that, therefore, the plaintiffs in error are not liable upon their contract of guaranty until the incorporated bank had failed, after exhausting its legal remedies, to collect the Jansen note; and that the only evidence of the noncollectibility of the Jansen note is the return of an execution unsatisfied, issued on a judgment rendered against Jansen on his note; and that, as the bank had not prosecuted the Jansen note to judgment, and tried to collect it by execution, and failed, the judgment against the plaintiffs in error on their guaranty cannot stand. It has been held that the guarantor of the collectibility of a note cannot be sued until legal proceedings to enforce its collection have been taken against the maker of the note. Bosman v. Akeley, 39 Mich. 710. But the contract entered into by the plaintiffs in error with the incorporated bank was not a guaranty of the collectibility of the paper transferred by them to the bank, but it was a guaranty of payment. The case of McMurray v. Noyes, 72 N. Y. 523, cited by plaintiffs in error to sustain their contention that their contract was one of collectibility, is not authority for the contention in support of which it is cited. In that case the contract was that, in case of foreclosure and a sale of the mortgaged premises, the proceeds should prove insufficient to satisfy the debt which the mortgage secured, the guarantor would pay the deficiency, and the court very properly held that that was a guaranty of collection.

The briefs criticise the action of the court in its instructions to the jury and in the admission and rejection of evidence. After a careful examination of the record, we have reached the conclusion that the district court committed no error in the respects indicated prejudicial to the plaintiffs in error. Indeed,

we think the verdict and judgment rendered are the only ones that could stand under the evidence in the record. The judgment of the district court is right, and is in all things affirmed. Affirmed.

NORVAL, J., not sitting.

MOLINE MILBURN & STODDARD CO. v. HAMILTON et al.

(Supreme Court of Nebraska. Sept. 23, 1898.)

APPEAL-REVIEW-INTERVENTION-PLEADING INTEREST.

1. A third person filed a petition of intervention in a replevin case in the county court. He obtained leave to do so, but at the time of judgment his petition was dismissed, after a finding for plaintiff. Held, that this was an adjudication of the merits against him, and he might appeal from the judgment.

2. An objection that by the default of one of two joint appellants the appeal failed as to both, not examined, because preserved only by objecting to the evidence on the trial.

4. An interest in the intervener is a traversible fact, and in a case appealed from the county court the assertion of such interest in the pe tition of intervention in the county court does not excuse the failure to plead it, and so tender an issue in the district court.

(Syllabus by the Court.)

Error to district court, Douglas county; Blair, Judge.

Action by the Moline Milburn & Stoddard Company against the B. H. Osterhoudt Spring Wagon Manufacturing Company and Samuel Hamilton, Garwood P. Butts intervener. From the judgment, plaintiff brings Reversed.

error.

James H. McIntosh, for plaintiff in error. B. N. Robertson, for defendants in error.

IRVINE, C. The Moline Milburn & Stoddard Company sued out from the district court of Douglas county a writ of replevin for certain wagons. The B. N. Ousterhoudt Spring Wagon Manufacturing Company and Samuel Hamilton were made defendants. No service was obtained on the Ousterhoudt Company. The wagons were taken under the writ from Hamilton, and delivered to plaintiff. Garwood P. Butts intervened by petition, asserting a lien as warehouseman. On the trial in the county court there was a finding for plaintiff, an order dismissing the petition of intervention, and judgment for plaintiff. Hamilton and Butts filed a joint appeal undertaking, and took the case to the district court, where the plaintiff filed its petition against the original defendants alone. Hamilton made default. Butts answered the petition by denying all its averments except as to the value of the property. On the trial the plaintiff objected to the introduction of any evidence on behalf of Butts. The objection was overruled. the close of the evidence the court peremptorily directed a verdict for Butts for the amount which his testimony showed was due him. The plaintiff tendered an instruction that it was entitled to a verdict against Hamilton, who had made default. Judgment followed in favor of Butts for a delivery to him of the property, or payment of the amount of his claim. The plaintiff, who brings the case here, asserts that Butts did not become a party, and for that reason should not have been heard. We do not think the record bears that construction. It shows that in the county court Butts was given leave to file his petition of intervention. The order at the time of judgment dismissing it was not a refusal to permit him to be heard, but a final judgment against him on the merits of his claim, from which he had a right to appeal.

