Doolittle v. American National Bank of Omaha

• Citation: 78 N.W. 926,58 Neb. 454
• Decision Date: 19 April 1899
• Docket Number: 8825
• Parties: WILLIAM F. DOOLITTLE ET AL. v. AMERICAN NATIONAL BANK OF OMAHA
• Court: Supreme Court of Nebraska

78 N.W. 926

58 Neb. 454

WILLIAM F. DOOLITTLE ET AL. v. AMERICAN NATIONAL BANK OF OMAHA

No. 8825

Supreme Court of Nebraska

April 19, 1899

ERROR from the district court of Douglas county. Tried below before HOPEWELL, J. Affirmed.

AFFIRMED.

David Van Etten, for plaintiffs in error.

Howard B. Smith, contra.

OPINION

HARRISON, C. J.

This action was instituted by defendant in error in the district court of Douglas county February 3, 1894, to recover of plaintiffs in error an amount alleged to be its due on a promissory note signed by them. For plaintiffs in error there was filed on October 26, 1894, what was styled a "substituted answer," and a motion was filed for the bank that portions of the substituted answer be stricken out, which motion was on hearing sustained. Without awaiting the trial and judgment in the action there was an attempt to present to this court for review the order striking out portions of the "substituted answer." To this error proceeding there was filed an objection to the jurisdiction on the ground that the order of which there was complaint was not a final one. The objection was sustained and the proceeding dismissed. In the meantime issues had been joined in the district court on the merits of the action, and of them there had been a trial, which resulted in a verdict in favor of the bank. At some time during the course of the action in the district court there was filed what was designated an "amended substituted answer," but this was apparently without leave of court obtained. At the time the motion to strike out portions of the "substituted answer" was sustained it was a part of the order that the parties were given seven days from this date in which to prepare and present for the inspection of the court an amended answer. It does not appear that there was any compliance with the portion of the order just quoted. There was a motion for a new trial, which was heard, and on consideration overruled. The plaintiffs in error did or could not procure a bill of exceptions within the time allowed or apparently at any time, or have not done so. The first motion for a new trial was filed of date October 26, 1895, and on November 7, 1895, and of the September, 1895, term of the court, was overruled and judgment rendered on the verdict. On October 28, 1896, a second motion for a new trial was filed which reads as follows: "Now come defendants and move the court to vacate and set aside the judgment and verdict herein and grant a new trial in said action, for the reason that, without the fault of defendants, they have been unable to obtain a bill of exceptions of the proceedings and evidence on trial, and thereby have so been deprived of their right to be heard in the court of last resort of said state. This motion is supported by the affidavits hereto attached, marked Exhibits 'A' and 'B,' respectively, hereof, and hereby made a part of this action." This was during the September, 1896, term of the court. The trial...