Martin v. Fillmore County

• Decision Date: 05 April 1895
• Docket Number: 6195
• Citation: 62 N.W. 863,44 Neb. 719
• Parties: JAMES F. MARTIN v. FILLMORE COUNTY
• Court: Nebraska Supreme Court

62 N.W. 863

44 Neb. 719

JAMES F. MARTIN v. FILLMORE COUNTY

No. 6195

Supreme Court of Nebraska

April 5, 1895

ERROR from the district court of Fillmore county. Tried below before HASTINGS, J.

REVERSED AND REMANDED.

J. D Hamilton and John D. Carson, for plaintiff in error.

Charles H. Sloan, contra.

OPINION

IRVINE, C.

The plaintiff in error was plaintiff in the district court and alleged in his petition, in brief, that he was the owner of certain land in Fillmore county; that a petition in due form had been filed with the board of supervisors praying that a county ditch be constructed, in its course crossing the plaintiff's land; that no sufficient notice was given of the filing and pendency of such petition, but without such notice the prayer of the petitioners was granted; that the plaintiff had no notice of such proceedings; that the ditch was constructed across his land; that he filed a claim of damages before the board of supervisors, which was allowed to the extent of $ 50; that this proceeding was an appeal from the order making such allowance; that his land was damaged to the amount of $ 1,000, for which sum he prayed judgment. The petition had attached thereto as exhibits certified copies of the proceedings of the supervisors concerning said ditch. The county answered denying all allegations not specifically admitted, then alleging affirmatively that the ditch ran through the plaintiff's land, and while it caused some damage the benefits therefrom to said land exceeded the damage, and that the plaintiff was therefore entitled to recover nothing. The answer further alleged that due notice had been given, and that the plaintiff neglected to file his claim within the time provided by law. There was a trial to a jury and a verdict for the defendant, on which judgment was entered, and the plaintiff prosecutes error.

It is urged that the verdict is not sustained by sufficient evidence, and one other assignment relates to a matter occurring on the trial. There is attached to the transcript what purports to be a bill of exceptions, but there nowhere appears any certificate of the clerk authenticating this document as the original, or as a copy of the bill. Such a certificate is necessary for the authentication of the record. (Code Civil Procedure, sec 587b; Moore v. Waterman, 40 Neb. 498, 58 N.W. 940.) Furthermore, what purports to be a bill of exceptions purports also to be settled by the clerk of the court under a stipulation precisely similar to that set out in the opinion in Scott v. Spencer, 42 Neb. 632, 60 N.W. 892. It was in that case held that the mere stipulation of counsel that the clerk of the court may sign and allow a bill of exceptions is not sufficient to confer authority on him to do so. To confer such authority it must appear either that the judge is dead; that he is prevented either by sickness or absence from his district from signing and allowing the bill; or the parties or their counsel must agree upon the bill and attach thereto their written stipulation to that effect. A stipulation that the clerk may settle the bill without a stipulation that the bill submitted is agreed to is insufficient to confer authority upon the clerk in the premises. We cannot, therefore, examine either of the assignments of error referred to.

Error is assigned upon the giving of instructions 8, 9, 10, 11, and 12. The language of the assignment is the same as in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W. 700. The twelfth instruction states the familiar rule that in such cases general benefits may not be set off against damages sustained. This instruction was undoubtedly correct. (Schaller v. City of Omaha, 23 Neb. 325, 36 N.W. 533.) This instruction being correct the whole assignment must be overruled.

Another assignment is to the giving of instruction No. 2 asked by the defendant. The record contains an instruction numbered 2, but it does not appear whether it was given by the court of its own motion or at the request of one of the parties. The record also shows that...