Glebe v. State. order of court to the next term. Would the calling of a special term (perhaps for a two-hour session as appears in this record) reopen the entire docket? These illustrations will suffice to show the ordinary meaning of the words used. The accident of a special term should not alter such ordinary signification. We are not without authority for our conclusion. In Stripland v. State, 115 Ga. 578, it was held in a similar statute the words, "or at the next succeeding term thereafter," mean the next regular term. See, also, Commonwealth v. Lovett, 2 Va. Cas. 74. The case of Critser v. State, 87 Neb. 727, relied upon by defendant, is not in point, as the only terms in question were regular terms, so far as appears. At any rate the question now raised was not discussed. The situation then is as follows: At the September, 1919, term the case was continued by consent of the parties. Whatever might be the ruling in a case of mere failure of defendant to object, an active participation in the act of continuing the case by positive consent thereto must be considered as equivalent to a continuance upon his application, and such term should not be counted. Healy v. People, 177 Ill. 306. It could hardly be claimed if defendant consented to a continuance over the third term that he would be heard to demand his discharge at the next term. In such case he would be deemed to have waived his right. State v. Dewey, 73 Kan. 735. (The reversal of the case on rehearing, at page 739, did not disturb the holding as to the effect of defendant's consent to a continuance.) While the record is not entirely clear when the information was filed, yet we think it is fairly inferable that it was filed at the September, 1919, term, and, if so, that term should not be considered in the calculation. Whitner v. State, 46 Neb. 144. The case was continued over the April, 1920, term at the request of defendant. There remains only three regular terms, at the last of which defendant was tried. Roebling's Sons Co. v. Nebraska Electric Co. In view of our construction of section 9022, Rev. St. 1913, it will not be necessary to refer to other questions discussed in the brief. It seems proper, however, to suggest that all presumptions are in favor of the correctness of the rulings of the trial court and defendant is required to show error affirmatively, and, there being no evidence in the record tending to show that there was time to try the defendant at any time prior to October, 1920, the presumption must prevail that the court acted without error. Korth v. State, 46 Neb. 631. We conclude that defendant was not entitled to be discharged upon either motion. No error appearing in the record, the judgment of the district court is AFFIRMED. JOHN A. ROEBLING'S SONS COMPANY, APPELLEE, V. NEBRASKA ELECTRIC COMPANY ET AL.: CHICAGO SAVINGS BANK & TRUST COMPANY ET AL., APPELLANTS. FILED JUNE 6, 1921. No. 21362. 1. Electricity: ELECTRIC PLANT: 2. APPURTENANCE: MORTGAGE. Where a company, owning independent electric generating and distributing plants in several small towns, connects these plants by a high tension transmission line, with the object of producing economy and efficiency in operation, and of assisting and enlarging the work of the electric plants, held, that such transmission line, though extending across the country over property not owned by the company, and over which it had only a license to go, would constitute an appurtenance to the existing plants from which the line was constructed, and be subject to the lien of a mortgage, which had been given before the transmission line had been constructed, and which was to cover the plants and their appurtenances, and which contained a clause covering additions and extensions and properties to be afterwards constructed or acquired. : : Such transmission line constructed from one of the electric lighting plants becomes an appurtenance and an integral part of such plant from the time construction is commenced, its character in relation to the main property being de 3. 4. 5. Roebling's Sons Co. v. Nebraska Electric Co. termined by the purpose for which it is being built, and its character as such appurtenant part of the plant from which it is constructed does not await its completion and operation as a part thereof. -: : -: MORTGAGE. Where the mortgage provides for the payment of further moneys in case improvements and extensions are made, and the mortgagee, after the construction of such a transmission line has begun, advances moneys on the faith and credit of such construction, the acceptance of such moneys constitutes such an act on the part of the mortgagor as will subject the transmission line to the lien of the mortgage. -: :LIENS: PRIORITY. Where one furnishes material for the construction of such transmission line, after the line has been partly erected, held, on a claim for a mechanic's lien, that his rights are subordinate to the lien of the mortgage. : : The mere fact that the mortgage money was given with the intention that it should be used in the purchase or in the improvement or extension of the property does not render the mortgage