Bd. of Cnty. Comm'rs of Jefferson Co. v. Saxon

• Decision Date: 23 January 1880
• Citation: 10 Neb. 14,4 N.W. 309
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF JEFFERSON CO., APPELLEES, v. JOHN SAXON, APPELLANT.
• Court: Nebraska Supreme Court

10 Neb. 14

4 N.W. 309

THE BOARD OF COUNTY COMMISSIONERS OF JEFFERSON CO., APPELLEES,

v.JOHN SAXON, APPELLANT.

Supreme Court of Nebraska.

Filed January 23, 1880.

Appeal from the district court for Jefferson county.Brown & Marshall, for appellees.

John Saxon, pro se.

LAKE, J.

This case is now before us on a motion by the defendant to have his appeal, heretofore dismissed, reinstated. The condition of the case, briefly stated, is as follows: The action was in equity, and was brought to quiet the title to a plat of ground of which the county of Jefferson claimed to be the owner and on which its court-house stood. Final judgment on the issue joined was rendered by the district court for said county on the twentieth of November, 1877, and a transcript, for the purpose of an appeal, filed in this court on the sixteenth day of May, 1878. This transcript contained what purported to be a bill of exceptions, which, however, had not been formally allowed or signed by the district judge. At the July term of this court, 1878, the defendant on his own motion withdrew the record from the files of this court with the avowed purpose of procuring a formal allowance of the exceptions, together with the signature of the judge thereto On the nineteenth of November, 1878, in vacation, the record was again filed with the clerk of this court, with this certificate of the trial judge appended to the bill of exceptions: “The State of Nebraska, county of Jefferson, ss. It is hereby certified that I have examined the foregoing record, and that I do hereby approve and allow the same. (Signed: A. J. Weaver, Judge.)” There was no date to this certificate, but inasmuch as the record was not withdrawn from the files until the July term, 1878, it must have been after the time for perfecting the appeal had fully expired.

At the next term of this court, and on the seventh day of January, 1879, the plaintiff moved to strike from the files and dismiss the appeal on two grounds-- First, because “no motion was made for a new trial in the district court;” and, second, because “the transcript of the proceedings in the court below was not filed in this court within the time provided by law” for appeal cases. This motion was sustained on the second ground assigned, the holding then being that the voluntary withdrawing of the entire record, leaving nothing of the case in this court, without any saving order as to the defendant's rights under the appeal, and there being no apparent excuse for the delay in obtaining the judge's certificate, was equivalent to a voluntary dismissal by the appellant. And this we again here affirm as a correct rule of practice. And now, on this motion for the reinstatement of the appeal, it is made to appear by the affidavit of the defendant, together with the certificate of the district judge before whom the case below was tried, that the want of an authentication to the bill of exceptions was the result of oversight or inattention merely; that, although the judge did not so certify, yet the fact was the defendant read the bill to him, and he considered it correct; that at the request of the defendant he handed it to the clerk of this court to be filed; and that after it was withdrawn from...