Curran v. Wilcox

• Decision Date: 28 September 1880
• Citation: 6 N.W. 762,10 Neb. 449
• Parties: CURRAN v. WILCOX.
• Court: Nebraska Supreme Court

10 Neb. 449

6 N.W. 762

CURRAN

v.WILCOX.

Supreme Court of Nebraska.

Filed September 28, 1880.

Error to the district court for Clay county. Tried below before Weaver, J.Joseph Lehew, James Laird, and Benjamin F. Smith, for plaintiff in error, cited Gen. St. 632; Smiley v. Sampson, 1 Neb. 83; Dobson, v. Dobson, 7 Neb. 296; Horn v. Queen, 4 Neb. 472; Cameron v. Calkins, N. W. REP. May, 1880, p. 250; Campbell & Bros. v. Ayers, 4 Iowa, 358;Ballance v. Loomis, 22 Ill. 82; Story's Eq. Jur. § 887; Id. §§ 110-113; Stoppelfeldt v. Milwaukee R. Co. 29 Wis. 688;Oliver v. Pray, 4 Ohio, 175, and note, p. 195: McCoy & Gray, and C. J. Dilworth, for defendant in error, cited High on Injunctions, 81, §§ 130-132; 3 Wait's Actions and Defenses, 180; 1 N. W. REP. 130;Monroe v. Elbert, 1 Neb. 174;Doe ex dem. Irvine v. Brown, 6 Ohio St. 12.

MAXWELL, C. J.

This is a petition for a new trial. A demurrer to the petition was sustained in the district court and the cause dismissed. The plaintiff comes to this court on a petition in error. The petition contains a very lengthy and somewhat rambling statement of facts, which are in substance as follows: That the defendant commenced an action against the plaintiff in the district court of Clay county to recover the sum of $200, to which the plaintiff herein filed an answer, setting forth various defences which are set out; that on the trial of the case judgment was rendered against the plaintiff upon a cause of action not at issue in the case; that 40 days were thereupon given the plaintiff in which to prepare a bill of exceptions, and that thereupon he required the reporter of the first judicial district to prepare such bill, containing all the testimony; that said reporter did prepare what purported to be a bill of exceptions, containing all the testimony, and delivered the same to the plaintiff one day before the expiration of the time limited for the delivery of the bill to the adverse party; that the transcript so prepared was found to be so imperfect as to be entirely unintelligible and worthless; that the testimony of several witnesses was omitted therefrom, and the exceptions taken by the plaintiff were also omitted; and that, having relied on said reporter, no private notes of the testimony had been taken by the plaintiff, consequently it was impossible to prepare the bill of exceptions within the time limited, and the attorneys for the defendant refused to agree to an extension of the time, etc.

The act approved February 19, 1877, to provide for stenographic reporters, (Laws 1877, p. 158,) provides as follows: Section 3. “The said reporter shall attend all terms of the district court held within and for the district for which he is appointed, and shall make a stenographic report of all oral proceedings had in such court, including the testimony of witnesses, with the questions to them, verbatim, and any further proceedings...