Herbison v. Taylor

• Decision Date: 26 March 1890
• Citation: 45 N.W. 626,29 Neb. 217
• Parties: HERBISON v. TAYLOR.
• Court: Nebraska Supreme Court

29 Neb. 217

45 N.W. 626

HERBISON

v.TAYLOR.

Supreme Court of Nebraska.

March 26, 1890.

Syllabus by the Court.

1. In a record without pleadings, in which it appeared from a journal entry of the judgment that the plaintiff's cause of action arose from defendant's live-stock trespassing upon cultivated ground, and that defendant answered an award of arbitrators, under the herd law, as a bar to the action, held, that a bill of exceptions exhibiting the evidence on which the judgment was rendered was required to review it.

2. Where a stipulation of facts, between the parties to a trial in the district court, is presented, without a bill of exceptions, this court will not accept it as the whole of the evidence upon which the findings and judgment of the court below were predicated, unless it is brought upon a proper bill of exceptions.

Error to district court, Franklin county.E. W. Metcalfe and H. Whitmore, for plaintiff in error.

COBB, C. J.

In the court below the plaintiff alleged that two steers, the property of the defendant, while at large, entered upon her land, and did damage to the amount of $14. The answer of defendant sets up an arbitration and award in bar of the action. There was a trial to the court, without a jury, on the following stipulation of facts: (1) On April 17, 1887, the plaintiff impounded two calves of the defendant while trespassing on plaintiff's cultivated land. (2) Notice of the taking up of the calves was served on defendant by plaintiff on April 18, 1887, as required by the herd law. The plaintiff selected John Elly as her arbitrator, and the defendant selected O. B. Furbush as his arbitrator. (3) On April 19th following, Furbush examined the damages, as shown by the plaintiff, and on the next day Elly examined the damages, as shown by plaintiff, done by the calves to plaintiff's property, for which they were then impounded. On the 22d following the arbitrators met one-half mile from where the damage was done, and agreed upon their award. Neither party was present, nor knew of the meeting of the arbitrators, nor waived their being sworn, nor had either party objected to an assessment without their being sworn. No award was then made in writing, but the arbitrators there agreed that whichever should first see the parties should notify them of the award, which was one dollar. On the 25th following the arbitrators reduced their award to writing, signed and delivered it to the plaintiff, who then said that if the...