Blaha GMC-Jeep, Inc. v. Frerichs

• Decision Date: 02 April 1982
• Docket Number: GMC-JEE,INC,No. 43919,43919
• Citation: 317 N.W.2d 894,211 Neb. 103
• Parties: BLAHA, a Nebraska corporation, Appellant, v. Everett FRERICHS, doing business as A. F. Real Estate, Appellee.
• Court: Nebraska Supreme Court

Page 894

317 N.W.2d 894

211 Neb. 103

BLAHA GMC-JEEP, INC., a Nebraska corporation, Appellant, v. Everett FRERICHS, doing business as A. F. Real Estate, Appellee.

No. 43919.

Supreme Court of Nebraska.

April 2, 1982.

Syllabus by the Court

1. Records: Appeal and Error. On appeal from the county court to the District Court, it is the duty of the appellant to see that a record of the evidence in the county court was properly presented in the District Court.

2. Records: Appeal and Error. In the absence of a properly certified bill of exceptions, review on appeal is limited to whether the pleadings support the judgment entered by the lower court.

3. Records: Appeal and Error: Case Overruled. In cases involving appeals from the county court to the District Court prior to the effective date of Neb.Rev.Stat. § 24-541.06 (Supp.1981), wherein it appears obvious from the record filed in this court that both the parties and the district judge considered the county court bill of exceptions as having been received in evidence, we will so consider it on appeal to this court. To the extent that Tunks v. O'Brien, 195 Neb. 735, 240 N.W.2d 349 (1976), conflicts with this holding, it is overruled.

4. Negotiable Instruments: Pleadings. When the signatures on a negotiable instrument are admitted, the production of the instrument entitles the holder to recover on it unless the defendant establishes a defense. However, such a defense must be affirmatively pleaded.

5. Pleadings. Under the code system of pleading it is not necessary to state a cause of action or a defense in any particular terms. It is only necessary to plead the facts, not the theory of recovery or defense.

6. Judgments: Appeal and Error. The decision of a trial judge on a question of fact in a law action will not be set aside on appeal unless clearly wrong.

7. Negotiable Instruments: Consideration: Proof. Where failure of consideration is pleaded as a defense to an action on a negotiable instrument, the burden is upon the defendant to prove such defense.

8. Negotiable Instruments: Consideration. There are two kinds of consideration for a negotiable instrument, i.e., that which confers a benefit upon the promisor and that which causes a detriment to the promisee.

9. Negotiable Instruments: Consideration. In order for a detriment to the promisee to constitute a valid consideration for a negotiable instrument, it must have been within the express or implied contemplation of the parties and known to and agreed to by them.

Dennis L. Arfmann of Robert M. Brenner Law Office, Gering, for appellant.

Donald J. Tedesco, Sidney, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

This is an action brought by the plaintiff, Blaha GMC-Jeep, Inc., in the county court of Cheyenne County to recover the sum of $1,875.19 from the defendant, Everett Frerichs. This sum represented the face amount of a check which had been issued by Frerichs to pay for repairs allegedly made by Blaha to Frerichs' truck tractor, and on which check Frerichs had issued a "stop payment" order.

Following a judgment in favor of Blaha, Frerichs appealed to the District Court. There the case was tried de novo on the record, with some additional evidence being permitted as provided for by Neb.Rev.Stat. § 24-541 (Reissue 1979). The District Court reversed the judgment of the county court and ordered the petition dismissed. Blaha has appealed to this court, assigning as errors: (1) The transcript and bill of exceptions from the county court not having been offered in evidence in the District Court, the original judgment should have been affirmed because it was supported by the pleadings; (2) Failure of consideration, the defense upon which Frerichs claims he relied, was not specifically pleaded; and (3) There was not a total failure of consideration because the evidence disclosed that there was a benefit or advantage to Frerichs and a loss or detriment to Blaha.

As to appellant Blaha's first assignment of error, a procedural question, the court is left to its own devices. Blaha cites no statutory law and only case law which preceded 1972 Neb.Laws, L.B. 1032, Neb.Rev.Stat. §§ 24-541 et seq. (Reissue 1979), which was applicable at the time of trial. The appellee Frerichs simply chose to ignore the problem in his brief.

