herein was not in the slightest degree responsible, an action was commenced before Justice Levy in the name of Charles Kaufmann, and by virtue of an order of delivery issued therein the property in question was taken from the possession of the constable. Kaufmann neither had nor claimed any title, right, or interest in or to the property, and the action was commenced without his knowledge or consent. While the action was pending he was informed of the fact by the justice of the peace and the attorney for the defendant, and to both of them he promptly disclaimed having any interest in the suit, and disavowed the acts and denied the authority of Elliott in the premises. Presuming, doubtless, that the action would be then abandoned, he gave it no further attention, and was entirely ignorant of the steps subsequently taken to prosecute it to final judgment. The house was not delivered to him on the writ of replevin; he did not sign the affidavit, nor furnish the statutory bond; he did not know Mr. Elliott, and seems to have had neither social nor business relations with Hanuse, except that, as agent for an investment company, he had, some years before, negotiated a loan for him on the dwelling house in question and the lot on which it then stood. The justice, when the case came on to be heard, refused to take any further action therein, for the reason that it was commenced and was pending without Kaufmann's authority or sanction. He informed Mr. Elliott and Mr. Lane, the attorney for the defendant, that if the case was to be further prosecuted they had better take a change of venue. Accordingly the venue was changed on June 30, 1893, and afterwards a motion was made on behalf of the defendant to dismiss the case on the ground that Mr. Elliott was not the authorized attorney of the plaintiff. It does not appear that the motion was supported by proper evidence, and the justice overruled it. On August 1st the cause, having been previously heard, was submitted to Justice Wilcox, who made the following finding: "August 1, 1893, 2 o'clock p. m., cause submitted to me by the parties upon briefs. I find upon the proofs made before me on the trial of this action that the value of the property taken upon the writ of replevin herein and delivered by the constable to the plaintiff exceeds the sum of $200.00. I therefore decided that I have not jurisdiction of this action, and I certify proceedings upon the said writ to the district court of Douglas county." On May 24, 1894, a certified transcript of the proceedings before the justice, together with the original papers, was filed by Mr. Elliott in the office of the clerk of the district court. Here an abortive attempt at intervention was made by Augusta Hanuse, and eventually a judgment was rendered against Kaufmann, there being no effort made at the trial to establish his alleged right of possession. To secure the cancellation of this judgment, and to en

join the threatened enforcement of an execution issued thereon, are the purposes for which this action was brought. The decree of the district court dismissed the petition, and the plaintiff brings the record here for review by appeal.

There are two grounds on which it is sought to vindicate the action of the trial court. It is first claimed that it was the duty of the plaintiff, upon being informed of the pendency of the action, to appear before Justice Levy, and file a formal disclaimer, and that it was not enough to merely inform the defendant and the justice that the case was not his, and did not concern him. The writer is of opinion that, under the circumstances, no such obligation rested upon Mr. Kaufmann; but a decision of the point is unnecessary to a proper disposition of the case, and we therefore do not decide it. Section 1039 of the Code of Civil Procedure is as follows: "Whenever the appraised value of the property so taken shall exceed two hundred dollars, the justice shall certify the proceedings upon the said writ to the district court of his county, and thereupon shall file the original papers, together with a certified transcript of his docket entries, in the clerk's office of the said court; the case there to be for trial at the first term of said court on the original papers without further pleadings, except by the leave of the court granted on sufficient showing." The word "thereupon," as used in this section, is an adverb of time, and signifies without delay or lapse of time. And. Law Dict.; Hill v. Wand, 47 Kan. 340, 27 Pac. 988; Putnam v. Langley, 133 Mass. 204; 25 Am. & Eng. Enc. Law, 1058. The language of the statute is imperative. It was the duty of the justice to transmit the files and transcript to the district court with reasonable dispatch, so that the cause might be tried at the term next ensuing. He had no limitless discretion in the matter; and the fact that no effort was made to enforce the performance of the duty imposed on him by the statute clearly indicates that the proceeding was abandoned. By the failure to transmit the record to the district court for a period of nearly 10 months the action abated, and was at an end, as effectually as though the plaintiff had appeared and procured an order of dismissal to be entered therein. The action in the district court was a new action; the jurisdiction was original, and not derivative. Thompson v. Church, 13 Neb. 287, 13 N. W. 626; Lydick v. Korner, 13 Neb. 10, 12 N. W. 838; Austin v. Brock, 16 Neb. 642, 21 N. W. 437; Worley v. Shong, 35 Neb. 311, 53 N. W. 72. That the case was pending in that court, and that it passed to judgment, therefore, cannot be charged to any act or culpable inaction of the plaintiff. There was nothing in his conduct to work an estoppel. The presumption of jurisdiction arising from the appearance of Mr. Elliott as attorney for the plaintiff is not a conclusive presumption; and in this action, which is a direct attack on