subordinate to the mechanic's lien, where it does not appear that the mortgagee had retained any control over the use of the funds furnished under the mortgage, and had not ordered or required, and had no power to order or require, that any extensions or improvements should be made. 6. Appeal: TRUSTEE FOR BONDHOLDERS. Held, that the trustee for the bondholders under the mortgage was entitled to bring an appeal to this court, where a judgment had been rendered subordinating the lien of the mortgage to that of the mechanic's lien. APPEAL from the district court for Knox county: ANSON A. WELCH, JUDGE. Reversed. Fisher, Boyden, Kales & Bell, Albert M. Kales, W. D. Funk and William K. Otis, for appellants. Newman, Poppenhusen, Stern & Johnston, Montgomcry, Hall & Young, Charles T. Farson and Raymond G. Young, contra. FLANSBURG, J. Action by plaintiff Roebling's Sons Company to foreclose a mechanic's lien upon an electric transmission line, the property of the Nebraska Electric Company, and for the construction of which plaintiff had furnished copper Roebling's Sons Co. v. Nebraska Electric Co. wire. The Chicago Savings Bank & Trust Company, hereinafter called defendant, claim a prior lien by virtue of a trust deed. The sole controversy presented is between these two lien claimants. The trial court found that the mechanic's lien was the superior one, and from that decision and the decree in accordance therewith the trustees for the defendant and for others holding bonds secured by the trust deed bring this appeal. In March, 1917, the Nebraska Electric Company purchased the electric light and power plants situated, respectively, in the towns of Creighton, Wausa, Bloomfield, Hartington, Wakefield, and Emerson, all in Nebraska. During that month, and, in fact, to procure funds to apply upon the purchase price, the Nebraska Electric Company executed and delivered to the defendant Chicago Savings Bank & Trust Company the trust deed in question. This trust deed, or mortgage, as we shall call it, was, during April, 1917, filed of record in the several counties where the properties were situated. The mortgage by its terms covered, by specific description, the real estate of each one of the electric lighting plants and, by general terms, all buildings and improvements, the distribution systems in and about said towns, together with all the appurtenances of said plants and systems. There was superadded to these several descriptions the following general description of property intended to be covered by the mortgage: "All engines, boilers, stacks, tanks, condensers, heaters, pumps, switchboards, dynamos, batteries, generators, pipes, connections, transformers, boilers, wires, meters, machinery, fixtures, tools, appliances and equipment of every kind and nature constituting the electric light and power plants in each of the above-named cities and villages and the distribution systems connected therewith or appertaining thereto, with all the appurtenances and property of every kind relating to or used or intended for use in connection with said plants and systems, and all contracts, accounts, and other things of value pertaining Roebling's Sons Co. v. Nebraska Electric Co. to the business heretofore conducted through or in connection with any of said plants, and the good will of such business. "All ordinances, contracts, franchises, instruments, licenses, privileges, revenues, income, profits and rights of every kind now or hereafter in any manner held, owned or enjoyed by said Nebraska Electric Company; and all property, real, personal and mixed, of every kind and description, not hereinabove specifically described, now owned or hereafter acquired by said Nebraska Electric Company." The mortgage provided for the immediate issuance of $100,000 in bonds, which bonds were issued and sold and the net proceeds delivered to the Nebraska Electric Company. The mortgage further provided for the immediate issuance of another $25,000 in bonds. The proceeds from the sale of these bonds, it was provided, should be paid to the Nebraska Electric Company from time to time, and cnly in payment or to reimburse the company "for expenditures for, not more than four-fifths of the actual cost, and in no event for an amount exceeding the reasonable value, of property constructed or acquired as and for permanent additions to and extensions of the property of the company." In September, 1917, the Nebraska Electric Company began the construction of the high tension electric transmission line in question. This line was to extend from Creighton for a distance of 311⁄2 miles to Bazile Mills, thence 171⁄2 miles to the town of Wausa, and thence several miles to the town of Bloomfield, with the object of connecting the several electric lighting plants of the company for the purposes of economy and efficiency in operation, and for the purpose of allowing the steam generating plant at Creighton to furnish power to the other plants connected by this line. During the time that this work of construction progressed, the expenditures upon this and other improvements of the several plants were certified to the trustee |