given had qualified and entered upon the discharge of their duties as trustees. Upon the authority of State v. Stearns, supra, this would make no difference, and the canvassing board should have been required to reassemble and canvass the return correctly. The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law. The other judges concur. MCBRIDE v. LATHROP. (Supreme Court of Nebraska. April 25, 1888.) 1. APPEAL-REVIEW-PRESUMPTION. All presumptions are in favor of the regularity of the proceedings of the district court, and its judgments will not be reversed unless error affirmatively appears of record. 2. JUSTICES OF THE PEACE-FILING TRANSCRIPTS IN COURTS OF RECORD. A. recovered judgment against B. before a justice of the peace of K. county. A transcript of that judgment was taken, and filed in the office of the clerk of the district court of H. county. The judgment debtor paid to the clerk of the district court of H. county the amount due upon the judgment, as shown by the transcript filed in said court; the payment being made under protest. In an action brought by him against the clerk to recover the money, it was held that the suit could not be maintained, upon the sole ground that the apparent judgment in the district court of H. county was void by reason of the transcript not having been issued by the clerk of the district court of K. county, from a transcript there filed, but by the justice of the peace in that county by whom the judgment was rendered. (Syllabus by the Court.) Error to district court, Holt county; KINKAID, Judge. Action by Elias M. Lathrop, defendant in error, to recover from John McBride, plaintiff in error, a sum of money paid to the latter as county clerk of Holt county, on a judgment against plaintiff, which is alleged to be void. E. P. Weatherby, for plaintiff in error. H. M. Uttley, for defendant in error. REESE, C. J. An action was instituted in the county court by defendant in error against plaintiff in error for the recovery of the sum of $107.21, alleged to have been paid by defendant in error to plaintiff in error, as shown by the transcript of the proceedings before the county court. The pleadings filed in that court are not attached to the record, but from the county judge's transcript it appears that plaintiff in error filed an answer denying the allegations of the bill of particulars, and alleging that the money sought to be recovered was paid to him, as clerk of the district court of Holt county, on a judgment in said court in favor of George E. Cheney, and against defendant in error. A reply was filed denying the existence of such judgment, as well as the other allegations of the answer. It is shown by the county judge's transcript that a trial was had, and that plaintiff in error was examined as a witness on his own behalf, and that the records of the district court, containing the judgment against defendant in error, and in favor of Cheney, was offered in evidence, and that plaintiff in error then moved to dismiss the action for the reason that the county court had no jurisdiction to try the same. The motion was sustained, and the action dismissed, to which defendant in error excepted. The cause was then removed to the district court by proceedings in error, where the judgment of the county judge was reversed, and the cause set down for trial. To this plaintiff in error excepted, and brings the cause to this court by like proceedings. None of the evidence taken upon the trial before the county judge is preserved in the record before us. We are therefore left in doubt-First, as to the issues presented by the pleadings, and tried before the county judge; and, second, as to the evidence upon which the judgment of the district court was rendered. All presumptions being in favor of the regularity of the proceedings in the district court, we must pre sume that the pleadings before the county judge, as well as the evidence adduced upon the trial, were before the court, and that its judgment was correct. The question argued by counsel, as presented by the statement contained in the briefs, is that Cheney recovered a judgment against defendant in error before a justice of the peace of Knox county, and that a transcript of such judgment was filed in the office of the clerk of the district court of Holt county, without having been filed in the office of the clerk of the district court of Knox county, and that defendant in error, finding an apparent judgment in the district court of Holt county, based upon the transcript of the justice of the peace of Knox county, paid the amount due thereon to the clerk, for the purpose of canceling the same, and soon thereafter brought suit against plaintiff in error for the recovery of the money back, upon the ground that the judgment upon which the money was paid was void. At the time of the payment of the money, defendant in error, by his agent, took from plaintiff in error a receipt, which we here copy: "O'NEIL, NEB., March 11, 1887. "Received from John W. Drayton the sum of $107.21 in full payment of judgment filed by George E. Cheney and John Benedict against E. M. Lathrop. Said judgment was paid by said John W. Drayton for E. M. Lathrop, his agent, and pays said sum under protest, and demands to have the same held pending action in error in Knox county, Neb. "JOHN MCBRIDE, Clerk of the District Court. As the case must be tried in the district court, we deem it proper to say that, in our opinion, an action on the part of defendant in error for the recovery of this money cannot be maintained, on the ground alone that the apparent judgment in the district court of Holt county was void. If the judgment in Knox county remains unreversed and in full force, and the plaintiff therein caused a transcript thereof to be filed in the office of the clerk of the district court of Holt county, he cannot be heard to call in question the legality of his own proceeding. If defendant in error recognized that judgment as valid to the extent of paying it, even if under protest, he cannot afterwards repudiate such payment, and bring suit against the clerk, and recover it back. The satisfaction of that judgment would be a satisfaction of the judgment in Knox county, and the money would