Bryant v. Modern Woodmen of America

• Decision Date: 26 September 1913
• Docket Number: 17,231,17,988
• Citation: 143 N.W. 331,94 Neb. 380
• Parties: HANNAH BRYANT, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT. MODERN WOODMEN OF AMERICA, APPELLANT, v. HANNAH STREIT (NEE BRYANT), APPELLEE
• Court: Nebraska Supreme Court

143 N.W. 331

94 Neb. 380

HANNAH BRYANT, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLANT.

MODERN WOODMEN OF AMERICA, APPELLANT, v. HANNAH STREIT (NEE BRYANT), APPELLEE

No. 17,231, 17,988

Supreme Court of Nebraska

September 26, 1913

APPEAL from the district court for Madison county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

B. D Smith, W. E. Reed and T. S. Allen, for appellant.

William V. Allen and William Dowling, contra.

SEDGWICK J. REESE, C. J., LETTON and FAWCETT, JJ., not sitting.

OPINION

SEDGWICK, J.

This defendant, formerly Hannah Bryant, brought her action in that name in the district court for Madison county against this plaintiff upon a certificate of membership and fraternal insurance, upon the life of her former husband, Ellard E. Bryant. She recovered a judgment in that action, which upon appeal to this court was reversed and the causes remanded for another trial. Bryant v. Modern Woodmen of America, 86 Neb. 372, 125 N.W. 621. Upon another trial in the district court she again recovered a judgment from which the defendant in that action appealed to this court. Afterwards, the company brought this action in the district court for Madison county to obtain a new trial of the former action under section 602 of the code. The district court found against the company and entered a decree dismissing the action for a new trial. From this decree the company appealed to this court, and upon motion the two cases were consolidated and were submitted together.

In the brief of the appellant it is said: "We have assumed that the only issue here is whether or not the appellant is entitled to a new trial. * * * For that reason we have not discussed the evidence in the original case." The brief then states in a general way some reasons for supposing that the judgment in the original case is erroneous. These reasons are derived entirely from the supposed evidence in the case, and no reference is made in the brief to any part of the record supposed to disclose errors requiring a reversal. In this condition of these records, and the submission of the cases, there is no question presented to this court, except the sufficiency of the evidence to support the decree of the district court in refusing the new trial.

The ground relied upon for a new trial is that through the neglect of the official reporter of the district court, and without any fault on the part of the defendant company in the original case, the company was unable to obtain a transcript of the evidence in the original case and procure a settlement of a bill of exceptions. It appears that when the transcript of the evidence was delivered by the official reporter to the attorneys for the company, some 10 or 20 days before the expiration of the time for serving the bill of exceptions, the application for membership and the certificate of membership which had been offered in evidence at the trial were not incorporated in the transcript, not attached thereto, and it is insisted that counsel were unable to obtain these documents in time to settle the bill of exceptions, and for that reason no bill of exceptions was ever properly settled and allowed.

Upon examination...