Brown v. Ritner

Decision Date06 June 1894
Docket Number5262
CourtNebraska Supreme Court

ERROR from the district court of Lincoln county. Tried below before CHURCH, J.


Grimes & Wilcox, for plaintiff in error.

T Fulton Gantt and James M. Ray, contra.



This was an action in replevin by William Brown against William C Ritner, for the recovery of a horse, which plaintiff claimed by virtue of a chattel mortgage executed by the owner of the animal. The defendant claims the right of possession by virtue of a contract made with the owner of the horse for his keep. The defendant won in the court below, and the plaintiff prosecutes a petition in error, alleging that the verdict is contrary to law and the evidence.

The question we are asked to decide is, whether the lien of the agister is paramount to the lien of plaintiff's chattel mortgage, and this cannot be determined without an examination of the evidence in the bill of exceptions. We cannot review the sufficiency of the evidence to support the finding and judgment, because no motion for a new trial has been passed upon by the trial court. The insufficiency of the evidence to support the verdict of a jury, or the findings of a court, is specially named in section 314 of the Code of Civil Procedure as one of the grounds for a new trial, and in order to review the evidence, by petition in error, a motion for a new trial, alleging the insufficiency of the evidence must be presented to the district court and a ruling obtained thereon. This proposition is well established by repeated judicial utterances of this court. (Cropsey v. Wiggenhorn, 3 Neb. 108; Carlow v. Aultman 28 Neb. 672, 44 N.W. 873; Jones v. Hayes, 36 Neb 526, 54 N.W. 858; Withnell v. City of Omaha, 37 Neb. 621, 56 N.W. 381.) It is due the trial court, as well as to litigants, that every opportunity should be afforded for the examination and correction of errors while the case is pending in the court below, where the same can be reviewed with but little expense or delay. For this purpose the legislature has authorized the filing of a motion for a new trial, and it must be presented to, and passed upon by, the trial court before the decision can be reviewed by this court on error. The journal entry of the judgment found in the transcript shows that the cause was tried to the court, without a jury, on June 19, 1891, and was taken under advisement, and that on the 10th day of November, following, a judgment for the plaintiff in due form was rendered. The transcript also contains a copy of a motion for a new trial, indorsed "Filed December 9, 1891." We must assume that this motion is still pending in the district court. If it has ever been passed upon, the copy of the journal entry fails to disclose it. The trial docket of the district court contains this entry in the case under date of December 7, 1891: "Plaintiff granted leave to file motion for a new trial. Motion overruled. Exception. Forty days from rising of court to perfect bill of exceptions." This memorandum, made by the trial judge upon his docket, is not competent evidence to show that the motion in question was denied. (See Ward v. Urm...

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