Larson v. First Nat. Bank

• Decision Date: 03 December 1902
• Citation: 66 Neb. 595,92 N.W. 729
• Parties: LARSON v. FIRST NAT. BANK.
• Court: Nebraska Supreme Court

66 Neb. 595

92 N.W. 729

LARSON

v.FIRST NAT. BANK.

Supreme Court of Nebraska.

Dec. 3, 1902.

Syllabus by the Court.

1. A pleader is not required to anticipate matter in avoidance of his allegations.

2. Where a statute authorizes executive officers to make general rules for the conduct of public business, and such rules are duly made and published, the courts will take judicial notice of them.

3. As it is the settled practice of this court that a judgment will not be reversed for errors not argued in the briefs of counsel, a decision affirming a judgment does not become a precedent as to any question not argued or expressly presented to the court, and left unnoticed in the opinion, although it might have been raised, and, if raised, have been decisive of the case.

4. The former opinion in this case (87 N. W. 18) approved.

On rehearing. Affirmed.

POUND, C.

This is a rehearing. The former opinion has been criticised upon three grounds: That the defendant (plaintiff in error) had not properly pleaded the illegality of the note in suit; that the court overlooked the act of congress of February 18, 1891, relating to the leasing of Indian lands; and that the decision is contrary to two prior cases (Nissen v. Turner, 50 Neb. 272, 69 N. W. 778, and Bank v. Frink [officially unreported, decided May 22, 1901] 92 N. W. 916), neither of which was referred to. We do not think any of these criticisms well taken.

The first point is that the answer, in setting up the illegality of the note sued on, does not negative the exceptions created by the act of 1891, and goes no further than to allege a lease in contravention of the act of 1887. But the act of 1891 is amendatory only. The former act furnishes the general rule, and the latter merely authorizes leases under certain special circumstances, and with certain special safeguards. The pleader states fully and explicitly that the note in suit was part of a contract of leasing, in contravention of section 5 of the act of 1887. In addition, he sets forth that the Indians who purported to make the leases in question “had no right or authority to enter into any written contract, of whatever kind or nature, for the alienation, incumbrance, or leasing of the real estate allotted to them as aforesaid.” This would seem to be a sufficient allegation that the case was not within the exception created by the act of 1891. But in any event the defendant was not required to go further than set out the facts showing a prima facie case of illegality. A pleader is not required to anticipate matter in avoidance of his allegations. Jones v. Association, 92 Iowa, 652, 61 N. W. 485;Cooledge v. Insurance Co., 67 Vt. 14, 30 Atl. 798;Blasingame v. Insurance Co., 75 Cal. 633, 17 Pac. 925;Insurance Co. v. McLead, 57 Kan. 95, 45 Pac. 73, 57 Am. St. Rep. 320;Bank of River Falls v. German-American Ins. Co., 72 Wis. 535, 40 N. W. 506. As in the cases cited a plaintiff suing upon a policy was not required to allege that the loss was not produced by any of the causes for which it was provided the insurer should not be liable, or that it was not produced by any of the means specially excepted in the policy, so here, in alleging that the note was within the purview of the act of congress, the defendant was not bound to negative expressly in advance every exception contained in the statutes. Nor do we think that the former opinion ignores or in any way fails to give effect to the later statute. That statute was not involved, and it did not become necessary for the court to refer to it. Neither the pleadings nor the proofs raise any questions under that act. The leases authorized under special circumstances, upon showing to the secretary of the interior, are to be made “upon such terms, regulations, and conditions as shall be prescribed” by that officer. Where a statute authorizes executive officers to make general rules for the conduct of public business, and such rules are duly made and published, the courts will take judicial notice of them. Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415;Dominici v. U. S. (C. C.) 72 Fed. 46; Low v. Hanson, 72 Me. 104; U. S. v. Williams, 6 Mont. 379, 12 Pac. 851. Turning to the printed regulations of the Indian office, we find at once that the instruments in question are in no sense such as are prescribed and required, and were not intended to be of that nature. There is nothing before the court to call for any application of the amendatory statute.

The prior decisions of this court referred to do not purport to pass upon the question now before us. No suggestion is made in the opinion in either case as to that...