Cunningham v. Burke

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

42 Neb. 645

60 N.W. 903

CUNNINGHAM

v.BURKE ET AL.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. When a case is in its nature appealable, and a transcript is filed within the time allowed for appeal, but thereafter, and within the time permitted for instituting proceedings in error, the appellant files and attaches to the transcript a petition in error, he will be held to have abandoned his appeal and elected to proceed in error.

2. In an action for partition the court found on the trial of the issues that partition could not be made, and in the judgment confirming the interests of the parties ordered a sale of the land. The judgment was held to be irregular, but not without jurisdiction, and, as it was not complained of because of this irregularity, either by a motion for a new trial or by assignment of error, held, that it could not be reversed.

Appeal from district court, Lancaster county; Field, Judge.

Action for partition by Richard Cunningham against Charles A. Burke, impleaded with Gertrude T. Edney. There was a judgment for plaintiff, and defendant Burke appeals. Affirmed.Paul F. Clark, for appellant.

Richard Cunningham, for appellee.

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 the plaintiff 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 plaintiff 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 of 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...