Nelson v. Johnson

• Decision Date: 19 February 1895
• Citation: 44 Neb. 7,62 N.W. 244
• Parties: NELSON ET AL. v. JOHNSON.
• Court: Nebraska Supreme Court

44 Neb. 7

62 N.W. 244

NELSON ET AL.

v.JOHNSON.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. Where it is sought to present for review alleged errors of a trial court in receiving or rejecting testimony, and also the applicability of an instruction to portions of the evidence, it is necessary that there be a properly authenticated bill of exceptions.

2. A clerk of the district court has no power to settle and allow a bill of exceptions, unless it is within the exceptions noted and provided for in section 311 Code Civ. Proc.

3. Affidavits used on the hearing of a motion for a continuance cannot be considered in the appellate court unless preserved by a bill of exceptions.

4. An instruction which was a correct statement of a rule of law applicable to a certain class of testimony, the absence of a properly authenticated bill of exceptions precluding its examination in connection with the evidence, presumed to be without error.

Error to district court, Burt county; Irvine, Judge.

Action by Nelson & Cook against John F. Johnson. Judgment for defendant, and plaintiffs bring error.H. H. Bowes, for plaintiffs in error.

N. J. Sheckell, for defendant in error.

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 these error proceedings were 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 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 (Neb.) 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 that, 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...