This, it is elaborately argued, takes this case out of the rule established by the previous cases, and causes the statute to be repugnant to the fourteenth amendment. But as the rule settled by the previous cases is that contracts of insurance from their very nature are susceptible of classification, not only apart from other contracts, but from each other, it must follow, as the lesser is included in the greater, that the character of the property insured and the extent of the loss afford reasons for subclassification. "It is, however, argued that no reason could have existed for classifying losses on real estate separately from losses on other property. And by what process of reasoning, it is asked, could the legislative mind have discovered the foundation for allowing the recovery of a reasonable attorney's fee in case of a total loss of real estate insured, and not permit recovery of such fee when the property insured has been only partially destroyed? The distinction between real and personal property has in all systems of law constantly given rise to different regulations concerning such prop erty. The differences of relation which may arise between the insurer and the insured, depending upon whether the property insured has been only partially damaged or has been totally destroyed, needs but to be suggested. In the one case, the amount of the damage affords possibilities for a reasonable difference of opinion between the parties in adjusting the payment under the policy. In the other, the amount being determined under the statute by the value fixed by both parties in the policy, the question of legal liability under the policy would be, as a general rule, the only matter to be considered in determining whether payment under the contract will be made. Besides, it is obvious that the total destruction of real estate covered by insurance necessarily concerns the homes of many of the people of the state. If, in regulating and classifying insurance contracts, the legislature took the foregoing considerations into view and provided for them, we cannot say that in doing so it acted arbitrarily and wholly without reason. "Affirmed." Justices Harlan, Brewer, and Brown dissented. The Constitutionality of Statutes allowing attorney's fees is discussed in the monographic note to Dell v. Marvin, 79 Am. St. Rep. 178-186; Sanitary Dist. v. Ray, 199 Ill. 63, 93 Am. St. Rep. 102, 64 N. E. 1048; Missouri etc. Ry. Co. v. Simonson, 64 Kan. 802, 91 Am. St. Rep. 248, 68 Pac. 653; Matter of Chapman v. New York, 168 N. Y. 80, 85 Am. St. Rep. 661, 61 N. E. 108. HARRIS v. JENNINGS. [64 Neb. 80, 89 N. W. 625.] NUNC PRO TUNC ORDER Evidence on Which to Enter.In entering an order nunc pro tunc, the court is not confined to an examination of the judge's minutes, or written evidence, but may proceed on any satisfactory evidence. (p. 635.) NEW TRIAL-Failure to File Motion for in Time.-A motion for a new trial must be filed within the time prescribed by statute, and if it is overruled because not filed within that time, all matters included therein are unavailing on review by proceedings in error. (p. 636.) George B. Chaney, for the plaintiff in error. J. M. Chaffin, for the defendant in error. 80 HOLCOMB, J. By these proceedings, plaintiff in error, plaintiff below, prosecutes error from an order or ruling of the district court sustaining a motion for nunc pro tunc order. The ruling complained of is evidenced by the following entry on the journals of the trial court, as certified by the clerk: "Now, on this eleventh day of April, A. D. 1899, this cause coming on to be heard nunc pro tunc order granted on motion, showing injunction dissolved as of May 10, 1898, to which ruling of the court the plaintiff excepts," etc. To the writer it appearsdoubtful whether the entry 81 quoted constitutes a valid final order, to reverse which proceedings in error will lie. It is more in the nature of a recital to the effect that the court granted the defendant's motion, and is in itself insufficient and lacking in the formal requisites to show that the court ordered and directed that its journals should be corrected so as to show an order of dissolution of the temporary injunction as of the time stated, and as a nunc pro tunc order. However, we pass this, treating the order as a valid and final one, from which error may be prosecuted. It is argued that the evidence is insufficient to sustain the order, and that there existed on the journals and records. of the court no written memorandum, or other entry of any kind or character, as evidence that the court had at the time stated, or at any other time, ruled on the motion to dissolve the injunction, or had made an order of the kind sought to have evidenced by the correction of the journal asked for. The evidence in support of the motion was quite positive that the court had by a prior order, and at the time mentioned, dissolved the temporary injunction allowed in the case, and fixed the amount of a supersedeas bond to hold the injunction in force until a trial on the merits could be had at the sum of one hundred dollars. The evidence was presented in the form of affidavits by the parties to the action and their attorney. There was no evidence of the order having been made from any minute or other writing appearing on the journals, records, or dockets of the court, and it must be conceded that such evidence would be far more satisfactory, and is regarded as a better class of evidence; and in some jurisdictions it is held that such evidence is essential to sustain a nunc pro tunc order. After speaking to the same point in another case, it is said in Ackerman v. Ackerman, 61 Neb. 72, 84 N. W. 599: "This court, however, has adopted the rule, which seems the better one, that in the exercise of the power of correction of its records the court is not confined to an examination of the judge's minutes, or written evidence, but may proceed upon any satisfactory evidence": Citing School Dist. v. Bishop, 46 82 Neb. 850, 65 N. W. 902, and cases there cited; In re Wight, 134 U. S. 136, 10 Sup. Ct. Rep. 487; Jacks v. Adamson, 56 Ohio St. 397, 60 Am. St. Rep. 749, 47 N. E. 48; 17 Ency. of Pl. & Pr. 931, note 2. The evidence in the case at bar, under the rule stated, was sufficient to sustain the finding and order of the trial court, and we cannot rightfully disturb it on that