Nyce v. Shaffer

• Citation: 20 Neb. 507,30 N.W. 943
• Parties: NYCE v. SHAFFER.
• Decision Date: 06 January 1887
• Court: Supreme Court of Nebraska

20 Neb. 507

30 N.W. 943

NYCE

v.SHAFFER.

Supreme Court of Nebraska.

January 6, 1887.

Syllabus by the Court.

By section 311 of the Civil Code the time within which a bill of exceptions is to be prepared begins to run from the final adjournment of the district court. A motion to quash such bill, because not reduced to writing within the time required by law, will be overruled, unless the date of the adjournment of the district court is shown by the record.

Questions of fact are for the jury, and a verdict or finding by them on a question of fact, where the testimony is conflicting, will not be reviewed.

Objections to instructions to a trial jury will not be noticed by the supreme court, unless the attention of the trial court is first called to them by the proper exceptions at the time the instructions were given. Warrick v. Rounds, 17 Neb. 412; S. C. 22 N. W. Rep. 785.

Instructions asked and refused, or objected to, must be specifically pointed out in some way in the motion for a new trial. Omaha & R. V. R. Co. v. Walker, 17 Neb. 432;S. C. 23 N. W. Rep. 348.

Error from Hall county.

L. J. Capps, for plaintiff.

R. A. Batty, for defendant.

REESE, J.

A motion was made to quash the bill of exceptions in this case, for the reason that the same was not reduced to writing within the time required by law. The judgment was rendered February 18, 1884, and the bill of exceptions was presented to counsel for defendant in error, June 21st of the same year. It was subsequently allowed and signed by the judge before whom the cause was tried, but the date of the allowance and signing does not appear. Neither does the record anywhere show at what time the court adjourned sine die. Section 311 of the Civil Code provides that the bill of exceptions must be reduced to writing “within fifteen days, or in such time as the court may direct, not exceeding forty days, from the adjournment of the court sine die,” etc. As we have no means of knowledge when the adjournment did occur, we must presume that the bill was signed within the time fixed by the statute. The motion is therefore overruled.

The cause was submitted generally upon the brief of plaintiff in error, defendant in error having failed to present one. The action was a replevin suit, instituted by defendant in error for the possession of certain personal property levied upon by plaintiff in error, a constable, as the property of one Abram Dunkle, by virtue of a certain writ of attachment against him. The answer denied the ownership or right of possession of defendant in error, set out his official character, the issuance and delivery to him of the writ, the fact of the levy upon the property as...