Graves v. Scoville
| Decision Date | 07 July 1885 |
| Citation | 24 N.W. 222,17 Neb. 593 |
| Parties | RILEY M. GRAVES, PLAINTIFF IN ERROR, v. H. T. SCOVILLE, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Jefferson county. Tried below before MORRIS, J.
Reversed and remanded with direction.
S. N Lindley and Ryan Bros., for plaintiff in error.
Marquett Deweese & Hall, for defendant in error.
Before the final submission of this cause defendant in error filed two motions, one to strike from the record the affidavit of Riley M. Graves attached to the bill of exceptions, for the reason that it was not preserved as a part of the record by the proper bill of exceptions, there being no proof that it was considered by the district court in determining the motion to which it is attached. The other to "dismiss the appeal," for the reason that no motion for a new trial or to set aside the judgment was made in the court below.
These motions will be disposed of in the order of their filing, as above indicated. The cause was originally submitted to the arbitration of George W. Hanson, under the provisions of section 862 et seq. of the civil code. The submission was in writing, and provided that judgment should be entered upon the award by the district court of Jefferson county. The arbitrator returned his award to the district court. The plaintiff in error then filed a motion to set aside the award, alleging various reasons therefor, and so far as appears, in support of the motion attached thereto his affidavit, which in the motion is referred to as "marked exhibit 'A,'" and made a part of the motion. There is no bill of exceptions. The question presented by the motion is, whether or not, in the absence of a bill of exceptions, what purports to be a copy of the affidavit attached to the files is properly a part of the record.
Upon this question the decisions of this court have been substantially uniform, and it has, with one exception, we think, been held that affidavits used on a hearing in the district court must be embodied in a bill of exceptions in order to be available in the supreme court. In Tessier v Crowley, 16 Neb. 369 at page 372, Chief Justice COBB, in writing the opinion of the court, says: "It has been held by this court in at least seven cases, substantially, that where evidence has been introduced in the court below which is not properly a matter of record, a party who desires to avail himself of such evidence in the supreme court must preserve the same by a bill of exceptions," citing the cases referred to, and to which might be added Dorrington v. Minnick, 15 Neb. 397, 19 N.W. 456. Dolen v. The State, 15 Neb. 405. Empkie v. McLean, 15 Neb. 629. Thesing v. School District, 16 Neb. 134. Frederick v. Ballard, 16 Neb. 559, and others. In the same opinion, Tessier v. Crowley, the chief justice further says: "I do not think that anything can be said to belong to the record except the process, pleadings, and journal entries, including, of course, motions, the rulings thereon, references, reports of referees, instructions, verdict, and judgment; any matter of evidence, including affidavits, can only go upon the record by order of the court, and that is the office of a bill of exceptions." It is claimed that the affidavit of Graves does not fall within this rule because it was attached to the motion as an exhibit and made a part of it, and therefore under the rule laid down in The Republican Valley R. R. Co. v. Boyse, 14 Neb. 130, 15 N.W. 364, no bill of exceptions is necessary to its preservation in the record. The holding in R. R. Co. v. Boyse is directly overruled in Tessier v. Crowley, supra, and it seems to us correctly. It does not seem to the writer to be consistent with reason to say that the necessity of a bill of exceptions can be obviated by simply saying in the motion or paper to be supported by affidavits that they are attached and made a part of the motion. The purpose of a bill of exceptions is to identify the paper or instrument and designate it as the paper or instrument used on the hearing. If the rule can be obviated by making one affidavit a part of the motion, it can be with any number. A large number of affidavits are frequently filed with a motion and designated therein as a part of it. If one or two affidavits thus filed and designated are made a part of the motion and of the record, one or two hundred can as easily be incorporated, and thus a bill of exceptions will only be necessary because the party filing counter affidavits had nothing of which he could "make them a part." But do such affidavits become a part of a motion by simply calling them such? By section 572 of the civil code a motion is defined to be "an application for an order addressed to the court or a judge in vacation by any party to a suit or proceeding, or one interested therein." It is an application for an order. The affidavits used in support of this application are simply intended to furnish proof of the existence of the facts set up or pleaded in the motion. If those facts already...
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