Bickell v. Dutcher

• Decision Date: 23 November 1892
• Citation: 35 Neb. 761,53 N.W. 663
• Parties: BICKELL ET AL. v. DUTCHER ET AL.
• Court: Nebraska Supreme Court

35 Neb. 761

53 N.W. 663

BICKELL ET AL.

v.DUTCHER ET AL.

Supreme Court of Nebraska.

Nov. 23, 1892.

Syllabus by the Court.

1. This court will not, on the motion of an appellant, require the appellee to supply exhibits claimed by the former to have been introduced in evidence in the district court, when such exhibits have never been attached to or made a part of the bill of exceptions.

2. The appellant, on presenting his bill of exceptions for settlement and allowance, objected to certain exhibits attached thereto by the official stenographer, on the ground that they were not true copies of the original; whereupon they were stricken out by order of the trial judge, and the bill of exceptions allowed without them. Held, that this court will not entertain a motion by appellant to require appellee to supply such exhibits.

3. The time within which an appeal may be taken from a decree of the district court does not begin to run until such decree has been entered of record, so that it is within the power of the appellant to comply with the statute regulating appeals by filing in this court a certified transcript of the proceedings of the district court.

4. The case of Horn v. Miller, 29 N. W. Rep. 260, 20 Neb. 98, overruled.

Appeal from district court, Douglas county.

Action by C. C. Bickell and others against Warren Dutcher and others. On appeal from a decree of the district court foreclosing certain mortgages and liens, the plaintiffs moved to dimiss the appeal, and defendants moved that plaintiffs be required to furnish certain exhibits used in the court below. Motions overruled.David Van Etten, for appellants.

Howard B. Smith and Geo. W. Covell, for appellees.

POST, J.

This is an appeal by the defendants Gallagher and wife from a decree of the district court of Douglas county foreclosing certain mortgages and mechanics' liens, and for the sale of the property in controversy in satisfaction thereof. The questions submitted for consideration at this time are presented by the motion of appellants to require appellees to supply certain exhibits, which they allege were introduced in evidence before the district court, and are not included in the bill of exceptions filed in this court; and the motion of appellees to dismiss the appeal for the reason that it was not taken within the time allowed therefor by law. It is alleged in appellants' motion that Exhibits C and D--the plans and specifications for the building which is the subject of the controversy--were introduced in evidence, “which exhibits have disappeared from said records, and have never been attached to said bill of exceptions as such, notwithstanding appellants' written objections attached thereto, and appellants move the court that appellees be required severally to produce said exhibits to be attached to the bill of exceptions,” etc. Numerous affidavits have been filed by the respective parties in support of and against the motion, from which it appears that when the bill of exceptions was prepared by the official stenographer at the request of appellants, the two exhibits in question could not be found. The stenographer thereupon procured from one of the appellees the original plans and specifications, of which the exhibits in question were duplicates, and attached them to the bill of exceptions. Objection being made by Mr. Van Etten, attorney for appellants, to such copies, they were excluded by the trial judge, Hon. E. WAKELEY, and the bill of exceptions allowed and signed without such exhibits having been attached thereto. The motion of appellants is without merit. The exhibits were a part of the evidence in the district court, and, if the copies furnished by the court reporter were incorrect, appellants should have had them corrected in that court, or before the trial judge. They appear to over-look the fact that it was their own bill of exceptions, and that it was their duty to present for allowance a true bill. If the missing papers had been introduced in evidence by appellees, and remained in their possession or under their control, we have no doubt the district court would have required them to be supplied upon motion of appellants. It is alleged by appellants that the Exhibits C and D were introduced in evidence by them, and left in the custody of the stenographer, but the part of the record to which we have been referred contains no reference to them except that they were identified by the witness Finley, and marked by the stenographer. Nor are we able, after a careful examination of the voluminous record, to discover that they were ever offered in evidence. But in no event is it the province of this court to correct the bill of exceptions, and the motion of appellants should be denied.

2. The question presented by appellees' motion to dismiss the appeal is attended with more embarrassment, in view of the conclusion of the majority of the court in Horn v. Miller, 20 Neb. 98, 29 N. W. Rep. 260. Before making further reference to that case, let us examine the facts disclosed by the record in this. The decree begins with the following recital: “Afterwards, at the May term of said court, and on the 30th day of July, 1891, a decree was...