McDonald v. McAllister

• Citation: 49 N.W. 377,32 Neb. 514
• Parties: MCDONALD v. MCALLISTER.
• Decision Date: 01 July 1891
• Court: Supreme Court of Nebraska

32 Neb. 514

49 N.W. 377

MCDONALD

v.MCALLISTER.

Supreme Court of Nebraska.

July 1, 1891.

Syllabus by the Court.

1. Where a district court has given a party 40 days from the adjournment of a term to reduce his exceptions to writing, the judge has authority to extend the time in which to prepare and serve a bill of exceptions for a period not exceeding 40 days additional, when it appears that the party seeking the bill has used due diligence. Such power exists, notwithstanding the period first allowed expired before the application for an extension of time was made.

2. Notice of such an application to the adverse party is not indispensable to jurisdiction.

3. An application for the postponement of a trial to a later day in the term, or for the continuance of a cause, is addressed to the sound legal discretion of the court; and the ruling thereon will not be disturbed, in the absence of a showing that there has been an abuse of discretion.

4. A motion for a new trial must be filed at the term of court the verdict is rendered, and, except for newly-discovered evidence, within three days after the return of the verdict, unless unavoidably prevented.

Error to district court, Platte county; POST, Judge.I. L. Albert and Sullivan & Reeder, for plaintiff in error.

McAllister & Cornelius and G. G. Bowman, for defendant in error.

NORVAL, J

This is an action brought by the defendant in error to recover for services rendered as an attorney at the instance and request of the plaintiff in error. Verdict and judgment for the plaintiff below for $280, to reverse which the cause was brought into this court by petition in error. The defendant in error moves to strike the bill of exceptions from the files, on the following grounds. (1) The bill was not presented to the defendant in error in time. (2) The trial judge had no authority to grant an extension of time in which to prepare and serve the bill of exceptions. (3) No notice that an application would be made to the judge to extend the time was given the defendant in error. The verdict was returned at the January term, 1890, of the district court of Platte county, which term adjourned sine die on the 10th day of May, 1890. The defendant below, after the expiration of the 40 days given him, when the judgment was rendered to reduce his exceptions to writing, applied to the judge for an order extending the time. At the May term, 1890, to-wit, June 21st, the court ordered that the time for the settlement and allowance of the bill of exceptions be extended for the period of 40 days, in addition to the time previously allowed for that purpose. Where the district court has given a party 40 days from the adjournment of court to reduce his exceptions to writing, the trial judge has power to extend the time for that purpose, for a period not exceeding 40 days additional, when it appears that the party seeking the bill has used due diligence in preparing the same. And such authority exists, notwithstanding the period previously allowed expired before the application for further time is made. This was expressly held in Greenwood v. Cobbey, 24 Neb. 649, 39 N. W. Rep. 833. There is no provision of statute requiring that notice of an application to the judge for additional time in which to prepare a bill of exceptions shall be given the adverse party; and to hold that a judge has no authority to act, unless such notice has been given, as is claimed by the defendant in error, is to inject words into the statute by judicial interpretation, which the court is powerless to do. The only notice required by section 311 of the Code, relating to bills of exceptions, is where amendments are proposed to the bill; in which case, the party seeking the bill must give five days' notice to the adverse party or his attorney of the time and place where he will present the same to the judge for settlement and allowance.

The first point made in the motion is not borne out by the facts. The term of court at which the verdict was returned, finally adjourned on May 10th. The 80 days granted in which to prepare and present the bill did not expire until July 29th. The record shows that the draft of the bill of exceptions was submitted to the attorneys for the defendant in error on July 29th. It was therefore presented in proper time. The motion to strike the bill of exceptions is overruled.

The court overruled the objection of the attorneys for the defendant to proceed to trial in the defendant's absence. This ruling is assigned for error. The action was originally commenced in the county court, and without trial it was transferred to the district court under the following stipulation: “In the county court of Platte county, Nebraska. Stephen S. McAllister, Plaintiff, against James McDonald, Defendant. It is hereby stipulated and agreed that this case shall be removed to and tried in the district court, in all respects as if begun in said district court, to be heard at the adjourned January term, 1890, to-wit, March, 1890, except continued for good cause shown to the court. S. S. MCALLISTER, SULLIVAN & REEDER, Attorneys for Defendant.” The stipulation was filed in the district court, February...