Moore v. Waterman

• Decision Date: 02 May 1894
• Citation: 40 Neb. 498,58 N.W. 940
• Parties: MOORE v. WATERMAN ET AL.
• Court: Nebraska Supreme Court

40 Neb. 498

58 N.W. 940

MOORE

v.WATERMAN ET AL.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. In order to effect an appeal to this court from a judgment of the district court, it is necessary to file with the clerk of this court, within six months from the rendition of the judgment, a transcript of the proceedings, authenticated by the certificate of the clerk of the district court. Such requirement is jurisdictional, and cannot be waived by the parties, and the filing of the original pleadings in the district court does not take the place of such certified transcript.

2. Where a transcript of the judgment is the only paper filed here authenticated by the certificate of the clerk of the district court, and such judgment was one within the jurisdiction of the district court to render, the judgment will be affirmed.

Appeal from district court, Dixon county; W. F. Norris, Judge.

Action by Mary P. Moore against Obed Waterman and Thomas Crew. Judgment for defendants, and plaintiff appeals. Affirmed.Barnes & Tyler, for appellant.

Davis, Gantt & Briggs, for appellees.

IRVINE, C.

This case is not presented to us in a condition permitting us to examine it upon its merits. The record filed in this court consists of: (1) Certain documents having the appearance of the original pleadings in the case in the district court. (2) What appears to be a stipulation in the district court submitting the case on certain admissions of fact and certain written evidence. (3) A mass of documents which appear to be original depositions in the district court. (4) A paper duly certified by the clerk under the seal of the court to be a true and correct transcript of the judgment. (5) A stipulation by counsel “that the above and foregoing pleadings and record and evidence upon which this case was tried are all of the pleadings, record, and evidence on which the said trial was had;” that the judge “sign, settle, and allow the same as the record, pleadings, and bill of exceptions herewith, and the same, being the original pleadings and record and original evidence, may be used in the trial hereof on appeal in the supreme court without certificate of the clerk of the district court.” (6) A certificate purporting to be signed by the judge, but without any clerk's certificate, as follows: “I do hereby allow and settle the above and foregoing as the record and bill of exceptions herein, the same being the original record, pleadings, and all of the evidence used and introduced in the trial of this case.”

Section 675 of the Code of Civil Procedure provides the manner of taking an appeal to this court from a judgment of the district court. In order to effect such an appeal, “the party appealing shall within six months after the date of the rendition of the judgment or decree, or the making of the final order, procure of the clerk of the district court and file in the office of the clerk of the supreme court, a certified transcript of the proceedings had in the cause in the district court, containing the pleadings, the judgment or decree rendered or final order made therein, * * * and on failure thereof the judgment or decree rendered or final order made...