be held for the judgment plaintiff, unless it should be made to appear that the judgment from which the transcript was taken was canceled by payment, or by appellate proceedings, and that the money remained in the hands of plaintiff in error. In that event he or his successor in office would hold it in his official capacity for defendant in error, and would be required by the district court, by a summary proceeding, to refund it; the satisfaction or cancellation of the judgment in Knox county being a cancellation of the judgment in Holt county. As there is nothing in the record before us by which we can be informed as to the ground upon which either the county judge or district court acted, we cannot reverse the judgment of the district court. It is therefore affirmed. The other judges concur. ATCHISON & N. R. Co. v. PLANTT. (Supreme Court of Nebraska. April 25, 1888.) EMINENT DOMAIN-APPEAL FROM AWARD-COSTS. In an appeal from an award of damages for property taken for right of way purposes, if the appellant fail to obtain a more favorable judgment than was given by the commissioners who made the award from which the appeal is taken, such appellant will be liable for all costs occasioned by the appeal. (Syllabus by the Court.) Error to district court, Richardson county; BROADY, Judge. v.38N.w.no.1-3 Appeal by the Atchison & Nebraska Railroad Company from an award of damages to Eli Plantt, in condemnation proceedings instituted by the company. The district court having taxed the costs on appeal against the company, it alleges error. Marquett & Deweese and E. W. Thomas, for plaintiff in error. I. Reavis and C. Gillespie, for defendant in error. MAXWELL, J. The plaintiff in error instituted proceedings in the county court of Richardson county to condemn certain real estate for right of way purposes, the report of the commissioners being as follows: "We, the under signed, disinterested freeholders and commissioners, residents of Richardson county, Neb., appointed by the county judge of said county to appraise the damages accruing to Eli Plantt by reason of the appropriation of that part of the following described real estate taken for right of way, side track, and railroad purposes by the Atchison & Nebraska Railroad Company, and situated in said Richardson county, as shown on the plat and profile of said road as submitted to us by the agent of said railroad company, viz.: The right of way, two hundred feet wide, on each side of the center line of the located roadway of said company, as staked out upon the south-east quarter of section thirteen, and upon the east half of the south-west quarter, all of section 13, town one north, of range 17 east, of the 6th P. M., and belonging to Eli Plantt, having been duly qualified, and having each personally examined said premises on the day and at the time mentioned in notice filed with the county judge, at the office of said county judge in said county, find the quantity of land taken and value thereof as follows, to-wit: 20 acres of land, at $75 per acre, amounting to the sum of $1,518.75; all other damage accruing by reason of the taking of said land we do appraise at the sum of $1,481.25,—and we hereby accordingly award and appraise said value and damages at the total sum of $3,000." From this award the railway company appealed to the district court of Richardson county, and on the trial of the cause in that court the jury returned the following verdicts: "We, the jury in this case, being duly impaneled and sworn and affirmed, find all the issues of this cause in favor of said Eli Plantt, plaintiff, and against the said Atchison & Nebraska Railroad Company; and we do find and assess the said plaintiff's (Eli Plantt's) damages to be and at the sum of $3,000. JOHN LICHTY, Foreman." "If the jury believe from the evidence that the owner of the land is entitled to damages to the land not taken, they will answer the following questions: What is the whole amount of your verdict? Answer. $3,000. What do you find to be the value of the land taken? A. $1,012.50.' Do you allow damages for the portion not taken? If yes, how much? A. $1,987.50.' JOHN LICHTY, Foreman." Judgment for $3,000 was thereupon entered on the verdict in favor of the plaintiff and against the defendant, the costs being taxed to the defendant. The defendant thereupon filed a motion to retax costs, which was overruled. It will be observed that the amount allowed by the jury for the land actually taken is somewhat less than that awarded by the commissioners; while that allowed for incidental damages is greater than that awarded by the commissioners, the aggregate being the same. No objections are made on this ground, however. Where property is condemned for right of way purposes, and an appeal taken to the district court, the damages are to be estimated at the time the property is taken. If the railway company appeals, and fails to reduce the amount allowed by the commissioners, the appellee will be entitled to interest on the award. In Railroad Co. v. Brown, 13 Neb. 317, 14 N. W. Rep. 407, this court held that, where the verdict exceeded the award, that the land-owner was entitled to interest. That decision conformed to the facts in that case, and was not intended to preclude a land-owner from recovering interest in case of an appeal by the railway company, where it fails to reduce the amount of the award. Suppose the land-owner is satisfied with the amount of the award, but the railway company is not, and therefore appeals, and keeps the land-owner out of the use of his money for one or two years, and on the trial fails to reduce the amount of the award. Here the land-owner has been kept out of the use of his money by no fault of his, and the party who has caused the delay should be liable for the use of the money. This is a just and equitable rule, fair alike to the railway company and the land-owner; and was applied in Berggren v. Railroad Co., 37 N. W. Rep. 470, recently decided by this court. There is nothing in the record to show that the jury allowed any interest on the damages sustained by the plaintiff. In fact, the verdict repels any inference that interest was allowed. Section 97, c. 16, Comp. St., provides "that if on appeal