Nissen's Estate, In re

• Decision Date: 28 October 1960
• Docket Number: No. 34799,34799
• Citation: 171 Neb. 105,105 N.W.2d 578
• Parties: In the Matter of the ESTATE of Emma NISSEN, Deceased. Melvina HILLIGAS, appellant-cross-appellee, v. Frank M. FARR, Administrator of the Estate of Emma Nissen, Deceased, appellee-cross-appellant.
• Court: Nebraska Supreme Court

Page 578

105 N.W.2d 578

171 Neb. 105

In the Matter of the ESTATE of Emma NISSEN, Deceased.

Melvina HILLIGAS, appellant-cross-appellee, v. Frank M. FARR, Administrator of the Estate of Emma Nissen, Deceased, appellee-cross-appellant.

No. 34799.

Supreme Court of Nebraska.

Oct. 28, 1960.

Syllabus by the Court

1. By the terms of Rule 7, paragraph e, of the Revised Rules of the Supreme Court, Part I, Practice in Supreme Court, a bill of exceptions may be amended by written agreement attached to the bill at any time before the case is submitted to the Supreme Court.

2. By the terms of the same rule proposed amendments not agreed to by all of the parties shall be heard and decided by the district court, after notice, and the order of the district court thereon shall be attached to the bill of exceptions prior to the time the case is submitted to the Supreme Court.

3. An amendment to a bill of exceptions will not be considered by the Supreme Court which has not been presented in compliance with Rule 7, paragraph e, of the Revised Rules of the Supreme Court, Part I, Practice in Supreme Court.

4. In a case coming to the Supreme Court on appeal, error will not be presumed but it must affirmatively appear from the record.

5. The rule that error will not be presumed but must appear from the record applies in the instance of an appeal from an order granting a new trial, or any other appealable order, where a ruling depends upon an examination of the evidence taken at the trial.

6. The exaction of the rule that on appeal error will not be presumed but it must appear from the record is that the entire record of the evidence must be presented.

7. In the absence of a proper bill of exceptions, all assignments of error which require for their determination a reference to such a bill must be overruled.

E. H. Powell, Aurora, for appellant.

Charles L. Whitney, Aurora, John E. Dougherty, York, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

The estate of Emma Nissen, deceased, was probated in the county court of Hamilton County, Nebraska. A claim was filed against the estate by 'Mr. and Mrs. Ralph Hilligas' for $1,791.50, 'for services rendered by each (of) us for decedent, and other miscelaneous (sic) items, over the years, as per attached itemization marked 'Exhibit A." A trial was had in the county court which resulted in an adjudicated allowance in the amount of $145 only. Mrs. Hilligas, using her true name of Melvina Hilligas, appealed from the adjudication to the district court. Ralph Hilligas did not join in the appeal. On appeal Melvina Hilligas filed a petition in which she claimed a right of recovery in the amount of $1,407.50. Issues were joined in the district court between Melvina Hilligas and Frank M. Farr, administrator of the estate. A trial was had to a jury which resulted in a verdict and judgment in favor of Melvina Hilligas and against the administrator for $1,407.50. A motion for new trial, or in the alternative for judgment notwithstanding the verdict, was duly filed. Judgment notwithstanding the verdict was denied but a new trial was ordered. Melvina Hilligas has appealed from the order sustaining the motion for new trial.

On the appeal here Melvina Hilligas is designated plaintiff and appellant. She will be referred to hereinafter as plaintiff. The administrator is designated defendant and appellee. He will be referred to as defendant.

As grounds for reversal the plaintiff sets forth two assignments of error. The first is: 'The trial court erred in granting a defense motion for a new trial (T42).' The second is: 'The court's ruling at 2:157 is correct, and the court erred in departing therefrom at E10:177,179 and in entering the order at T42.'

It is of course true that the content of the motion for new trial must be ascertained. It is further true of course that if a ground or grounds related to competency, relevancy, or materiality of evidence received or the propriety of the rejection of evidence, such questions could not be passed upon in the absence of a record of the evidence unless for some reason the assignments of error may not as a matter of law be considered.

The motion for new trial in this case contains 47 specifications of grounds for new trial. A proper determination upon the subjects contained in no less than 27 of them cannot be made in the absence of opportunity to examine a record of the evidence relating to these subjects adduced at the trial. There is before this court no such record.

There is a bill of exceptions, it is true, but it is only a partial one properly prepared and presented agreeable to Rule 7, paragraphs c and d, of the Revised Rules of the Supreme Court, Part I, Practice in Supreme Court, which rule is authorized by section 25-1140, R.S.Supp., 1959. This was prepared and presented pursuant to order and request of the plaintiff.

There is another volume denominated 'Partial Bill of Exceptions No. 2' but in the light of a proper interpretation of Rule 7 of the rules of the Supreme Court and particularly paragraph e thereof this may not be regarded as a part of the bill of exceptions or as a partial bill of exceptions. If it is capable of characterization it must be regarded as an attempted amendment.

Paragraph e of Rule 7 of the rules of the Supreme Court provides for amendment and prescribes the method of accomplishment. It provides that where amendment is not agreed to by the parties the question of whether or not there shall be amendment shall be heard and decided, on notice, by the district court. It is further required that the order of the district court as to amendment shall be attached to the bill of exceptions prior to the time the case is submitted to the Supreme Court. There has been no compliance with these requirements.

This volume was prepared pursuant to praecipe filed with the clerk of the district court by the defendant and not the plaintiff. The plaintiff agrees with the conclusion arrived at herein and asserts that it is no part of the bill of exceptions and may not be considered by this court.

The only bill of exceptions here for consideration therefore is the one prepared and presented by express direction of the plaintiff and agreed to in writing by one of the attorneys for the defendant. That direction was that the court reporter prepare and file a bill of exceptions containing the evidence only of the plaintiff when she was on the stand together with the exhibits introduced.

This partial bill of exceptions does not contain any evidence essential as proof of the claim asserted by plaintiff. No evidence appears therein establishing or tending to establish a right of recovery in favor of the plaintiff. The plaintiff does not contend otherwise. It becomes clear therefore that the evidence on which the order was made is not before this court.

The sole substantial theory on which the plaintiff contends that the court erred in granting a new trial is that after the motion for new trial was submitted the court took it under advisement and, while the court had it under advisement and before ruling thereon, wrote and mailed a letter to the attorneys for the parties advising them as to views with relation to a part thereof and of the intended ruling thereon. The letter does not purport to be a ruling. It appears as exhibit 10 in the partial bill of exceptions. It points out that an appearance will be made in court and an order there entered conforming to the view expressed in the letter. The letter was dated November 6, 1959.

An order was duly rendered in court on January 22, 1960. By the order the motion for new trial was sustained. The order contains no statement of ground for sustaining the motion.

The letter got into the record in the district court on December 11, 1959, after the letter was written, when there was 'additional argument on the motion for new trial.' This was 1 month and 11 days before the order granting a new trial was rendered. It was offered by the plaintiff and received without objection.

A comment of the court precedes the admission of the letter. It perhaps has no legal force...