Dodge v. Runels

• Decision Date: 01 July 1886
• Citation: 28 N.W. 849,20 Neb. 33
• Parties: FREEMAN C. DODGE ET AL., PLAINTIFFS IN ERROR, v. V. S. RUNELS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

28 N.W. 849

20 Neb. 33

FREEMAN C. DODGE ET AL., PLAINTIFFS IN ERROR, v. V. S. RUNELS, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1886

ERROR to the district court for Hall county. Tried below before NORVAL, J.

AFFIRMED.

OPINION

MAXWELL, CH. J.

This action was brought by the plaintiffs against the defendant to recover the possession of five hundred sheep and sixty-one lambs, which property was taken under the writ and delivered to the plaintiffs. On the trial of the cause the jury found the right of property and right of possession to be in the defendant, and found the value of the property to be the sum of two thousand and seventy-eight dollars, and the damages of the defendant to be the sum of four hundred and fifty dollars. The plaintiff thereupon filed a motion for a new trial, which was taken under advisement by the court, the journal entry being, "And the court not being fully advised in the premises, takes time to consider of its judgment until the next regular term of the court, to which time this cause is continued."

At the next term the attorneys for the defendant filed a remittitur of the sum of $ 449.99 damages; whereupon the court overruled the motion for a new trial, and entered judgment on the verdict.

The attorneys for the plaintiffs thereupon prepared their bill of exceptions, which, after being submitted to the attorneys for the adverse party, was presented to the judge within sixty days, and by him duly signed. A motion is now made in this court to strike the bill of exceptions from the files, for various reasons, the principal one being that it was not prepared and signed until the succeeding term after the verdict was rendered.

As we understand the order of the court below in continuing the cause, the entire cause was continued until the succeeding term--not only the hearing upon the motion but the disposition of the whole case, including the preparation of the bill of exceptions; and this seems to have been the construction placed upon the order by the judge that tried the cause, in signing and certifying the bill. It is evident that but for the remittitur the court would have set the verdict aside; and the attorneys for the plaintiffs had the right to rely upon this as sufficient cause of itself for a new trial. The defendant, therefore, by virtually confessing that sufficient error existed in the record to secure a new trial, cannot, upon removing that, deprive the parties of such other errors in the record as they may deem material in the case. The bill of exceptions, therefore, was duly prepared and signed, and the motion to quash it on that ground must be overruled.

2. The principal grounds of error relied upon are that the verdict is not sustained by sufficient evidence, and error in the measure of damages.

The testimony tends to...