At

It is also argued that, the appeal being joint, and Hamilton having made default, the whole appeal fell. We do not consider this, because the question could not be properly raised, as was here attempted, by objection to evidence on the trial. The same is true of the suggestion, which at once occurs,

whether a defendant and an intervener claiming distinctly from one another can both obtain the position of appellants under a single undertaking. The exceptions to the instructions were well taken. Butts' only pleading in the district court was an answer to the petition, in effect a general denial. The petition asserted nothing against him. It alleged that plaintiff was the owner and entitled to the possession of the chattels, and that Hamilton and the Ousterhoudt Company unlawfully detained them. These were the material averments traversed by Butts. Their denial showed no right in the intervener to the property, and could not found a judgment for its delivery to him. The defendant in replevin, it is true, may, under a general denial, show a special interest in himself, where such evidence negatives plaintiff's averment of right of possession and unlawful detention by defendant. But a stranger may not intrude himself into a case without any interest in the subject-matter, and defeat plaintiff by denying his right as against the defendant. Much less may such stranger without interest obtain judgment for a delivery to him of the property in litigation merely by disputing plaintiff's right. The first requisite of an intervention is that the intervener show that he claims an interest in the subject-matter of the litigation. Code Civ. Proc. § 50a. This is well illustrated by two cases of the same title,-Welborn v. Eskey, 25 Neb. 193, 40 N. W. 959; Id., 25 Neb. 195, 40 N. W. 960. Each was replevin, in each there was an intervention, in each the district court had failed to rule on the petition of intervention, and the intervener sought a reversal for that reason. In the latter the judgment was reversed. the former it was affirmed, for the reason that the petition of intervention showed no interest in the intervener, and the error was therefore without prejudice. The assertion of an interest in the original petition of intervention in the county court was not enough. Under our practice new pleadings are filed on appeal. The allegation of an interest in the intervener was a traversible averment, and the intervener should, by appropriate pleadings, have made the aver ment in the district court, and so tendered an issue. As the case stood, the plaintiff was, on the pleadings and proofs, entitled to judgment against Hamilton, and Butts had, under his answer, no standing in court. Reversed and remanded.

In

before the sale. The court made an order that the mortgagor show cause by the 19th why the sale should not be confirmed. He made no further showing. Held: (1) The court was not obliged to pass on the motion to confirm on the 19th; (2) it had a right to consider affidavits filed on or after that date by the mortgagee tending to support the appraisement made; (3) the mortgagor was not entitled to notice of the fil ing of such affidavits; (4) he was not entitled to notice of the time when the court would pass on the motion to confirm; (5) the court could have confirmed the sale, though the mortgagee had never filed an affidavit in support of the appraisement made, as the latter was not assailed by the mortgagor for fraud.

2. An appraisement duly made of real estate for the purposes of a judicial sale cannot be successfully attacked solely on the ground that the property has been appraised too low. To make the low valuation a successful ground of attack on the appraisement, it must be challenged for fraud.

(Syllabus by the Court.)

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

Action by John Nicholas Brown against Mary Ann Fitzpatrick and others. Judgment for plaintiff. Defendants appeal. Aflirmed.

I. J. Dunn, for appellants. Morris, Beekman & Marple and Lake, Hamilton & Maxwell, for appellee.

RAGAN, C. This is an appeal from a judgment of the district court of Douglas county confirming a sale of real estate made in pursuance of a decree of mortgage foreclosure. The property was appraised at $7,700, but before the sale occurred the mortgagor filed objections to the appraisement on the ground that the value placed on the property was too low, and at the same time filed a number of affidavits tending to support his motion. The record discloses no ruling of the district court on this motion prior to the sale. The plaintiff served a notice on the mortgagor that he would on the 12th day of October, 1895, move the court to confirm the sale. On that date the court made an order that the mortgagor show cause by the 19th of the month why the sale should not be confirmed. The mortgagor filed no additional showing against the confirmation. It was not confirmed on the 19th of October. On the 25th, however, the plaintiff filed affidavits tending to support the appraisement made of the property by the sheriff; and on the 26th of said month, without any notice to the mortgagor, and in the absence of himself and counsel, the court confirmed the sale. The appellant complains because the plaintiff was allowed after the 19th of October to file affidavits tending to sustain the appraisement, and that the court considered these affidavits, and made the order on the 26th, in the absence of the appellant, and without notice to him or his counsel. Our views are these:

1. The district court was not obliged to pass on the motion to confirm on the 19th of October. It had a right to consider affidavits filed on that date, or after that date, by the plaintiff, which tended to support the appraisement;

and the appellant was not entitled to be notified of the filing of such affidavits, or of the time when the court would pass on the motion. He had already filed his objections to the appraisement made.

