Horbach v. City of Omaha

• Decision Date: 02 December 1896
• Docket Number: 8712
• Citation: 69 N.W. 121,49 Neb. 851
• Parties: JOHN A. HORBACH, APPELLANT, v. CITY OF OMAHA ET AL. APPELLEES
• Court: Nebraska Supreme Court

69 N.W. 121

49 Neb. 851

JOHN A. HORBACH, APPELLANT, v. CITY OF OMAHA ET AL. APPELLEES

No. 8712

Supreme Court of Nebraska

December 2, 1896

APPEAL from the district court of Douglas county. Heard below before KEYSOR, J. Submitted to supreme court on motion by appellee Edward B. Baer to quash the bill of exceptions. Motion sustained.

Motion SUSTAINED.

Saunders & Macfarland and W. J. Connell, for the motion.

Charles A. Goss, contra.

OPINION

IRVINE, C. J.

This case is presented on the motion of appellee Baer to quash the bill of exceptions, the principal ground of the motion being that the proposed bill was not submitted to the appellee within the time provided by law. The record discloses that the decree appealed from was rendered at the February, 1896, term of the district court for Douglas county, which adjourned May 2. At the time the decree was rendered forty days from the rising of court was allowed in which to prepare and submit the bill. On June 10 a further order was made by the trial judge whereby an additional forty days was allowed. The bill was not submitted until July 25 which was several days after the expiration of the time limited. When submitted to Baer's counsel no amendments were proposed, but they objected to the allowance of the bill for the reason indicated. The judge, however, undertook to allow the bill on quite satisfactory evidence that the delay in submitting the same was due to no fault of the plaintiff or his attorney, but was occasioned solely by the failure of the official stenographer to sooner prepare a transcript of the evidence. The question is thus presented as to whether a proposed bill of exceptions may be submitted to the adverse party after the expiration of the extreme time permitted by statute and by the judge's order in pursuance thereof where the plaintiff shows himself to have been diligent.

This question calls for a consideration of section 311 of the Code of Civil Procedure, which, so far as it relates to the time of presenting the bill, now stands as follows: "When the decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing within fifteen days, or in such time as the court may direct, not exceeding forty days from the adjournment sine die of the term of court at which judgment is rendered or at which the motion for a new trial is ruled on, and submit the same to the adverse party or his attorney of record for examination and amendment if desired. * * * 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 cause, upon due showing of diligence and not otherwise, to extend the time herein allowed, but not beyond forty days additional to that herein provided, making such specific directions in that behalf as shall seem just to all parties."

In Richards v. State, 22 Neb. 145, 34 N.W. 346, a similar question arose and the following language was used: "This being the case, the plaintiff was not at fault. So far as appears, he has done all that he could to procure the bill within the time stated. In the absence of a showing to the contrary, all presumptions of diligence are in favor of the plaintiff in error. The law relating to the preparation of bills of exception should be liberally construed, as being in furtherance of justice. The motion must therefore be overruled." This decision is open to criticism on several grounds. The court makes no reference to the terms of the statute nor to any of the somewhat numerous decisions which had preceded the case under consideration. The case involved a number of important questions, and it is inferable from the detailed treatment of other questions in the opinion and the summary disposition of this one, that this was treated by both counsel and the court as of minor importance and did not receive as careful an examination as it would have received had the motion to quash been presented as a distinct matter. The decision is based on two propositions: First, that in the absence of a showing to the contrary, diligence in procuring the settlement of the bill would be presumed; and secondly, that if the plaintiff in error was diligent, delay was not fatal. The court in announcing these propositions evidently overlooked the fact that the statute, instead of presuming diligence on the part of the plaintiff, provides that the second forty days may be allowed "upon due showing of diligence and not otherwise;" and also overlooked the further provision that when such diligence is shown time may be extended, "but not beyond forty days additional." Further, it appears from the opinion that the objection made by the attorney general to the bill was that it was not signed within eighty days from the time the court adjourned. The eighty-day period refers to the submission of the bill to the adverse party. Under proper circumstances it need not be presented for signature by the judge until twenty days thereafter, and then the judge may retain the bill for examination and sign it still later. (Leighton v. Stuart, 8 Neb. 96; Parker v. Kuhn, 19 Neb. 394, 27 N.W. 399.) Therefore, the case did not properly present the question which the court undertook to pass upon. For the reasons stated we do not think that Richards v. State should be deemed as conclusively settling the question before us.

Prior to 1877 it was necessary to settle the bill of exceptions within the trial term. Under this practice terms were kept open for long and indefinite periods to permit the settlement of bills, and the legislature, therefore, in 1877 (Session Laws, p. 11), amended section 311 in such manner that it was made to contain the provision in the present section whereby the party excepting is required to submit the proposed bill within fifteen days or in such time as the court may direct not exceeding forty days from the rising of the court. The section then did not contain any provision for a further extension of time. Construing the act of 1877 the court sa...