ostensible ownership in him as to preclude her from claiming title against his creditors.

4. A wife, who in 1881 procured her husband to buy from the state school land for her in his own name, who leaves the contract in his name until 1896, when the state is paid from proceeds of sale of part of the land, and deed made to her, and who has in the meantime permitted the husband to lease the land, take notes for rent in his own name, and manage it as his own, is estopped to claim, as against a creditor who has, with knowledge of such management, but with no actual knowledge of the contract, loaned the husband money in 1894 on the faith of his ownership of the land. 1

(Syllabus by the Court.)

Commissioners' opinion.

Department No. 1.

Appeal from district court, Douglas county; Fawcett, Judge.

Action by William F. Laing against E. D. Evans and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed in part and reversed in part.

Howard B. Smith, for appellant. F. L. Sumpter, Wilson & Brown, and Crane & Crane, for appellees.

HASTINGS, C. May 22, 1897, William F. Laing, plaintiff, commenced an action in Douglas county to subject 221⁄2 acres of the west half of the northwest quarter of section 16-16-10, to the payment of a judgment of the district court of Lancaster county recovered by plaintiff against defendant E. D. Evans, May 28, 1896, for $2,154.40, with interest and costs. It was also sought to subject to the same judgment the southwest quarter of said section 16, except 209/10 acres conveyed to L. D. Smith, and also the northwest quarter of the northwest quarter of section 21, township 16, range 10. The judgment above mentioned was rendered upon a promissory note dated July 23, 1895, which was itself a renewal of one originally made June 29, 1894, and executed by the defendant Evans, together with four other parties, in consideration of a loan. The southwest quarter of section 16 was acquired by purchase from the state in June, 1871. It was originally purchased in the name of E. D. Evans. 1883 a deed of this land by the state of Nebraska to Mrs. Evans was made and recorded. July 10, 1890, Mr. Evans and his wife deeded to one L. D. Smith 20.9 acres of this land. The remainder still stands in the name of Mrs. Evans. March 24, 1881, Mr. Evans bought in his own name from the state the

In

1 See Estoppel, vol. 19, Cent. Dig. § 191; 1898 Dig. § 28.

west half of the northwest quarter of the same section. This contract remained in his name until January 13, 1896, when it was assigned by her husband to Mrs. Evans, and a deed of the land made by the state to her and recorded. June 19, 1884, one Williams conveyed to Mrs. Evans, by deed then recorded, the northwest quarter of the northwest quarter of section 21, township 16, range 10. This is alleged to have been purchased and paid for by E. D. Evans and a conveyance made to Mrs. Evans for the purpose of defrauding his creditors. The claim of plaintiff is that all of the land was the property of E. D. Evans, and the ownership of the wife colorable merely, and held for his benefit. It is also claimed that by her holding her husband out as the owner, and by leaving him in control of the property, and by acquiescing in his claim of ownership, the wife has estopped herself from claiming to own the land as against the plaintiff. The loan is alleged to have been made on the credit of the husband's ownership of all this land. The wife answered, denying the incurring of the indebtedness to plaintiff and the recovery of his judgment; admitted her relationship to E. D. Evans; denied that he was the owner of the contract with the state for the west half of the northwest quarter of section 16 on June 29, 1894, or afterwards, but claimed ownership herself; admitted the sale of 572 acres of the land to Merriwether, and says that it was sold in good faith long before the incurring of any indebtedness to plaintiff. She denies that any of the premises were paid for by E. D. Evans, but says the consideration was paid by herself. She says that the lands, from the time of their purchase from the state and from Williams until the removal of the family to Lincoln, in 1891, were not in her husband's possession, but in her own, except in so far as he lived with her upon them and assisted in working them, and that any control, renting, or collection of the rents for the premises, exercised by him at any time, was as her agent. It is now conceded that E. D. Evans was one of the signers of the note executed June 29, 1894, to the plaintiff for $2,725, and that judgment was rendered upon a renewal of that note, as claimed by plaintiff, and execution returned "No property," and that the judgment remains unpaid. The questions arising in the case are as to the ownership of the three portions of land, and whether or not Elizabeth Evans is estopped from claiming title to them.

In 1885 E. D. Evans seems to have recovered a judgment in his own name for trespass and injury to timber on this land. After 1890 the leases of the land seem to have been generally made out by E. D. Evans in his own name. In 1892 Mrs. Evans seems to have executed a lease to Charles Parson as the agent of E. D. Evans, and to have signed the lease in that way. The rents seem generally to have been paid to Mr. Evans,