Flynn v. Jordan

• Decision Date: 13 May 1885
• Citation: 23 N.W. 519,17 Neb. 518
• Parties: JOHN FLYNN ET AL., PLAINTIFFS IN ERROR, v. WILLIAM E. JORDAN ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

23 N.W. 519

17 Neb. 518

JOHN FLYNN ET AL., PLAINTIFFS IN ERROR, v. WILLIAM E. JORDAN ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 13, 1885

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

AFFIRMED.

Leese Brothers, for plaintiffs in error.

R. S Norval, for defendants in error.

OPINION

COBB, CH. J.

This was an action of replevin brought by the defendants in error against the plaintiffs in error and one Daniel Doody for the possession of one brown mare of the value of eighty dollars. There was a trial to a jury, which found by their verdict "that at the commencement of this action the plaintiffs were the owners of the property described in the petition and that the defendant, John Flynn, unlawfully detained the same; that the defendant, Doody, was not in the possession of the property when this action was commenced, and we do assess to the plaintiffs against the defendant, Flynn, damages at one cent."

Judgment having been rendered on the said verdict and a motion for a new trial overruled, the cause was brought to this court by the defendant, John Flynn.

In this court a motion was made by the defendants to quash the bill of exceptions, and the cause was submitted on said motion and generally.

The following are the grounds upon which the motion is founded:

"1. Because the said bill of exceptions was never filed in the district court of Seward county, nor was the same ever made a part of the record in said cause.

"2. Because the said bill of exceptions is not authenticated by the certificate and seal of the clerk of the district court of said county; that no certificate of the clerk of said district court is attached to said bill of exceptions or the transcript in said case, showing that it is the original bill of exceptions, or that it is a copy of the original bill of exceptions.

"3. Because said bill of exceptions was never filed or offered to be filed with the clerk of the district court as the bill of exceptions in said cause.

"4. Because said bill of exceptions was not reduced to writing and presented to the defendants in error and allowed by the judge within the time allowed by law."

From a thorough inspection of the record as well as from the affidavit of George A. Merriam, clerk of the district court of Seward county, it fully appears that that part of the record in this case which purports to be a bill of exceptions was attached to the transcript of the record proper after the same left the office of the clerk of said district court, and never was either officially or in point of fact within the hands or custody of said clerk or within his office.

The statute, section 587a of the civil code, provides for the attaching of the original bill of exceptions to the transcript of proceedings, etc. But the succeeding section, 587b, provides "that when the original bill or bills of exception, or testimony in equity cases, is so as aforesaid made a part of a transcript or record for the supreme court, the clerk shall state such fact in his certificate thereto and omit to certify that the same have been copied into such record or transcript." The certificate of the clerk attached to the papers in the case at bar is no attempt at a compliance with the provisions of the above section, and while as a matter of fact the writer knows that the said paper purporting to be a bill of exceptions was signed by the judge of the district of which Seward county is a part, yet he owes such knowledge solely to the fact of his happening to be acquainted with that gentleman's handwriting.

The law-making power has gone to the very frontier of liberality--not to say of looseness--in allowing the use of the original bills of exceptions in the supreme court, when properly certified up for that purpose, and I do not think that it would be safe for the court to dispense with their proper authentication. The motion to quash must therefore be sustained.

The points made in the petition in error must therefore be examined by reference to the record, without the aid of the bill of exceptions. Those are as follows:

1. The court erred in giving to the jury instruction No. 6.

2. The court erred in overruling the motion for a new trial.

3. The judgment was given for the plaintiffs below, when it should...