Burke v. Cunningham

• Decision Date: 08 November 1894
• Docket Number: 5364
• Citation: 60 N.W. 903,42 Neb. 645
• Parties: CHARLES A. BURKE v. RICHARD CUNNINGHAM ET AL
• Court: Nebraska Supreme Court

60 N.W. 903

42 Neb. 645

CHARLES A. BURKE v. RICHARD CUNNINGHAM ET AL

No. 5364

Supreme Court of Nebraska

November 8, 1894

ERROR from the district court of Lancaster county. Tried below before FIELD, J.

AFFIRMED.

Clark & Allen, for plaintiff in error.

Richard Cunningham, contra.

OPINION

IRVINE, C.

A doubt arises as to whether this case is before us for review on appeal or on petition in error. The action was in form one for the partition of real estate. The transcript was filed within the six months allowed for an appeal, but the bill of exceptions containing the testimony was not filed until after the expiration of the six months. The transcript which was filed was sufficient to give the court jurisdiction on appeal. (Schuyler v. Hanna, 28 Neb. 601, 44 N.W 731.) The day the bill of exceptions was filed Charles A Burke filed a petition in error, in which he styles himself "plaintiff in error and appellant." The Code provides two methods of review, but it does not permit the same judgment to be reviewed both by appeal and on error, and it is evident that to permit a party to pursue both remedies would be intolerable. We must presume that Burke had some object in filing his petition in error; and if so, then that object must have been to abandon his appeal and to transform the proceedings into proceedings in error. The petition in error being filed within the statutory time, this was his privilege, and we shall therefore treat the case as here on error and not as an appeal.

The first error assigned in the petition in error is directed to the overruling of a motion for a continuance. The affidavit on which this motion was based is not embodied in the bill of exceptions and this assignment cannot, therefore, be considered.

The next assignment is that the court erred "in admitting evidence over objections." There are two reasons why this assignment cannot be considered. The first is that there was no motion for a new trial in the district court. The other is that the assignment is too vague for consideration in any event.

The only two remaining assignments are that the judgment is contrary to the evidence and that it is not sustained by the evidence. The failure of the plaintiff in error to present these questions to the trial court by a motion for a new trial precludes us from their examination; but we ought not to pass them on that statement without a reference to the very peculiar condition of the record. As we have said, the action was in form one for the partition of land. The petition alleged that the plaintiff and defendants had purchased certain land under an agreement that each should pay an equal portion of the purchase money and should own equal and undivided interests in the land; that the plaintiff and defendant Edney paid the purchase money and that the defendant Burke had paid nothing. The prayer was for partition and general relief. The answer of Burke admitted...