the judgment, the fact that the appearance was unauthorized may be shown. Kepley v. Irwin, 14 Neb. 300, 15 N. W. 719; Kirschbaum v. Scott, 35 Neb. 199, 52 N. W. 1112; Hess v. Cole, 23 N. J. Law, 116; Shelton v. Tiffin, 6 How. 163; Reynolds v. Fleming, 30 Kan. 106, 1 Pac. 61. That an action may be maintained to enjoin the enforcement of a void judgment and to secure its cancellation is well established where the following conditions exist, viz. that the judgment is without any legal or equitable basis, that its invalidity is not disclosed by the record, and that there is no adequate remedy at law by which relief against it may be obtained. Winters v. Means, 25 Neb. 241, 41 N. W. 157; 1 High, Inj. § 229; 1 Black, Judgm. § 374; Corbitt v. Timmerman, 95 Mich. 581, 55 N. W. 437; Chambers v. Bridge Manufactory, 16 Kan. 270. The defendants, apparently conceding this rule, insist that plaintiff had an adequate remedy at law under the provisions of section 602 of the Code of Civil Procedure. By that section the district court is given authority to vacate or modify its own judgments after the term at which they were entered. It has reference only to orders and judgments possessing some degree of legal vitality, not to such as are absolutely and utterly void. To speak of the vacation or modification of a void judgment is a perversion of language. There being no judgment, but the mere form and counterfeit of a judgment, there is nothing to modify or annul. "A void judgment," says Mr. Freeman (Freem. Judgm. [4th Ed.] § 117), “is, in legal effect, no judgment. By it no rights are devested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree, then, is in reference to its vitality; for, if it be null, no action upon the part of a plaintiff, no inaction upon the part of a defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action." In the case of Leonard v. Insurance Co., 101 Iowa, 482, 70 N. W. 629, the supreme court of Iowa, construing provisions of the Code of that state almost identical with those contained in section 602, held that they related only to orders and judgments that are 76 N.W.-36

voidable, but not void. And, speaking upon this subject, Commissioner Ragan, in Insurance Co. v. Robbins, 53 Neb. 44, 73 N. W. 269, remarked: "In this connection we deem it proper to say we do not think that the provisions of section 602 of the Code contemplate a void judgment, but one which is voidable by reason of some fraud or irregularity." The alleged judgment of the district court against the plaintiff in the replevin action was not a judgment obtained irregularly or otherwise. It had the form and semblance of a judgment, but it was entered without jurisdiction, and was and is absolutely nul!. The district court had apparent jurisdiction of the parties. The judgment in question was fair on its face. It was a cloud upon the plaintiff's credit, and upon the title to his land, if he possessed any, in Douglas county. Upon it successive executions could issue. There was no adequate remedy at law against it, and therefore this action was properly brought, and the relief prayed for should have been granted. The judgment of the district court is reversed, and a final judgment will be entered in this court as prayed. Reversed.

LACKEY v. STATE.

(Supreme Court of Nebraska. Oct. 5, 1898.) CRIMINAL LAW-APPEAL.

The correctness of the ruling of a district court in giving or refusing instructions cannot be considered here unless such ruling is first challenged in the district court by motion for a new trial.

(Syllabus by the Court.)

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

Clarence Lackey was convicted of robbery, and brings error. Affirmed.

J. R. Webster, H. F. Rose, and T. F. Barnes, for plaintiff in error. C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

RAGAN, C. Clarence Lackey was by the judgment of the district court of Hitchcock county sentenced to imprisonment in the penitentiary for the crime of robbery. To review this judgment, he has filed here a petition in error.

There is in the record no bill of exceptions. The motion of the plaintiff in error for a new trial filed in the district court made no complaint as to the ruling of that court in the giving or refusing to give instructions, and the correctness of the ruling of the district court in those respects cannot be raised for the first time here. Barr v. City of Omaha, 42 Neb. 341, 60 N. W. 591; Jolly v. State, 43 Neb. 857, 62 N. W. 300; Paper Co. v. Banks, 15 Neb. 21, 16 N. W. 833. The information supports the judgment, and it is affirmed. Affirmed.

RAILWAY OFFICIALS' & EMPLOYEES'
ACC. ASS'N OF INDIANAPOLIS,
IND., v. DRUMMOND.

(Supreme Court of Nebraska. Oct. 5, 1898.) PETITION-AIDER BY ANSWER-ACTION ON ACCIDENT POLICY-DEATH BY GUNSHOT WOUND.

