Jones v. City of Chadron, 33200

• Decision Date: 31 October 1952
• Docket Number: No. 33200,33200
• Citation: 55 N.W.2d 495,156 Neb. 150
• Parties: JONES et al. v. CITY OF CHADRON.
• Court: Nebraska Supreme Court

Page 495

55 N.W.2d 495

156 Neb. 150

JONES et al. v. CITY OF CHADRON.

No. 33200.

Supreme Court of Nebraska.

Oct. 31, 1952.

Syllabus by Court.

1. If the time for procuring a bill of exceptions in a civil case is not extended beyond the 40 days allowed by statute therefor, the bill of exceptions must be allowed and settled not later than 70 days from the date of the filing of the notice of appeal in the district court.

2. In the absence of a bill of exceptions, it is presumed that an issue of fact presented by the pleadings was established by the evidence, that it was correctly decided, and the only issue that will be considered on appeal is the sufficiency of the pleadings to support the judgment.

3. If lands within a city or village adjacent to the corporate limits thereof are so situated that they do not have substantial unity or community of interest with the other portions of the corporate area in the maintenance of municipal government, justice and equity dictate that such lands should be severed from the municipality.

4. The word adjacent as used in section 17-414, R.S.Supp., 1951, means contiguous or coexistent with.

5. It is indispensable that the petition in a proceeding based on this statute contain a statement of fact showing that the territory sought to be detached is within the municipality and that a substantial part of the boundary thereof is adjacent to a part of the boundary of the city of village.

6. Justice and equity within the intention of this statute do not contemplate the severance of real estate from a municipality when to do so would result in an island of rural land surrounded by urban land.

7. Detachment of land from the corporate limits of a city may be denied where to detach would enhance the difficulties of city administration and would lessen the availability of contiguous areas for urban use.

Albert W. Crites, Chadron, for appellant.

Charles A. Fisher, Chadron, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellees instituted this proceeding to secure a detachment of unplatted land owned by them within the corporate area of Chadron. The trial court detached a part of the land involved herein. The motion of appellant for a new trial was denied and it has brought the case here by appeal. Appellees have not cross-appealed.

A motion to quash the transcript of the evidence purporting to be a bill of exceptions filed herein was by stipulation of the parties and with the permission of the court submitted at the time of the argument of the case.

The notice of appeal was filed in the district court on February 20, 1952. The proposed bill of exceptions was delivered to appellant on February 25, 1952. It was served on the attorney for appellees and by him returned to the appellant on March 10, 1952, without suggestion or request of amendment or change. The proposed bill of exceptions was presented to the trial judge for allowance and settlement on May 22, 1952. There was no order of the judge who tried the case extending the time within which a bill of exceptions might be procured. A bill of exceptions in a civil case must be allowed and settled not later than 70 days from the time of the filing of the notice of appeal in the district court, if the time for procuring the bill of exceptions has not been extended beyond the original 40 days allowed by statute therefor. Sections 25-1140, 25-1140.02 to 25-1140.05, R.R.S.1943; Cozad v. McKeone, 149 Neb. 833, 32 N.W.2d 760; In re Estate of Bingaman, 154 Neb. 240, 47 N.W.2d 435. The proposed bill of exceptions in this case was presented to the judge who tried the case for allowance and settlement 92 days after the filing of the notice of appeal in the district court. The attempted settlement and allowance thereof was therefore a nullity and the motion to quash it must be and is sustained.

The fact that appellant omitted to preserve the evidence produced at the trial of the case by a bill of exceptions, settled and allowed as the law requires, materially affects and limits the scope of review on appeal. If a purported bill of exceptions has not been prepared and authenticated as the procedure prescribes, its contents will not be noticed by this court for any purpose and no question, a determination of which involves an examination of the evidence offered at the trial, will be considered. In such a situation it is presumed that any issue of fact raised by the pleadings was established by the evidence and that the issue was correctly decided in the trial court. The only issue that can be determined on this appeal, since no legal transcript of the evidence has been furnished, is the sufficiency of the pleadings to support the judgment. Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312.

The substance of the petition is as follows: that appellees are the owners of the unplatted real estate involved herein; that it is located within the corporate limits...