Nelson & Cook v. Johnson

• Decision Date: 19 February 1895
• Docket Number: 6016
• Citation: 62 N.W. 244,44 Neb. 7
• Parties: NELSON & COOK v. JOHN F. JOHNSON
• Court: Nebraska Supreme Court

62 N.W. 244

44 Neb. 7

NELSON & COOK v. JOHN F. JOHNSON

No. 6016

Supreme Court of Nebraska

February 19, 1895

ERROR from the district court of Burt county. Tried below before IRVINE, J.

AFFIRMED.

H. H Bowes, for plaintiffs in error.

N. J Sheckell, contra.

HARRISON J. IRVINE, C., not sitting.

OPINION

HARRISON, J.

This action was commenced by plaintiffs against defendant, in the district court of Burt county, to recover the sum of $ and interest thereon, alleged in the petition to be the balance due them on an account. The answer pleaded payment. There was a trial and verdict and, after motion for new trial overruled, a judgment for defendant, to reverse which this error proceeding was instituted in this court.

A number of the errors complained of in the petition refer to the overruling or sustaining of objections to questions during the introduction of the testimony. These we cannot examine, for the reason that there is no properly authenticated bill of exceptions in the record. There appears the following stipulation: "It is hereby agreed that F. E. Ward, clerk of the district court, may settle the bill of exceptions herein and allow the same." According to this agreement the clerk of the district court signed the following statement in the record: "In pursuance of the agreement of the attorneys aforesaid the petition in error and bill of exceptions hereto attached are hereby allowed as the true and correct record upon which this cause was tried." This was not sufficient. In Scott v. Spencer, 42 Neb. 632, 60 N.W. 892, in an opinion written by RAGAN, C., in which an exactly similar question was passed upon, it was said: "Section 311 of the Code of Civil Procedure provides: 'In case of the death of the judge, or when it is shown by affidavit that the judge is prevented by sickness, or absence from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions and shall have attached a written stipulation to that effect to the bill, it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do.' To confer authority upon the clerk of a district court to sign and allow a bill of exceptions, then, it must appear that the judge of the district court is dead, or that he is prevented by sickness or absence from his district from signing and allowing the bill, or the parties to the litigation or their counsel must agree upon the bill of exceptions, and attach thereto their written stipulation to that effect. Counsel for the parties to this litigation did agree and stipulate that the clerk might sign the bill of exceptions, but they did not agree by stipulation in writing attached to the bill that it was the correct bill of exceptions in the case. Where it is sought to present to this court alleged errors occurring at a trial in the district court, a bill of exceptions, settled and signed by law, is indispensably necessary;" citing Reynolds v. Dietz, 39 Neb. 180, 58 N.W. 89; Edwards v. Kearney, 14 Neb. 83, 15 N.W. 329. (See, also, Glass v. Zutavern, 43 Neb. 334, 61 N.W. 579.)

One ground assigned as a reason for reversing the judgment is the overruling of plaintiffs' motion for a continuance. The granting or refusal of a motion for a continuance is a matter which is discretionary with the trial court, and,...