1. A petition which is defective by reason of the omission of material facts therefrom will be aided and cured by the averment of such facts in the answer.

2. Generally, a plaintiff is only required to bring his case within the terms appearing on the face of the contract in suit, and need not negative conditions and exceptions indorsed thereon.

3. Where, in an action on a contract of insurance, it is claimed that death resulted from one of the excepted causes enumerated on the back of the policy, it is for the defendant to plead and prove that fact.

4. An accident, within the meaning of contracts of insurance against accidents, includes any event which takes place without the foresight or expectation of the person acted upon or affected thereby.

5. An accident insurance policy contained a clause insuring against injury "inflicted by external, violent, and accidental means," and excepted cases where the injury "results from the intentional acts of the insured or any other person.' Death resulted from a gunshot wound inflicted by a robber. Whether the wound was accidentally or intentionally inflicted being a matter of inference from equivocal circumstances, the jury were properly instructed that the plaintiff could recover unless the shooting of the assured was the robber's intentional act.

(Syllabus by the Court.)

death resulted from an accident, and the petition does not disclose the fact that, by the express terms of the contract, written on the face thereof, the right of recovery was made to depend upon the injury being accidental. The cause of action was stated as though it had arisen on an ordinary life policy. The defendant, however, made no objection to either the form or substance of the pleading. but filed an answer thereto, which, after admitting the issuance of the policy, denying the sufficiency of the proofs of death, and alleging that Drummond was murdered by a footpad or highwayman, proceeds as follows: "Defendant alleges that said certificate of membership in said Railway Officials' & Employees' Accident Association and said policy of insurance provided, among other things. as follows: That 'the defendant shall not be liable for injuries resulting from the intentional acts of the insured or any other person, or death resulting from such acts. whether the insured or such other person be sane or insane (injuries inflicted by burglars excepted), or injuries or death while in or at any place or assembly prohibited by law.' Defendant alleges that the deceased, Elmer E. Drummond, came to his death at the hands of some person unknown to this defendant, but which this defendant states upon information and belief to have been a footpad or highwayman; and that said Elmer E. Drummond came to his death, and was intentionally shot and killed, while he was at a

Action by Susan E. Drummond against the Railway Officials' & Employees' Accident Association of Indianapolis, Ind. From a judgment for plaintiff, defendant brings error. Affirmed.

Lambertson & Hall, for plaintiff in error. Strode & Strode, for defendant in error.

SULLIVAN, J. This was an action on a policy of accident insurance issued by the Railway Officials' & Employees' Accident Association of Indianapolis, Ind., to Elmer E. Drummond, insuring him against bodily injuries inflicted by "external, violent, and accidental means." The plaintiff, Susan E. Drummond, was the mother of the assured, and the beneficiary named in the contract. A trial to a jury in the district court of Lancaster county resulted in a verdict and judgment for the plaintiff. The defendant prosecutes error to this court. The petition alleges the corporate character of the insurance company, the issuance of the policy, the death of the assured while the policy was in force, and the furnishing of proofs of death in accordance with the requirements of the contract. The allegation in regard to the death of Drummond is that, while riding along the public road near the city of Holdrege, he was shot and killed by an unknown person. There is no direct averment that

house of ill fame, in the town of Holdrege; and that said injuries or death occurred at said place, and in consequence of his being there, and by reason of his being engaged in an unlawful act, by reason whereof said policy of insurance is void, and the said defendant is not liable thereon, or on said certificate of membership in said defendant association." The plaintiff replied, traversing the new matter pleaded by the defendant. At the trial the policy was received in evidence without objection, and among a large number of conditions printed on its back appears the provision set out in the answer.

The first argument of the defendant is that the judgment is erroneous, because the petition does not state a cause of action on the policy. This contention cannot be sustained. According to a familiar rule of pleading, the deficiencies of the petition may be, and often are, supplied by the averments of the answer. "When the defendant chooses," says Parker, C. J., in Slack v. Lyon, 9 Pick. 62, "to understand the plaintiff's count to contain all the facts essential to his liability, and, in his plea, sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to Ishow the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely

to have omitted to notice in the outset of the controversy." To the same effect are Erwin v. Shaffer, 9 Ohio St. 43; White v. Joy, 13 N. Y. 83; Kercheval v. King, 44 Mo. 401; Bliss, Code Pl. (3d Ed.) 437; 2 Boone, Code Pl. 236. In this case the petition and answer, taken together, affirmatively show every fact which plaintiff was required to plead and prove, every fact upon which her right of recovery under the contract depended, viz.: That the policy was issued and was in force when the assured died; that his death was the result of a violent external injury; that such injury was, as to him, and within the meaning of the contract, accidental; and that the death proofs were duly furnished. In other words, when the allegation of the answer that Drummond was murdered by a highwayman is read into the petition, it is shown that the injury causing his death was not intentionally self-inflicted, but was an accident, within the settled interpretation of the agreement written on the face of the policy.

