Achenbach v. Pollock
| Decision Date | 02 April 1902 |
| Docket Number | 10,506 |
| Citation | 90 N.W. 304,64 Neb. 436 |
| Parties | CLEM B. ACHENBACH ET AL. v. JOHN M. POLLOCK |
| Court | Nebraska Supreme Court |
ERROR from the district court for Lancaster county. Tried below before HALL, J. Affirmed.
AFFIRMED.
Billingsley & Greene, for plaintiffs in error.
Kirkpatrick & Hager, contra.
ALBERT C. DUFFIE and AMES, CC. concur.
This is an action in replevin. There was a trial to a jury, which resulted in a verdict for the plaintiff. From a judgment rendered thereon, the defendants prosecute error to this court.
All assignments of error, save one, which will be noted presently, are predicated on the rulings of the trial court which are required to be brought, and which were thus brought, to its attention by motion for a new trial. The ruling of the court on that motion is not complained of in the petition in error. Such being the case, the question arises whether the failure to assign error on the ruling of the court on the motion for a new trial precludes an examination of such errors here. This court has twice passed on that question. In Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955, in an opinion by RAGAN, C. it was held that such errors would be reviewed notwithstanding such omission. No authorities are cited in support of that opinion. In James v. Higginbotham, 60 Neb. 203, 82 N.W. 625, in an opinion by SULLIVAN, J. a contrary conclusion was reached. So the question is still an open one in this state. In our opinion, the latter case states the correct rule, and is fully sustained by the authorities there cited. The defendants are here seeking to reverse the judgment of the trial court. It is but fair to assume that they are satisfied with every ruling of which they make no complaint. They make no complaint of the ruling on the motion for a new trial. In other words, they are satisfied with that ruling. If they are satisfied with that ruling, then they must be held to have waived every error assignable in such motion. Lowrie v. France, 7 Neb. 191; Murray v. School District, 11 Neb. 436, 4 N.W. 316.
It may be suggested that the assignment that the court erred in overruling the motion for a new trial is covered by an assignment in detail of the rulings complained of in such motion. With equal truth could it be said that, having taken an exception to each of such rulings, an exception to the ruling on the motion for a new trial is superfluous. But this court has held otherwise, in the two cases last cited. Both suggestions are based on the assumption that, if any of the rulings complained of in the motion were erroneous, it necessarily follows that an order overruling such motion is also erroneous. That this is not true, is obvious. The motion may have been filed out of time. Errors in the progress of the trial may have been subsequently waived. There may have been an improper joinder of parties to the motion, or other reasons to justify the court in overruling it. If so, whatever the intrinsic merits of the motion, none of the rulings therein complained of can be successfully urged in this court as grounds for reversal. Hence, were every ruling, which is required to be brought to the attention of the trial court by motion for a new trial, assigned in the petition to this court, yet, in the absence of complaint of the ruling on such motion, the presumption of regularity in the proceedings of the trial court is not negatived. To our minds it is clear that a failure to complain in the petition in error of the ruling on the motion for a new trial precludes an examination of the rulings made by the trial court during the progress of the trial. That such assignment is rarely omitted clearly indicates that the profession regards it as essential.
This leaves us but one question to determine, and that is whether in this case the verdict is sufficient to support the judgment. The verdict is as follows:...
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