Hake v. Woolner

• Decision Date: 23 June 1898
• Parties: HAKE ET AL. v. WOOLNER.
• Court: Nebraska Supreme Court

55 Neb. 471

75 N.W. 1087

HAKE ET AL.

v.WOOLNER.

Supreme Court of Nebraska.

June 23, 1898.

Syllabus by the Court.

1. Rulings of the court below during the trial, instructions given and refused, and the sufficiency of the evidence to sustain the verdict, to be available in this court, must have been raised by the motion for a new trial.

2. A paper included in the transcript, purporting to be a motion for a new trial, will be disregarded, unless authenticated by the certificate of the clerk of the district court.

Error to district court, Otoe county; Chapman, Judge.

Action by Samuel Woolner against James A. Hake and others. Judgment for plaintiff, and defendants bring error. Affirmed.Hall, McCulloch & Clarkson and E. F. Warren, for plaintiffs in error.

John C. Watson, for defendant in error.

NORVAL, J.

A reversal of the judgment is asked on account of certain rulings of the court below during the progress of the trial, alleged errors in the instructions, and that the evidence is insufficient to support the verdict. All of these matters, to be available here, must have been raised by the motion for a new trial. Miller v. Antelope Co., 35 Neb. 237, 52 N. W. 1116;Viergutz v. Aultman, Miller & Co., 46 Neb. 141, 64 N. W. 693;Dillon v. State, 39 Neb. 92, 57 N. W. 986;Losure v. Miller, 45 Neb. 465, 63 N. W. 863;Barr v. City of Omaha, 42 Neb. 341, 60 N. W. 591;Barton v. McKay, 36 Neb. 632, 54 N. W. 968. The transcript contains a paper designated as a “motion for a new trial,” but the same is not authenticated by the clerk of the district court, whose certificate is as follows: “I, M. S. Campbell, clerk of the district court within and for Otoe county, hereby certify the foregoing to be a true transcript of the record in the within-entitled cause: Petition, amended petition, stipulation, answer, amended reply, instructions asked by plaintiff refused, instructions asked by the defendant refused, instructions of the court, journal entries, and bond, as the same appearon file and of record in my office. Witness my hand and the seal of said court this thirty-first day of May, eighteen hundred and ninety-five. M. S. Campbell, Clerk, by Minnie Gilman, Deputy.” This is a proper authentication merely of the matters specifically enumerated in the certificate, of which the motion for a new trial is not one. The authentication would have been complete and sufficient had it ended with the language, “hereby certify the foregoing to be a true transcript of...