The plaintiff was only required to bring her case within the terms of the policy appearing on its face. She was not required to negative the conditions or exceptions indorsed thereon. In declaring on a contract which contains exceptions, conditions, or provisos, it is not necessary for the pleader to do more than to allege the general clause under which his cause of action has arisen. He is not obliged to set out and negative a distinct clause which operates as an exception to the general clause, but which is not incorporated in it. Meadows v. Insurance Co., 129 Mo. 76, 31 S. W. 578; Com. v. Hart, 11 Cush. 130. It results from these considerations that, in determining whether a cause of action has been stated on the contract in suit, the condition of the policy pleaded by the defendant is not to be taken into account. That condition afforded the basis for an affirmative defense which would defeat a recovery if sustained by adequate proof. The burden of proving that death resulted from any of the causes enumerated on the back of the policy was on the defendant. Anthony v. Association, 162 Mass. 354, 38 N. E. 973; Insurance Co. v. Brown, 57 Miss. 308; Association v. Sargent, 142 U. S. 692, 12 Sup. Ct. 332.

It has thus far been assumed that the killing of Drummond was an accident, within the import of the contract. This view of the matter is vigorously combated by counsel for the defendant. It seems to be entirely justified by the authorities. An accident, within the meaning of contracts of the kind here considered, includes any event which takes place without the foresight or expectation of the person acted upon or affected thereby. This, in substance, is the definition given in Webster's Unabridged Dictionary, and in Bouvier's Law Dictionary. It has been either recognized as correct or expressly approved in the following cases, involving accident insurance: Richards v. Insurance Co.,

89 Cal. 170, 26 Pac. 762; Paul v. Insurance Co., 112 N. Y. 472, 20 N. E. 347; McGlinchey v. Casualty Co., 80 Me. 251, 14 Atl. 13; Lovelace v. Association, 126 Mo. 104, 28 S. W. 877; Insurance Co. v. Bennett, 90 Tenn. 256, 16 S. W. 723; Hutchcraft v. Insurance Co., 87 Ky. 300, 8 S. W. 570; Supreme Council v. Garrigus, 104 Ind. 133, 3 N. E. 818; Accident Co. v. Carson, 99 Ky. 441, 36 S. W. 169; Button v. Association, 92 Wis. 83, 65 N. W. 861. In the case of Accident Co. v. Carson, supra, it is said: "While our preconceived notions of the term 'accident' would hardly lead us to speak of the intentional killing of a person as an 'accidental' killing, yet no doubt can now remain, in view of the precedents established by all the courts, that the word 'intentional' refers alone to the person inflicting the injury; and if, as to the person injured, the injury was unforeseen, unexpected, not brought about through his agency designedly, or was without his foresight, or was a casualty or mishap not intended to befall him, then the occurrence was accidental, and the injury one inflicted by accidental means, within the meaning of such policies." In Casualty Co. v. Johnson, 72 Miss. 333, 17 South. 2, it was held, construing the language of an accident policy, that one who was hanged by a mob came to his death by "external, violent, and accidental means." The same conclusion was reached in Hutchcraft v. Insurance Co., supra, where one was waylaid by robbers, and killed while being robbed. Cases apparently holding a contrary doctrine, so far as we know, are based on contracts containing a provision against liability where the injury causing death is intentionally inflicted, either by the assured or any other person.

That there can be no recovery under such circumstances was conceded by the trial court in this case, and the jury were accordingly instructed as follows: "The gunshot wound that resulted in his death was an external and violent bodily injury, and was accidental as far as the insured was concerned. The defendant company, by virtue of its said undertaking to indemnify for such death, would in this action be liable beyond dispute, except for the said proviso of the contract relieving the company from liability for death resulting from the intentional act of the insured, or from the intentional act of any other person." "(6) If, from the evidence before you touching the matter, you find and determine that the shooting and killing of the insured by the tramp was the accidental act of said tramp, then plaintiff is entitled to recover upon said policy. If the evidence before you convinces you that the shooting and killing of the insured was the intentional act of the tramp, then, under the said conditions of the policy, the death of the said Drummond is not covered by the said insurance, and plaintiff cannot recover under said policy." These instructions clearly and accurately stated the law

