Columbia National Bank of Lincoln v. German National Bank of Lincoln

• Decision Date: 08 December 1898
• Docket Number: 8509
• Citation: 77 N.W. 346,56 Neb. 803
• Parties: COLUMBIA NATIONAL BANK OF LINCOLN v. GERMAN NATIONAL BANK OF LINCOLN
• Court: Nebraska Supreme Court

77 N.W. 346

56 Neb. 803

COLUMBIA NATIONAL BANK OF LINCOLN v. GERMAN NATIONAL BANK OF LINCOLN

No. 8509

Supreme Court of Nebraska

December 8, 1898

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

REVERSED AND REMANDED.

J. H Broady and E. E. Brown, for plaintiff in error.

N. C Abbott and Abbott, Selleck & Lane, contra.

OPINION

HARRISON, C. J.

On June 2, 1893, the State Bank of Cortland was engaged in the business suggested by its name, and at the place thereby indicated, and in the course of such business drew and forwarded an order or a check on the German National Bank of Lincoln in favor of "J. H. McClay, cashier," he being such officer of the Columbia National Bank of Lincoln for the sum of $ 898, and inclosed the same in an envelope addressed "Columbia National Bank, Lincoln, Nebraska," and mailed the package. On June 3 it did likewise in relation to an order or check similar in form and substance in the material portions except amount, which was $ 3.88. The instruments, or checks we may call them,--for whatever may be the proper technical designation they were in effect checks and to be considered as such (Bull v. First Nat. Bank of Kasson, 123 U.S. 105, 31 L.Ed. 97, 8 S.Ct. 62), --were received through the mail by the Columbia National Bank on June 7, 1893, and were, in the morning of the day of reception, presented to the drawee for payment, which was refused. The bank of Cortland had an account with the German National Bank, and on the morning of June 7, 1893, there was to the credit of the former the sum of $ 983, which was subject to check. At the close of business on June 6, 1893, the bank of Cortland suspended, passed into the hands of a receiver, who afterward continued in possession for the sole purpose of adjustment of its affairs. The bank of Cortland was a debtor of the German National Bank, the indebtedness being evidenced by promissory notes which were payable on dates subsequent to June 7, 1893, or they were not then due, but on that date the amount, which was shown by the open account, in favor of the bank of Cortland was by the German National Bank credited as a payment on one of the notes to which we have just referred, and the account balanced or closed. In this, an action by the Columbia National Bank against the German National Bank to recover the amount of the two checks sent it by the bank at Cortland, the defendant was accorded a judgment, to reverse which the plaintiff has prosecuted an error proceeding to this court.

What may not be inaptly termed a preliminary question, which has its origin in the condition of the record as presented, is raised and urged for the defendant. The certificate of the trial judge of the allowance of the bill of exceptions recites that the document contains "all the testimony adduced or offered on the hearing of the" cause, and in other portions of its statements the reference in each is to "testimony." It is of this it is objected that it is insufficient, inasmuch as "testimony" means but a part of the evidence, and the certificate should show that all the evidence was included in the bill of exceptions. It is incontestably true that "testimony" and "evidence" are not synonymous terms; that testimony is but a kind or species of evidence; that the former is in a trial the portion of the latter which may be given orally by witnesses; that the latter is inclusive of the testimony of witnesses, documents, etc.; that "evidence" is the generic term (Gazette Printing Co. v. Morss, 60 Ind. 153); and if we were confined to the certificate and could look no further, it might be fatal to the bill of exceptions (Gazette Printing Co. v. Morse, supra; Lindley v. Dakin, 13 Ind. 388); but an examination of other parts of the document reveals that it was presented, as the law required, to the adverse party for examination and proposal of amendments, and returned indorsed, "I herewith return the within bill of exceptions and suggest no amendments," over the signature of counsel. From such an indorsement the presumption arises that the bill of exceptions, on which it appears, contains all the evidence, though the certificate of the trial judge may not so state. (Cattle v. Haddox, 14 Neb. 59, 14 N.W. 803.) There being nothing in this record to indicate to the contrary, such presumption must be indulged and govern. Furthermore, if the certificate be read in...