Appeals of this nature taken from the county court "shall be de novo on the record," with discretion in the District Court to "receive additional evidence if the court determines that such evidence is reasonably necessary to determine the issues ...." § 24-541.

The District Court did, over the objections of Blaha, permit the introduction of additional evidence. This testimony, which comprised most of the entire 49 pages of the District Court bill of exceptions, was devoted to Frerichs' counterclaim, which is not in issue on this appeal. However, some of the comments made by Blaha's counsel are of some importance in determining what in fact the District Court judge did consider in reviewing the judgment of the county court. Consideration of this question is important because it is apparent from the record that the county court bill of exceptions was never offered or received in evidence.

In support of his objection to the reception of additional evidence, counsel for the plaintiff stated in part that "there is no new evidence reasonably necessary to determine the issues to make findings of fact or to permit the Court to render judgment in the proceeding on the appeal from the County Court." He goes on to state: "I believe the testimony and I have got it, several pages in the bill of exceptions, I have my copy with me, on at least--on pages 73, I believe there was nothing wrong with the transmission and at page 90 of the bill of exceptions ...." Because his reference to pages 73 and 90 went beyond the number of pages in the bill of exceptions from the District Court, he could only have been referring to the one filed from county court.

On the date of trial in District Court, June 28, 1980, the judge stated: "Pursuant to statute the appeal here this morning will be heard de novo on the record with the addition that Mr. Frerichs through counsel has requested permission to adduce additional evidence on the appeal .... I have glanced through the bill of exceptions, I do not believe there is a necessity for opening statements ...." During the course of the trial on appeal, the following exchange occurred: "Q. [By Mr. Tedesco] Now, Mr. Evans, you have given testimony in this case before, haven't you? A. Yes. Q. And I am not going to go through that entire amount but I believe it was your testimony at the earlier hearing that assuming that a truck had been revved up in excess of 2,000 rpm's that the popping of the clutch would result in some sort of damage to the truck, is that correct? Mr. Brenner: To which, Your Honor, I would object as to not stating the facts contained in the record and not fairly reflecting the evidence or the statements in the record. The Court: I will ask you, Mr. Tedesco, is there anywhere in the record that the truck was revved up to that specific amount of rpm's? Mr. Tedesco: I believe so, Your Honor, I would have to look at it, though. The Court: It is your contention that that is incorrect? Mr. Brenner: That is correct, Your Honor. Mr. Tedesco: Can I offer the bill of exceptions, if that is permissible? The Court: I think you need not, you can simply refresh the Court's recollection of what is in the record, the same as if I read it."

The rules applicable to this situation would seem to be direct and unambiguous. On appeal from the county court to the District Court, it is the duty of the appellant to see that a record of the evidence in the county court was properly presented in the District Court. Riggert v. King, 192 Neb. 607, 223 N.W.2d 155 (1974). In the absence of a properly certified bill of exceptions, review on appeal is limited to whether the pleadings support the judgment entered by the lower court. Allgood v. Nebraska Humane Society, 197 Neb. 373, 248 N.W.2d 778 (1977). Blaha would have us apply that same rule to an appeal from county court to District Court, which would give rise to the situation that if the record failed to disclose that the bill of exceptions from county court was received in District Court, there would be nothing left for the district judge to do but examine the pleadings, and upon finding that they supported the judgment of the county court, affirm that judgment.

The case of Tunks v. O'Brien, 195 Neb. 735, 240 N.W.2d 349 (1976), contains facts somewhat paralleling the situation here. Therein we said: "The bill of exceptions from the county court was filed but was not introduced in evidence. The District Court reviewed the case, considered the bill of exceptions in making his decision, and affirmed the judgment of the county court. Defendant has appealed to this court and there is no properly certified bill of exceptions in accordance with the revised rules of this court, although the county court bill of exceptions is a part of the transcript here.

"When a case is tried in the District Court upon the record from a lower tribunal, that record must be certified as the bill of exceptions in accordance with the Revised Rules of the Supreme Court, 1974, before it can be considered on appeal to this court. In the absence of a proper bill of exceptions, any assignment of error that requires an examination of evidence cannot prevail on appeal. In such a case, the only question presented to this court is the sufficiency of the pleadings to sustain the judgment of the trial court." Id. at 736-37, 240 N.W.2d at 350.

However, in the case before us we are not faced with the absence of a properly certified bill of exceptions. It is simply...