applicable to the case, and were properly given, unless it is conclusively shown by the evidence that the killing of Drummond was the intentional act of the robber who shot him. The tragedy occurred under the foltowing circumstances: On the night of June 30, 1894, the deceased, with a companion named Rundstrum, visited a brothel in the city of Holdredge. They left the house about midnight, had just mounted their bicycles, and were very slowly proceeding to their homes, Rundstrum being about six feet in advance of Drummond, when a couple of footpads, who had been lying in wait for any one who might come out of the house, leveled revolvers on them, and called on them to halt or throw up their hands. Rundstrum stopped at once, dropped his right foot to the ground, and, looking around, saw Drummond in about the same attitude, with his hands on the handle bars of his machine. Just as Rundstrum looked around at him in that position, he saw one of the robbers with a revolver in his hand, saw the flash, heard the report, and Drummond staggered forward, fell to the ground, and in a few minutes expired. After the shot was fired, the man who did the shooting said to Drummond, "Now, then, can you do as you are told?" to which Drummond answered, "Yes, sir." The robber whose attention was directed to Rundstrum said to his associate, "Did you hurt the man?" to which the assassin answered, "I guess I touched him a little." The other man then said, "Beat him over the head, and see if you can't make him talk." The pockets of both Rundstrum and Drummond were then rifled, after which the robbers fled, and have never been apprehended. Rundstrum testified that he saw Drummond offer no resistance to the demand of the man who shot him. Prior to the happening of the events here mentioned, but on the same evening, the footpads had waylaid and robbed a man named Roberts, whom they forced to accompany them, and who was with them when Drummond was killed. The testimony of Roberts, taken in connection with the other evidence in the case, leaves no room to doubt that robbery was the specific and sole end the footpads had in view. To the accomplishment of that end, the killing of Drummond was neither a necessary means, nor even one well suited to the purpose. Indeed, the act, under the circumstances, was distinctly and manifestly calculated to frustrate their scheme, rather than facilitate it. The personal safety of the robbers, as well as the success of the enterprise, would seem to depend upon the business being quietly and quickly done. To discharge a pistol was to attract attention, and invite interference from officers or other persons who might be in the vicinity. As Drummond made no resistance, but yielded prompt obedience to the demand of the man who killed him, the killing, on the hypothesis of the defendant, was a needless and wanton murder. We would long hesitate before

accepting that conclusion as being the more reasonable and probable solution of the question, and we do not at all doubt the propriety of the court's action in submitting the matter to the jury for their determination. The inference that the pistol in the hand of the robber was accidentally discharged, and that the killing of Drummond was unintentional, is a reasonable deduction from all the circumstances proven on the trial. The verdict is sustained by sufficient evidence. There was no error in the giving or refusal of instructions. The judgment is right, and is affirmed. Affirmed.

SMITH BROS. LOAN & TRUST CO. v. WEISS et al.

(Supreme Court of Nebraska. Oct. 5, 1898.) MORTGAGE FORECLOSURE-APPRAISEMENT APPEAL

-REVIEW.

1. Where lands constituting one body are used as a single tract, ordinarily they may for judicial sale be appraised together.

2. Objections to the appraisement must be made prior to the sale.

3. Affidavits used on the hearing of a motion in the district court cannot be considered on review in the appellate court, unless embodied in a bill of exceptions.

4. The sale of lands under a decree of foreclosure must take place at the court house, unless there be none in the county, in which case the sale must occur at the door of the building in which the last district court of the county was held.

(Syllabus by the Court.)

Appeal from district court, Thayer county; Hastings, Judge.

Action by Smith Bros. Loan & Trust Company against one Weiss and others to foreclose a mortgage. From an order of the district court confirming the sheriff's sale, defendants appeal. Reversed.

John Heasty and W. H. Barnes, for appellants. Griggs, Rinaker & Bibb, O. H. Scott, Richards & Dinsmore, Chas. P. Schwer, and M. H. Weiss, for appellee.

NORVAL, J. This is an appeal from an order of the court below confirming the sale of real estate under a decree of foreclosure.

The first objection is that the premises were not separately appraised. To this there are two answers. In the first place, there is nothing in the record to show that the premises constituted two separate and distinct tracts. The lands were contiguous, and, if used as a single tract, there was no error in so appraising the property. Again, no objections were made to the appraisement until after the report of the sale was filed. This was too late to be available. Vought v. Foxworthy, 38 Neb. 790, 57 N. W. 538: Ecklund v. Willis, 42 Neb. 737, 60 N. W. 1026; Burkett v. Clark, 46 Neb. 466, 64 N. W. 1113; Overall v. McShane, 49 Neb. 64, 68 N. W. 383. It is urged that no certificates of liens were ever obtained of the county clerk and clerk