2. The court should have confirmed the sale, even though the plaintiff had never filed an affidavit in support of the appraisement made, as that appraisement was not assailed by the appellant for fraud, and an appraisement duly made of real estate for the purposes of a judicial sale cannot be successfully attacked solely on the ground that the property has been appraised too low. To use the low valuation as a successful basis for attacking the appraisement, it must be alleged and proved that it was fraudulent. Vought V. Foxworthy, 38 Neb. 790, 57 N. W. 538; Mills v. Hamer (Neb.) 75 N. W. 1105. The judgment of the district court is affirmed. Affirmed.

JUDICATA-SALE-PROPERTY CONVEYED.

1. Objections that real estate seized on execu tion has been appraised too high or too low should be made and filed in the court from which the execution issued, before the sale occurs, or such objections will be unavailing.

2. A judgment is an adjudication of the rights of the litigant to the subject-matter of the suit, and in a proceeding to confirm a sale made to satisfy such judgment the district court has no authority to inquire into its merits.

3. A married woman owned a flour mill, and the fee to five acres of land on which it was situate. The mill was operated by water power furnished by a race and dam situate on an adjoining piece of school land, the title to which was in the state, but of which her husband was lessee, and on which land he resided with his family. A sheriff levied an execution upon the mill property, attempted to levy it upon the race and dam as the water power of the mill, caused the mill property and the water power to be separately appraised, in his notice of sale described the mill property and the water power separately, and sold the whole to satisfy a judgment rendered against the husband and wife on a promissory note signed by them. The wife interposed as an objection to the confirmation of the sale her coverture at the time of the execution of the note; that she signed the same as surety for her husband, and without reference to her separate property or business. Held that, though this was a defense which she might have interposed to a suit upon the note, she could not urge it as an objection to the confirmation of the sale. The husband objected to the confirmation of the sale on the ground that the mill race and dam, constituting the water power of the mill, were part of his homestead, and therefore not liable to sale on execution. Held: (1) That no part of the husband's leasehold interest in the school land passed by the sale; (2) that the mill dam and race were easements upon the fee of the school land; (3) that the sale of the mill property carried these easements with it, as appurtenances; (4) that the separate appraisement and advertisement of the mill and water power, while proper enough, were not essential.

(Syllabus by the Court.)

Error to district court, Madison county; Norris, Judge.

Action by F. J. Hale against John D. Hoover and Luella J. Hoover. Judgment for plaintiff. From an order confirming a sale on execution, defendants bring error. Affirmed.

S. O. Campbell, for plaintiffs in error. Reed & Gross, for defendant in error.

RAGAN, C. To an understanding of the points decided in this case, a brief statement of the facts is essential. In June, 1891, in the county court of Madison county, F. J. Hale recovered a judgment against John D. Hoover and Luella Hoover, his wife, on a promissory note executed by them. It seems that this note was not given by Mrs. Hoover with any reference to her separate estate, trade, or business, nor did she intend to bind her separate estate for its payment; that she received no consideration for signing said note, but executed the same as surety for her husband. A transcript of this judgment was duly filed and docketed in the office of the clerk of the district court of said county, and subsequently an execution issued thereon. Under this execution the sheriff levied upon some five acres of land in a certain section 31, the property of Mrs. Hoover. On this land, and constituting its chief value, was a flour mill. The mill was operated by water power. This was furnished by a dam and race situate on a part of a certain section 36, the fee-simple title to which land was in the state of Nebraska. John D. Hoover and his family occupied this land as their homestead under a lease from the state. The sheriff levied or attempted to levy the execution in his hands upon this mill race, dam, and water power on the school land, had the same separately appraised and advertised, and, in the sale made under the execution, not only sold the five-acre tract on which the mill was situate, but in express terms included in said sale the race, dam, and water power of the mill. After the sale had been made, Hoover and his wife appeared in the district court of Madison county, and objected to the confirmation of the same. The objections were overruled, the sale confirmed, and they have filed a petition in error here to review the confirmation judgment.

1. It is first insisted that the property was appraised too low; that it was worth at least twice the sum at which it was appraised. But the plaintiffs in error filed in the district court no objections to the appraisement made of the property until after it had been sold. After the sale was made, it was then too late for the plaintiffs in error for the first time to question the appraisement on the grounds that the same was too low. Objections that real estate seized on execution has been appraised too high or too low should be made and filed in the court from which the execution issued, before the sale occurs, or such objections will be unavailing. Mills v. Hamer, 54 Neb. 75 N. W. 1105, and case cited.

