Brown v. Ritner

• Decision Date: 06 June 1894
• Parties: BROWN v. RITNER.
• Court: Nebraska Supreme Court

41 Neb. 52

59 N.W. 360

BROWN

v.RITNER.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

1. The supreme court, upon a petition in error, will not examine the question of the sufficiency of the evidence to support either the findings of a court or the verdict of a jury, unless such question has been first presented to the trial court by a motion for a new trial, and a decision obtained thereon.

2. Such a motion, except upon the ground of newly-discovered evidence, must be filed within three days after the verdict or decision was rendered, unless the party was unavoidably prevented from making the same in time.

3. This court cannot consider entries made upon the trial docket of the district court for the purpose of ascertaining what was decided in the court below. The approved journal entry of a judgment is indisputable evidence of what the judgment was.

Error to district court, Lincoln county; Church, Judge.

Action by William Brown against William C. Ritner. Judgment for defendant, and plaintiff brings error. Affirmed.Grimes & Wilcox, for plaintiff in error.

T. Fulton Gantt and James M. Ray, for defendant in error.

NORVAL, C. J.

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 by 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. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873;Jones v. Hayes, 36 Neb. 526, 54 N. W. 858;Withnell v. City of Omaha (Neb.) 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...