Greenwood v. Cobbey

• Decision Date: 24 October 1888
• Citation: 39 N.W. 833,24 Neb. 648
• Parties: GREENWOOD v. COBBEY.
• Court: Nebraska Supreme Court

24 Neb. 648

39 N.W. 833

GREENWOOD

v.COBBEY.

Supreme Court of Nebraska.

October 24, 1888.

Syllabus by the Court.

Where a judge of the district court, before whom a cause was tried, extends the time from 40 to 80 days from the adjournment of the court in which a party may prepare and serve a bill of exceptions, it is unnecessary to preserve the evidence on which such extension was granted, nor ordinarily is the order subject to review.

Where a judge decides upon the evidence before him that the party seeking a bill of exceptions has made a “due showing of diligence” in the preparation of the bill, and therefore extends the time in which to prepare the same, the supreme court will not review the evidence on which such extension was granted, for the purpose of determining whether the showing was sufficient.

The provisions of the Code relating to bills of exceptions are to be liberally construed.

Error to district court, Gage county; J. H. BROADY, Judge.

On motion to quash bill of exceptions.A. D. McCandless, J. E. Bush, and T. D. Cobbey, for the motion.

C. O. Whedon and L. W. Colby, contra.

MAXWELL, J.

On the 10th day of March, 1888, the defendant recovered a verdict against the plaintiff in the district court of Gage county. A motion for a new trial was thereupon filed and overruled, and judgment entered on the verdict, and 40 days given the plaintiff to reduce his exceptions to writing, and serve the same on the adverse party. Court adjourned sine die on the 5th day of April, 1888. The plaintiff did not reduce his exceptions to writing within 40 days from April 5th, but on May 16th applied to the judge of the district court for an order extending the time. The judge thereupon made the following order:

“ State of Nebraska, Gage County. It appearing to me that the defendant, Greenwood, has used due diligence to obtain the bill of exceptions and allowance thereof in this cause, and has failed to secure the settlement and allowance of the same in the time allowed by court, the time heretofore allowed is hereby extended by me forty days additional. The bill of exceptions to be presented to plaintiff, Cobbey, within twenty days from date of this order; and said Cobbey to have ten days to prepare objections or amendments thereto, and return same to defendant, and same to be presented to the judge for allowance within ten days thereafter.

J. H. BROADY, Judge.

Dated May 16, 1888.”

Within the time fixed in this order, the plaintiff presented a bill of exceptions to the defendant, who wrote out his reasons at length for refusing to approve the bill; the substance of his objections being that the bill was not presented to him within 40 days from the rising of the court. On the 8th day of June, 1888, the plaintiff served notice on the defendant that on the 13th day of that month, at the court-house in said county, at 9 o'clock A. M. of said day, he would submit the bill to Judge BROADY for settlement and allowance. At the time stated, the defendant appeared before Judge BROADY, and objected to the allowance of the bill because the plaintiff had not used due diligence in procuring the same, and Judge BROADY had no authority to extend the time for two reasons: (1) He could not extend the time after the expiration of 40 days; and, (2) to justify such extension, he must have sufficient evidence of due diligence on the part of the plaintiff. In support of the second proposition, the defendant introduced a large amount of testimony, which was preserved in a bill of exceptions, and is now before us. Judge BROADY overruled the objections, and signed the bill, and ordered it to be made a part of the record of the case. The defendant now moves to quash the bill on the grounds that the judge had no authority to extend the time after the expiration of 40 days; and (2) because there was not sufficient evidence before the judge to justify him in extending the time.

Section 311 of the Code, after prescribing the procedure in settling a bill of exceptions, provides “that, in cases where a party seeking to obtain the allowance of a bill of exceptions has used due diligence in that behalf, but has failed to secure the settlement and allowance of the same as herein required, it shall be competent for the judge who tried the...