Tillson v. Holloway

136 N.W. 44, 91 Neb. 484, 1912 Neb. LEXIS 230

Opinion

Per Curiam.

Plaintiff’s motion to recall tbe mandate and modify our judgment is overruled.

The trial court should proceed to try the equitable defense stated in the opinion upon such material and competent evidence as may be offered.

Our judgment does not interfere with the discretion of the trial court to take the advice of a jury if that court finds it advisable to do so.

All other issues are determined. The result of the trial of the equitable issue will dispose of the action, and judgment should be entered accordingly.

The plaintiff’s motion to retax costs is sustained.

Motion overruled.