Cheney v. Wagner

• Decision Date: 17 September 1890
• Citation: 30 Neb. 262,46 N.W. 427
• Parties: CHENEY v. WAGNER.
• Court: Nebraska Supreme Court

30 Neb. 262

46 N.W. 427

CHENEY

v.WAGNER.

Supreme Court of Nebraska.

Sept. 17, 1890.

Syllabus by the Court.

1. The failure to file a motion for a new trial in the court below, while it will prevent a review of the errors occurring at the trial, is no cause for striking the petition in error and transcript from the files.

2. No exception is necessary to a final judgment.

3. Petition in error and transcript filed within one year from the date of the trial will be retained as an error case.

Error to district court, Johnson county.

S. P. Davidson, for the motion.

Chas. E. Magoon, contra.

MAXWELL, J.

This is a motion to strike the petition in error and transcript from the files-- First, because no motion for a new trial was filed in the court below; second, no exceptions taken to the final judgment; and, third, because the transcript was not filed “within the time allowed by law for taking and docketing appeals.”

The failure to file a motion for a new trial, while it will prevent an examination of the proceedings occurring on the trial, is no ground for dismissing a case filed in this court, as the errors complained of may be apparent from the pleadings and judgment.

Neither is the second ground of the motion well taken. No exception is necessary to a final judgment. Morrow v. Sullender, 4 Neb. 375; Black v. Winterstein, 6 Neb. 224; Parrat v. Neligh, 7 Neb. 459; Jones v. Null, 9 Neb. 256, 2 N. W. Rep. 350;Welton v. Beltezore, 17 Neb. 401, 23 N. W. Rep. 1.

The third objection is unavailing. Final judgment was rendered on the 24th of December, 1887, and the transcript and petition in error filed in this court December 13, 1888, being within one year from the rendition of the judgment. As an error case, it was filed in time. The motion is overruled. Judgment accordingly.

The other judges concur.