Merrill v. Equitable Farm & Stock Imp. Co.

• Decision Date: 16 September 1896
• Citation: 68 N.W. 365,49 Neb. 198
• Court: Nebraska Supreme Court
• Parties: MERRILL ET AL. v. EQUITABLE FARM & STOCK IMP. CO., LIMITED.

49 Neb. 198

68 N.W. 365

MERRILL ET AL.

v.EQUITABLE FARM & STOCK IMP. CO., LIMITED.

Supreme Court of Nebraska.

Sept. 16, 1896.

Syllabus by the Court.

1. To authenticate a document attached to a transcript as the bill of exceptions settled in the case, a certificate of the clerk, under the seal of the district court, identifying the document as the original, or a copy of the bill of exceptions, is essential.

2. The propriety of an instruction cannot be reviewed unless the record discloses that the giving of the instruction was excepted to by the complaining party.

3. When the sufficiency of a petition is not attacked until after judgment, all reasonable intendments should be indulged in support of the judgment.

Error to district court, Box Butte county; Bartow, Judge.

Replevin by the Equitable Farm & Stock Improvement Company, Limited, against John B. Merrill and others. From a judgment for plaintiff, defendants bring error. Affirmed.

R. C. Noleman, for plaintiffs in error.

Simonson & Sullivan and Grimes & Wilcox, for defendant in error.

IRVINE, C.

This was an action of replevin by the Equitable Farm & Stock Improvement Company, Limited, against John Merrill and Gilbert & Grow, to recover certain cattle. From a judgment for the plaintiff, the defendants prosecute these proceedings.

All the assignments of error, except one, relate to rulings on the evidence. For the most part, the brief of the plaintiffs in error merely recites the assignments of error without discussion, and without stating in what respect the rulings are deemed erroneous. These assignments cannot, in any event, be considered, however, because what purports to be the bill of exceptions is not accompanied by any certificate of the clerk of the court authenticating it as either the original bill, or a copy thereof.

One error assigned is that the court erred in sustaining plaintiff's motion to instruct the jury to bring in a verdict for the plaintiff. This we cannot review, because it does not appear that any exception was taken to the action of the court on the trial of the case.

It is suggested in the brief that the petition does not state a cause of action. The amended petition on which the case was tried, after alleging the corporate capacity of the plaintiff, proceeds: “Plaintiff has a special ownership in, and is entitled to the immediate possession of, the following described goods and chattels, and was entitled to the possession of the same at the time this action...