McDonald v. McAllister
| Decision Date | 01 July 1891 |
| Citation | 49 N.W. 377,32 Neb. 514 |
| Parties | JAMES MCDONALD v. S. S. MCALLISTER |
| Court | Nebraska Supreme Court |
ERROR to the district court for Platte county. Tried below before POST, J.
AFFIRMED.
I. L Albert, and Sullivan & Reeder, for plaintiff in error.
McAllister & Cornelius, contra.
Cases cited by counsel are referred to in opinion.
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 forty 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 21, the court ordered that the time for the settlement and allowance of the bill of exceptions be extended for the period of forty days in addition to the time previously allowed for that purpose.
Where the district court has given a party forty 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 forty 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. 648, 39 N.W. 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 terms of court at which the verdict was returned finally adjourned on May 10; the eighty days granted in which to prepare and present the bill did not expire until July 29. The record shows that the draft of the bill of exceptions was submitted to the attorneys for the defendant in error on July 29. 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 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:
The stipulation was filed in the district court February 17, 1890, and the petition and answer were filed March 14, the day of trial. So far as the record before us discloses no showing was made in the court below either for a postponement of the hearing or for a continuance over the term. The cause was properly upon the docket and stood for hearing on issues of fact. If counsel for defendant were not ready to proceed to trial, on account of the absence of their client, they should have made a showing to the court, by affidavit, setting up the facts relied upon to excuse his absence, or a showing why such affidavit could not be produced. An application for the postponement of a trial to a later day of 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, unless there has been an abuse of such discretion. The presumption is that the decision was right, in the absence of a showing.
On March 14, the day the verdict was returned, the defendant filed a motion for a new trial, which on the same day was overruled....
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