account. Another insurmountable obstacle presents itself: No motion was made for a new trial within the time provided by statute, and consequently the trial court was right in overruling the motion, as it did, on the ground that the motion was not filed within the time and during the term at which the order complained of was made. The term of court at which the order was entered adjourned sine die on April 11th. The motion for a new trial was not filed until April 13th, and after the adjournment of the term. This neglect is fatal as to any question required to be presented to the trial court by motion for a new trial before a reviewing court is authorized to pass upon such question. The motion not being presented within the time provided by statute, the court was without authority to grant it, and could either have stricken it from the files or overruled it: Nelson v. Farmland Security Co., 58 Neb. 604, 79 N. W. 161, and cases there cited. All matters included in the motion are therefore of no avail to the plaintiff in error, and we need not examine the evidence in support of the motion, or of the proceedings had during the trial, some of which were assigned in the motion as ground for a new trial, and on which error is now sought to be predicated. We find nothing in the record calling for a reversal of the ruling of which complaint is made. For the reasons-stated, the order of the trial court is affirmed. The Evidence upon Which an Order Nunc pro Tunc may be entered. is discussed in the monographic note to Ninde v. Clark, 4 Am. St. Rep. 831-833. In some jurisdictions the court may resort to all. sources of information that are competent under the general rules. of evidence, including the parol testimony of witnesses: Jacks v. Adamson, 56 Ohio St. 397, 60 Am. St. Rep. 749, 47 N. E. 48; Gon-zales v. State, 35 Tex. Cr. Rep. 339, 60 Am. St. Rep. 51, 33 S. W.. 353. In other jurisdictions, however, a judgment nunc pro tunc cannot be entered upon parol evidence alone: Young v. Young, 165, Mo. 624, 88 Am. St. Rep. 440, 65 S. W. 1016. In Missouri the entry can be made only upon evidence furnished by the papers and files in the cause, or something of record, or in the minute-book judge's docket: Missouri etc. Ry. Co. v. Holschlag, 144 Mo. 253, 66 Am. St. Rep. 417, 45 S. W. 1101. The clerk's minutes may be resorted to: Knefel v. People, 187 Ill. 212, 79 Am. St. Rep. 217, 58 N. E. 388; and the judge's minutes are sufficient to authorize an entry: Metzger v. Morley, 197 Ill. 208, 90 Am. St. Rep. 158, 64 N.. E. 280. or KITCHEN v. CHAPIN. [64 Neb. 144, 89 N. W. 632.] MARRIED WOMAN'S Guaranty of Payment of Note.—If a married woman assigns a note which is payable to her order, and guarantees its payment, she is liable on her guaranty, and the pur-chaser need not inquire as to her intended disposition of the proceeds of the sale. (p. 642.) John P. Maule and Morning Brothers, for the plaintiffs in. error. John S. Kirkpatrick, for the defendant in error. 144 DUFFIE, C. William G. Chapin brought this action in the district court of Lancaster county against Mary C. Kitchen and A. D. Kitchen, alleging as his cause of action that he was the owner of a promissory note for five hundred dollars, made by James H. O'Neill, and payable to the order of Mary C. Kitchen; that after the execution and delivery of said note, and before the maturity thereof, the said Mary C. Kitchen sold, assigned and delivered the note to him, and for that purpose the said Mary C. Kitchen and A. D. Kitchen indorsed on the back of said note the following: "For value received, I hereby assign the within note unto William G. Chapin, and hereby guarantee payment of the same and waive demand and notice of protest on same when due. "MARY C. KITCHEN. It is alleged that the note is due and unpaid, and judgment is asked against the defendants. Mary C. Kitchen filed the following answer: "Now comes Mary C. Kitchen, and for her answer to the petition of the plaintiff says at 145 the time the note sued on was executed and the indorsements of assignment and guaranty made, she was a married woman, the wife of her codefendant, A. D. Kitchen, and living with him; that previous to this time she owned some city lots in Lincoln of uncertain value. Her said husband was engaged in the erection of some brick buildings in said city and was needing money. This defendant said to him if he could sell some of her lots she would make a deed to the purchaser, and he, her said husband, could have the money realized from said sales to use in the erection of the said buildings he was erecting. Later he represented to her that he had negotiated a sale for certain lots, and asked her to execute a deed to the same to the defendants O'Neill, which she did. Later he brought to her the note and mortgage in suit and asked her to write her name on the back of it, so he could use it in his business, which she did. The defendant alleges that she had no business dealings with the plaintiff whatever, that she had never been engaged in any trade or business, and did not get or receive any benefit or consideration for the sale of said lots or for the execution of the deed she executed thereto or for the transfer of said note to the plaintiff or for said assignment and guaranty. She alleges that she did not enter into said. contract of guaranty for the purpose of binding her separate estate with reference thereto, but only for the purpose of passing the title of said note so her husband could get money to use in his own business and enterprises. Wherefore, she prays that she may go hence without day and recover her costs." The reply is a practical admission of all the facts set out in the answer, except that she did not indorse the note for the purpose of binding her separate estate, or with reference thereto. The case was tried to the court without a jury, and judgment entered for the plaintiff below, and Mrs. Kitchen has taken error to this court. The only question presented by the record is whether the plaintiff in error, a married woman, is liable upon her guaranty, under the admitted facts in this case. In order 146 to assist her husband in some building operation in which he was engaged, she sold certain lots which she owned in her own right, taking this note as a part of the purchase price. For the purpose of negotiating the note and obtaining money thereon for her hus |