2. A contention of Mrs. Hoover's is that the district court should have set aside the sale because she made it appear on the hearing

of the objections to the confirmation that she received no consideration for the note which she had signed with her husband; that it was not signed by her with reference to her separate estate, trade, or business. But this is an argument that Mrs. Hoover was entitled, on the hearing of objections to the confirmation of the sale, to interpose and have deter nined a defense which she alleged she had to the action in which the judgment was rendered, and under which judgment the sale occurred. But the record of the judgment on which the sale under consideration was based disclosed upon its face that the county court had jurisdiction of the subject-matter and of the parties to the suit in which that judgment was rendered. The district court then was without authority to entertain an objection to the confirmation of the sale, which objection was simply a defense which Mrs. Hoover might have interposed to the action against her in the county court. That judgment determined the rights of the parties to that suit, and in the proceedings to confirm the sale of real estate made to satisfy such judgment, and the district court was without authority to investigate the merits of that judgment. Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N. W. 1059.

3. As already stated, the tract of school land on which were the mill race, dam, and water power of the mill of Mrs. Hoover was occupied by Mr. Hoover and his family as a homestead; and he complains of the refusal of the district court to set the sale aside because he alleges that this homestead, being less in quantity than 160 acres, and less in value than $2,000, and not being in any incorporated municipality, was not liable to be taken and sold on execution. Mr. Hoover's contention that his homestead was not liable to sale on execution is conceded, but, as we view the case, no part of his homestead was sold under this execution. In the first place, the feesimple title to this school land was in the state, and Hoover was a mere tenant; and the sale made by the sheriff did not have the effect, and was not intended to have the effect, of devesting Hoover of his leasehold interest in this school land. The mill race, the water power, and dam were appurtenances of the mill of Mrs. Hoover; and by the sale of the mill they passed, as such appurtenances, to the purchaser. These appurtenances constituted an easement on the school land, and we suppose that the right to construct and maintain this easement on this school land had been granted to Mrs. Hoover or her grantors by the owner of the fee of the school land; and Hoover, when he became lessee of the school land, held subject to this easement. The sheriff's causing the race, dam, and water power on the school land to be separately appraised and described in express words in his proceedings of sale, while proper enough, were by no means essential, as this race, dam, and water power were appurtenances belonging to the mill property, and a sale and conveyance

of that property, either voluntarily by the owner, or involuntarily by judicial process, would have invested the purchaser with the appurtenances, had they not been mentioned or described in the conveyance or proceeding. Witte v. Quinn, 38 Mo. App. 692; Riddle v. Littlefield, 53 N. H. 503; Jackson v. Trullinger, 9 Or. 393; Huttemeier v. Albro, 18 N. Y. 48; Morgan v. Mason, 20 Ohio, 402; Comp. St. c. 73, § 50; Code Civ. Proc. §§ 499, 500.

We conclude, therefore, that the mill race, dam, and water power were not included in John D. Hoover's leasehold interest in the school land, and that these constitute an easement upon that land and the appurtenances of the mill property which belonged to Mrs. Hoover. The judgment of the district court is affirmed.

1. An appeal to an equity case will not present to this court for review the rulings of the trial court excluding or admitting evidence.

2. Section 99, art. 1, c. 14, Comp. St., authorizes the boundaries of a village to be extended so as to include adjacent lands, where either they will be materially benefited from the annexation, or justice and equity require that it be done.

3. Under said section the corporate limits of a village may be extended so as to embrace contiguous territory which is in such close proximity to the platted portion as to have some unity of interest therewith in the maintenance of municipal government.

4. Contiguous territory may be annexed, though the same may not have been subdivided into tracts of 10 acres or less.

(Syllabus by the Court.)

Appeal from district court, Otoe county; Chapman, Judge.

Action by the village of Syracuse against Jesse S. Mapes and others. Judgment for plaintiff. Defendants appeal. Affirmed.

M. L. Hayward and F. E. Brown, for appellants. John C. Watson, for appellee.

NORVAL, J. The village of Syracuse presented its petition to the district court of Otoe county for the annexation of certain territory to the corporate limits of said village, and from a decree annexing a portion of the lands described in the petition the defendants have appealed.

