Brown v. Shamberg
| Decision Date | 27 April 1973 |
| Docket Number | No. 38733,38733 |
| Citation | 206 N.W.2d 846,190 Neb. 171 |
| Parties | Donald W. BROWN, d/b/a Don Air Service, Appellant, v. Virginia SHAMBERG, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Any assignment of error that requires an examination of evidence cannot
prevail on appeal in the absence of a bill of exceptions.
2. Depositions offered in evidence on a motion for summary judgment must be included in a bill of exceptions to be reviewed in this court on appeal. .
Laurice M. Margheim of Bump & Bump, Chadron, for appellant.
Van Steenberg, Myers & Burke, Jack H. Myers, Kimball, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
Plaintiff prosecutes this appeal from an adverse ruling on his motion for judgment notwithstanding the verdict, or alternatively for a new trial. Plaintiff, in two separate causes of action, sought recoverty from the defendant for damages to a helicopter. The first cause of action is predicated of alleged negligence. The second cause of action involved a check, allegedly given as a complete and final settlement of plaintiff's account, including the damages to the helicopter. The trial court entered a summary judgment for the defendant on the second cause of action. Subsequently, plaintiff's first cause of action was submitted to the jury, which returned a verdict for the defendant. We affirm.
The helicopter, which was equipped with dual controls, crashed while the defendant was receiving instruction from an instructor employed by the plaintiff. Plaintiff contends that defendant gave him a check for $14,054, $14,000 of which was to pay for the damage to the helicopter, and $54 to pay for flight instruction, but payment was stopped on the check before it was cashed. Defendant contends the check was given without consideration, within an hour after the crash, while she was under great emotional stress; that she broke down immediately after the check was given; and that she stopped payment on the check as soon as she reached home.
The only assignment of error argued in the brief pertains to the sustaining of the motion for summary judgment as to plaintiff's second cause of action. At the time the motion for summary judgment was filed, there were six depositions with exhibits on file. No bill of exceptions has been filed herein. Plaintiff, however, filed a supplemental transcript to which the depositions were attached. Plaintiff argues the depositions were duly offered into evidence for the purpose of the motion for summary judgment, and were considered by the trial court in rendering his decision to grant the summary judgment on the second cause of action. This raises the question as to whether or not their inclusion in the transcript is sufficient to permit their review in this court in the absence of...
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Rath v. Selection Research, Inc.
...must have been offered into evidence in the trial court and preserved in and made part of the bill of exceptions. See Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973). See, also, DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982) (corresponding rule for affi......
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Vilas v. Steavenson, s. S-90-730
...Pub. Power & Irr. Dist., 237 Neb. 188, 465 N.W.2d 472 (1991); Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959); Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973). Since the state failed to preserve and present a record of the hearing on the motion for summary judgment, this court......
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Keystone Ranch Co. v. Central Nebraska Public Power and Irr. Dist., 88-408
...the court before an order on such a motion may be reviewed. Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959); Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973). In the absence of a record of the evidence considered by the court, it is presumed that the order of the trial court wa......
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Hubbell v. Farmers Ins. Group
...a motion for summary judgment must be included in a bill of exceptions to be reviewed in this court on appeal. See, Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973); Lange v. Kansas Hide & Wool Co., 168 Neb. 601, 97 N.W.2d 246 (1959). In the present case the plaintiff has not filed a ......