Miller v. Rolph

• Decision Date: 31 January 1879
• Citation: 1 N.W. 123,8 Neb. 438
• Parties: MATT MILLER, PLAINTIFF IN ERROR, v. B. F. ROLPH, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 438

1 N.W. 123

MATT MILLER, PLAINTIFF IN ERROR,

v.B. F. ROLPH, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

January Term, 1879.

Error from Butler County.

Phelps & Grimison, for plaintiff in error.

Horace Garfield, and Robberts & Steele, for defendant in error.

COBB, J.

--The defendant in error filed a motion to dismiss this case for the following reasons: First, there is no sufficient transcript on file in this court: second, the transcript does not any show jurisdiction in the district court; third, the said plaintiff in error did not file his petition in the district court as required by law; fourth, if this cause was ever tried by the board provided for in § 26 of ch. 20, Gen. Stat. of Nebraska, the district court could acquire no jurisdiction by appeal therefrom, because that is not a court recognized by the constitution; fifth, the decision of the district court is final.

This cause came to this court by petition in error; the same party has been plaintiff in all the courts, and, although the section of the statute under which this proceeding was originally brought, provides that the decision of the district court in such cases on appeal shall be final, yet this court would have jurisdiction to correct errors in the district court in administering that or any other statute. But the plaintiff in error does not point out any errors in the record which this court can consider. The plaintiff assigns two grounds of error: first, that the judgment and decision of the district court is not sustained by sufficient evidence; second, that said judgment was given for the said B. F. Rolph, when it ought to have been given for the said Matt Miller, according to the law of the land.

Now, in order that this court should be able to consider either of these grounds, it was necessary that the plaintiff preserve the evidence in the district court, and bring it here as part of the record in the case. This he has not done. There being no bill of exceptions, this court can only look into the record proper for errors, and, as the plaintiff does not complain of any such, and as all the rulings in the case, except the final decision, were in the plaintiff's favor, we can find no error there.

There is attached to the transcript in this case, what purports to be the testimony taken by the board of justices who originally tried the cause, but whether that was the evidence acted upon by the district court, we are not informed. We do not think it...