Fitzgerald v. Brandt

• Decision Date: 11 April 1893
• Citation: 36 Neb. 683,54 N.W. 992
• Parties: FITZGERALD ET AL. v. BRANDT ET AL.
• Court: Nebraska Supreme Court

36 Neb. 683

54 N.W. 992

FITZGERALD ET AL.

v.BRANDT ET AL.

Supreme Court of Nebraska.

April 11, 1893.

Syllabus by the Court.

1. Counsel for appellants in a case where the appellees were numerous, whose interests were diverse, and represented by different counsel, left the draft of a proposed bill of exceptions at the office of counsel for one of the appellees, and notified counsel for the others that the proposed bill of exceptions was there for their inspection, and would remain for the time allowed by statute. Held, that this was not such a submission of the exceptions as required by section 311 of the Civil Code, and that the bill of exceptions would be quashed as to the appellees, to whom it was not otherwise submitted.

2. Section 311 of the Civil Code makes it the duty of a party to whom is submitted a draft of exceptions for examinations to return it with his proposed amendments, if any, within 10 days from its submission.

3. The time fixed by section 675 of the Civil Code for perfecting appeals in equity cases is jurisdictional, and this court cannot extend it unless it clearly appears that the failure to perfect the appeal is in no wise attributable to the laches of appellants.

4. Unless a motion for a new trial is made within three days after the verdict or decision, this court cannot examine any of the errors which it is alleged occurred at the trial.

5. A motion for a new trial on the ground of newly-discovered evidence was properly denied, when such new evidence was competent under the pleadings in the case, and the witness who was to furnish the new evidence testified on the trial was examined by the applicant for the new trial, and in which examination no effort was made to elicit any of the facts now claimed to be newly-discovered evidence.

6. To entitle a party to a new trial on account of newly-discovered evidence, is not enough that the evidence is material and not cumulative; it must further appear that the applicant for the new trial could not, “by the exercise of reasonable diligence, have discovered and produced such evidence at the trial.”

7. When it is sought to review a decree in equity by error proceedings, and the only error alleged is that the pleadings do not support the decree, every reasonable presumption must be indulged in support of the correctness of the decree; and, unless it certainly appears that no such decree as rendered could lawfully be pronounced on the pleadings, it will not be disturbed.

Commissioners' decision. Appeal from district court, Platte county; Post, Judge.

Action by John Fitzgerald against Reinhold Brandt and others to enforce a material man's lien. There was a decree settling the priority of liens, and, a motion for a new trial being denied, plaintiff, and defendants William Geizer and others, appeal. Affirmed.Lamb, Ricketts & Wilson, C. J. Garlow, and Burke & Cunningham, for appellants.

Sullivan & Reeder, M. Whitmoyer, W. H. Munger, and McAllister & Cornelius, for appellees.

RAGAN, C.

The appellant John Fitzgerald brought suit to the district court of Platte county to recover a sum of money from appellees Brandt & Fleming for brick furnished them for the erection of a brick hotel on lot 8, block 85, in the city of Columbus,Neb., with a prayer for a material man's lien on the property. In addition to Brandt & Fleming, the following parties were made defendants to the suit and filed answers, most of them, for material furnished for the erection of said hotel, viz. C. A. Mast, Aug. Boetcher, Thomas Price, Hugh Hughes, Charles Schroeder, Aug. Dietrichs, Pomerene & Percival, William Geizer, Hooker & Orr, Peregory & Moore, and the Adamant Wall & Plaster Company. On October 3, 1890, the court entered a decree, to which John Fitzgerald, the Adamant Wall & Plaster Company, William Geizer, Thomas Price, Hooker & Orr, and Pomerene & Percival duly excepted, and at the same time obtained from the trial court 40 days in which to reduce their exceptions to writing, which time was on December 22, 1890, at request of appellants, by the trial judge extended 40 days, and on the 22d day of October filed with the clerk of the district court their bond for the appeal of the case to the supreme court. On December 5, 1890, appellants filed their motion for a new trial; on December 24, 1890, the official reporter of the trial court filed with the district court clerk a duly certified transcript of all the evidence had at the trial; on January 17, 1891, the motion for a new trial was overruled; on April 25, 1891, the trial judge allowed and signed the bill of exceptions; and on May 7, 1891, the appellants filed in this court their petition in error, and submitted a motion to docket the case as an appeal. Appellees Dietrichs and Boetcher at the same time filed a motion to quash the bill of exceptions on the ground that it was not submitted to them or their counsel for examination before its allowance by the trial judge. The appellees were represented in the case and on the trial as follows: C. A. Mast, Brandt & Fleming, by Sullivan & Reeder; Aug. Dietrichs, Aug. Boetcher, D. S. Morgan & Co., Peregory & Moore, by McAllister & Cornelius; Columbus State Bank, Hugh Hughes, by M. Whitmoyer,--all of whom appear to reside in the city of Columbus and to be members of the Platte county bar.

We will now dispose of the motion of appellees Dietrichs and Boetcher. There is no pretense that this bill of exceptions was ever submitted to either of the appellees or either of their counsel for examination, before being signed and allowed by the judge. By the affidavit of one of the counsel for appellants, it appears that on February 18, 1891, all the appellees “interested in the defense on appeal” were notified, through their counsel, “that this bill was, or would be, left at the office of Sullivan & Reeder for their inspection and examination, and that it would remain there for the time allowed by statute.” It does not appear, however, that any of them consented to this. This was not such a submission of the exceptions as is required by the Code, § 311. The motion of the appellees Dietrichs and Boetcher to quash the bill of exceptions is therefore, as to them, sustained.

The grounds on which appellants ask to have this case docketed as an appeal are:

First. “For the reason set forth in the affidavit of C. J. Garlow, hereto attached.” I quote the substance of all the affidavits filed for and against this motion, omitting the formal parts:

Affidavit of Mr. Garlow: “C. J. Garlow, being first duly sworn, deposes and says that he is one of the attorneys for the Adamant Wall & Plaster Co., one of the defendants in the above-entitled cause; that on or about the 18th day of February, 1891, he presented the draft of the bill of exceptions in said cause to M. Whitmoyer, one of the attorneys for Hugh Hughes and Columbus State Bank, defendants, also in said cause, and requested the said Whitmoyer to receipt for the same, but he refused to do so, and assigned for his reason that he had been advised by his associate counsel not to do so; that said Whitmoyer retained said bill for about one day, and said that he had examined, or partially examined, the same, and said that there were errors in it which should be corrected; that on the 18th day of February, 1891, the said bill was presented to John J. Sullivan, one of the attorneys for C. A. Mast; that all of the defendants interested in the defense on appeal, or proposed appeal, were notified through their attorneys that the bill was, or would be, left at the office of...