It is insisted that the trial court erred in admitting the testimony of M. C. Joyce and J. H. Arand, respectively, relating to the occupations of the defendants. The rulings in question are not now available as grounds of reversal, since the cause was not brought to this court by proceedings in error, but on appeal. An appeal in equity will not present for review rulings on the exclusion or admission of evidence. Ainsworth v. Taylor, 53 Neb. 484, 73 N. W. 927. Moreover, the cause was tried without the assistance of a jury,

and the admission of improper evidence is not in itself a ground for reversal. Stabler v. Gund, 35 Neb. 648, 53 N. W. 570; Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15; Pearce v. McKay, 45 Neb. 296, 63 N. W. 851; Tolerton v. McClure, 45 Neb. 368, 63 N. W. 791; Insurance Co. v. Walter, 51 Neb. 182, 70 N. W. 938. The decree is assailed as being wholly unsupported by the evidence. The suit was Instituted under and in pursuance of the provisions of section 99, art. 1, c. 14, Comp. St. 1895. This section authorizes the extension of the boundaries of a town or village so as to include adjacent lands, against the consent of the owner or owners, whether such territory has been subdivided into tracts or parcels of 10 acres or less, or has not been so subdivided, in case the same would receive material benefits or advantages by its annexation to the corporation, or justice and equity require such annexation to be made. There was evidence conducing to show the location of the territory proposed to be annexed, its close proximity to the platted portion of the village and the streets and sidewalks therein; that between 100 and 200 persons reside on the lands sought to be annexed; also the population of the village, its improvements and surroundings, its advantages as a trading point, and for educational and church purposes; and that the lands in question represented the growth of the village beyond its limits, and would receive material benefits extending the boundaries of the village so as to include the same. On the other hand, there was testimony of a very convincing character to the effect that annexation to the corporation of these lands would be a substantial detriment and damage to their respective owners, instead of a benefit to them. The writer is unable to discover how, in any way, the territory in question would be benefited by the annexation, as it now practically receives all the advantages and benefits as if the same was within the boundaries of the village. It has been held that under section 99 the corporate limits of a village may be extended to include adjacent lands in such close proximity to the platted portion as to have some unity of interest therewith in the maintenance of municipal government. State v. Dimond, 44 Neb. 154, 62 N. W. 498; City of Wahoo v. Tharp, 45 Neb. 563, 63 N. W. 840. This case is within the rule just announced, and, while the adjacent lands may not be materially benefited by their annexation, justice and equity require that the corporate limits of the village be extended to include said territory. The section mentioned authorizes the annexation to a village of contiguous territory upon the ground of material benefits and advantages to flow from such annexation, or because justice and equity require that the boundaries of the corporation be extended so as to include such territory. Village of Hartington v. Luge, 33 Neb. 623, 50 N. W. 957.

It is urged that, as the tract belonging to

Mr. De Long, one of the defendants, contains more than 10 acres, no portion thereof can be annexed to the village under the section of the statute in question. That section contains no such limitation of the power to extend the boundaries of the village. It reads: "When any city or village shall desire to annex to its corporate limits any contiguous territory, whether such territory be in fact sub-divided into tracts or parcels of ten acres or less, or be not so sub-divided, the council or board of trustees of said corporation shall vote upon the question of such annexation," etc. It is perfectly plain that contiguous territory may be annexed although the same may not have been subdivided into tracts of 10 acres or less.

Another argument is that all the land lying east of the village should not have been annexed as portions thereof are not contiguous to, but are separated from, the corporate limits by a narrow strip on the east side of the village and a public highway. There is some evidence to support this contention, while the maps or plats put in evidence disclose that the territory on the east extended to the eastern boundary of the village. It is disclosed that the lands on the north and east of the village adjoin and those on the north touch the north boundaries of the corporation, hence all the territory in question is contiguous to the village, within the meaning of the statute. The decree has some support in the evidence, and it is affirmed.

STATE ex rel. SOCIETY OF THE HOME FOR THE FRIENDLESS v. CORNELL, Auditor.

(Supreme Court of Nebraska. Sept. 23, 1898.) CLAIMS AGAINST STATE-EXAMINATION BY STATE AUDITOR-REFUSAL-MANDAMUS.

1. Under the constitution, every claimant against the state has the right to have the auditor examine and pass upon his claim, and to appeal to the district court an adverse decision.

2. The statutes conferring power on other officers to examine claims, and requiring the approval of such other officers before the claim is paid, are at the most requirements as to evidence. They cannot deprive the auditor of the power of passing on the claim, or the claimant of the right to appeal.

3. The auditor is required to keep a record of his action on claims. A memorandum made on a voucher returned to the claimant is not such a record.

4. The auditor, if his records are by mistake or otherwise made to incorrectly state his action, may correct them by making them show what was actually done.

5. If the auditor refuses to examine or pass upon a claim, this court will not examine into the merits of the claim as a means of determining whether action would be available to the claimant. It will compel action, and leave the merits to be examined in the manner approved by law.

(Syllabus by the Court.)

Application by the state, on the relation of the Society of the Home for the Friendless,