the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal: provided, further, that either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court." The defendant failed to reduce the amount of the award, and therefore is liable for the costs in the case. is no error in the record, and the judgment is affirmed. The other judges concur. BURLINGTON & M. R. Co. v. SPERE. (Supreme Court of Nebraska. April 25, 1888.) EMINENT DOMAIN-APPEAL FROM AWARD-COSTS. There Under section 97 of chapter 16 of the Compiled Statutes as amended in 1883, where, on an appeal from an award of damages for property taken for right of way of a railway, the verdict is less than the amount of the award, neither the railway nor the land-owner will be liable for all the costs of the appeal; but ordinarily such costs should be divided between the parties. (Syllabus by the Court.) Error to district court, Saunders county; MARSHALL, Judge. Appeal by the Burlington & Missouri River Railroad, plaintiff in error, from an award of damages in condemnation proceedings made to William T. Spere. T. B. Wilson and Marquett & Deweese, for plaintiff in error. Beeson & Sullivan, for defendant in error. MAXWELL, J. The plaintiff condemned right of way across certain real estate belonging to one Emily T. White, which land was leased to the defendant. The commissioners appointed by the county judge made an award to the defendant of the sum of $375, from which the plaintiff appealed to the district court. On the trial of the cause, the jury returned a verdict, with interest, in the sum of $300. The court, however, taxed all the costs to the plaintiff. A motion for a new trial was thereupon filed, and overruled, to which the plaintiff excepted. Section 97, c. 16, Comp. St., provides that "such railroad company shall in all cases pay the costs of the first assessment: provided, that if on appeal the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal: provided, further, that either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court." Section 97, c. 25, Rev. St. 1866, provided "that in no case shall said corporation be liable for costs on such appeal unless the owner of such real estate shall be adjudged entitled, upon the appeal, to a greater amount of damages than was awarded by said freebolders." It was found that the practical application of this statute was liable to work great injustice to the land-owner in the taxation of costs, because, while he might be willing and anxious to receive the award made by the commissioners, yet if the railroad company appealed, and the verdict was less than the amount of the award, the land-owner would not only lose the interest on the money, but must pay the costs of the appeal. This in many cases was a great hardship. The new statute was passed in 1883, and took effect June 1st of that year. The provision is remedial in its nature, and was designed to relieve the hardships occasioned by the former statute; so far, at least, as not to make the land-owner liable for all costs. A somewhat similar question was before the supreme court of Iowa in Noble v. Railroad Co., 17 N. W. Rep. 26. In that case the amount assessed by the sheriff's jury was $1,500. From this assessment the defendant appealed. On the trial, the jury returned a verdict in favor of the plaintiff for $1,300, with interest at 6 per cent. from the date of the condemnation. Section 1259, Code Iowa, provides that, "if the amount of damages awarded by the commissioners is decreased on the trial of the appeal, the amount assessed on the trial of such appeal only shall be paid to the land-owners." Section 1252 also provides that the company shall pay the costs of the appeal, unless the damages allowed on the appeal are less than the damages first allowed. It was held that the costs should have been apportioned between the parties. This we think is the correct construction of the statutes, and we approve and adopt the same. The cause is remanded to the district court, with directions to divide the costs of appeal between the plaintiff and the defendant. The other judges concur. ALDERMAN v. STATE. (Supreme Court of Nebraska. April 25, 1888.) 1. CRIMINAL LAW-MOTION TO QUASH-SUFFICIENCY OF COMPLAINT. In a prosecution upon an information charging a felony, the district court, after information filed, will not, upon a motion to quash, inquire into the form and validity of the complaint upon which the preliminary examination before a magistrate was had, the crime alleged being the same. 2. SAME WITHDRAWAL OF INDICTMENT-FILING INFORMATION. Where an indictment is returned by the grand jury, which, upon motion to quash, is found to be defective, it is not error for the district court to permit the county attorney to withdraw the indictment, and file an information charging the same offense as that contained in the indictment. 3. SAME-PROSECUTION IN NAME OF STATE. Where an information was filed in the district court, the caption of which was, "The State of Nebraska," and the prosecution thereunder was conducted in the name of "The State of Nebraska," this was held to be a sufficient compliance with the provisions of section 24 of article 6 of the constitution, which requires that all process shall run in the name of the state of Nebraska, and the prosecution shall be conducted in the name of the state of Nebraska. 4. BURGLARY-INTENT TO STEAL-INTENT TO RAPE-VARIANCE. Section 48, Crim. Code, describes and defines the crime of burglary. Where a preliminary examination was had upon a complaint charging the crime of burglary with the intent to steal, and the information filed by the county attorney in the district court charges the same offense, but with the intent to commit a rape, it was held that the same crime, to-wit, burglary, was described both in the complaint and in the information. (Syllabus by the Court.) Error to district court, Brown county; KINKAID, Judge. Information against Cam Alderman for burglary with intent to commit rape. C. H. Bane and C. E. Magoon, for plaintiff in error. REESE, C. J. Plaintiff in error was arrested upon a warrant issued by a justice of the peace, upon a complaint charging him with a violation of section 49, Crim. Code. The complaint was as follows: "The complaint of |