Allis v. Newman

• Decision Date: 25 March 1890
• Parties: ALLIS v. NEWMAN ET AL.
• Court: Nebraska Supreme Court

29 Neb. 207

45 N.W. 621

ALLIS

v.NEWMAN ET AL.

Supreme Court of Nebraska.

March 25, 1890.

Syllabus by the Court.

A bill of exceptions was duly presented to the judge before whom the case was tried; and, as no objections or amendments were offered thereto, and he was about to hold court in the county where the case had been tried, he carried the bill with him, and on arriving at the court-room signed the same, and left it on the lawyers' table therein, one end of which seemed to be occupied with papers and records. One of the appellants' attorneys coming into court, the judge stated to him that he had signed the bill, and left it on the table. The attorney, however, made oath that he did not understand the judge, and did not know that the bill had been signed and returned. The bill was removed by some one, and placed among the clerk's papers, and was covered up, and found months afterwards by him after diligent search. On a motion being filed to dismiss the appeal because not taken in six months, held, that the judge, by signing the bill and leaving it where he did, evidently intended to place it in the care of the clerk, but, in the multifarious duties of that officer at the opening of the term, he had failed to file and take charge of the same, and that therefore the time while the bill was thus mislaid would be deducted from the time intervening between the rendition of the judgment and the filing of the transcript in the supreme court.

Appeal from district court, Hamilton county; NORVAL, Judge.

Motion to quash bill of exceptions.

J. H. Smith and Hainer & Kellogg, for appellants.

R. S. Norval and A. W. Agee, for appellee.

MAXWELL, J.

This case is submitted to the court on a motion to “dismiss the appeal for the reason that the same was not filed in this court within six months after the rendition of the judgment.” The failure to file the transcript in this court within six months from the time the judgment was rendered is admitted; but as an excuse for such failure the appellants allege that, without fault on their part, the bill was mislaid, and that, as soon as the same was discovered, it was filed in this court. A large number of affidavits are filed in the case, from which it appears that the bill of exceptions was duly prepared, and presented to the judge before whom the case was tried, and as no objections or amendments were offered to the proposed bill, and as he was about to go to Aurora, Hamilton county, to hold court, he...