Etten v. Butt
| Decision Date | 30 June 1891 |
| Citation | 49 N.W. 365,32 Neb. 285 |
| Parties | DAVID VAN ETTEN v. WILLIAM BUTT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before GROFF, J.
AFFIRMED.
D. Van Etten, pro se.
Switzler & McIntosh, contra.
The plaintiff in error brought his action against the defendant in error to recover the sum of $ 90.60, with interest, as a balance alleged to be due him for services rendered as an attorney at law for and at the request of the defendant. The items charged in the plaintiff's account amount, in the aggregate, to the sum of $ 294.90, against which the defendant is credited in the petition with several cash items, amounting to $ 202.30.
The defendant in his answer denies that he is in indebted to the plaintiff in any sum whatever; admits that he employed the plaintiff to defend an attachment suit brought against Butt by Meyer & Raapke, in the district court of Douglas county and avers that he agreed to pay the plaintiff $ 30, in full compensation for all services to be rendered by him in the case, $ 10 of which he alleges was paid at the time plaintiff was retained, and the balance was subsequently paid. The defendant admits he retained the plaintiff to represent him in a suit brought by Vineyard & Schneider against Butt before a justice of the peace. The defendant alleges that the plaintiff, at his request, brought suit against one C. E Mayne to recover the sum of $ 15, due the defendant, and after the action was instituted, but before trial, Mayne paid the money to Van Etten, who appropriated the whole thereof to his own use, and still retains the same. The answer further avers that the plaintiff received from the clerk of the district court of Douglas county, $ 172.30 of money belonging to the defendant, which plaintiff retains and refuses to pay over to him. It is also alleged that all the services performed by the plaintiff, as the attorney of the defendant, were rendered in such a manner as to involve the defendant in needless litigation and costs, and that plaintiff's services were worthless and of no value whatever. The defendant prays judgment against the plaintiff in the sum of $ 217.30 and interest.
The plaintiff replied, denying every allegation of the answer, except the receipt of the $ 172.30, which the defendant has credit for in the petition.
A verdict was returned for the defendant for $ 61.84, the plaintiff's motion for a new trial being overruled, judgment was rendered on the verdict.
The plaintiff's motion for a change of venue was overruled, which ruling is assigned as error. We are unable to consider this assignment for the reason that the motion and the affidavits filed in support thereof, are not a part of the record in this court. It must be presumed that the showing was insufficient to require the trial court to order a change in the place of trial. The journal entry states that the affidavit accompanying the motion was stricken from the files because "it is irrelevant, and is in its nature and general effect scandalous and disrespectful to the court and the several judges thereof." For the same reason the trial judge certifies he refused to allow the affidavit to be incorporated in the bill of exceptions.
It cannot be doubted that scandalous matter, or language disrespectful to the court, contained either in a pleading or affidavit filed in a cause, may be stricken out, and if the objectionable matter is blended with that which is pertinent and proper, so as to be incapable of separation, the whole may be eliminated from the files. If, therefore, the general trend of the affidavit in question was scandalous or disrespectful to the court, it was the duty of the trial court not to permit it to remain on file or to be made a part of the record in the case. If the affidavit was not objectionable, the plaintiff had his remedy by mandamus to compel the trial judge to include it in the bill of exceptions. We must accept the record as we find it, and we are, therefore, unable to determine whether there was any error committed to the prejudice of the plaintiff in striking his affidavit from the files.
It is urged that the court abused its discretion in requiring the plaintiff to go to trial, immediately after his motion for a change of venue was overruled. So far as the record shows, the plaintiff made no application for time to prepare for trial. If he desired the hearing postponed, in order to procure absent witnesses, as is claimed in his brief, he should have made a showing to the court, by affidavit or other testimony, stating the names of the absent witnesses, what they would testify to if present, and the efforts used to procure their attendance. A party cannot wait until after trial and verdict, and then, for the first time, complain that he went to trial without his witnesses being present, when he was aware of their absence before the trial commenced.
The regular panel of petit jurors being incomplete, a special venire facias, by order of the court, was issued, and the sheriff filled the panel. Error is assigned because several of the jurors thus summoned were on the jury that tried the cause. The record not showing that any objection was made in the trial court to the mode of selecting the jury, this assignment in the petition in error will not be considered.
The seventh and eighth assignments in the petition in error, are as follows:
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