Palmer v. Mizner

• Decision Date: 05 November 1903
• Docket Number: 11,553
• Citation: 97 N.W. 334,70 Neb. 200
• Parties: JOSHUA PALMER, EXECUTOR OF THE LAST WILL AND TESTAMENT OF CORNELIUS VAN AUKEN, APPELLEE, v. WILLIAM MIZNER, APPELLANT, ET AL. [*]
• Court: Nebraska Supreme Court

97 N.W. 334

70 Neb. 200

JOSHUA PALMER, EXECUTOR OF THE LAST WILL AND TESTAMENT OF CORNELIUS VAN AUKEN, APPELLEE, v. WILLIAM MIZNER, APPELLANT, ET AL. ^[*]

No. 11,553

Supreme Court of Nebraska

November 5, 1903

APPEAL from the district court for Saline county:

WILLIAM G. HASTINGS, JUDGE. Motion for rehearing denied.

REHEARING DENIED.

Archibald S. Sands and E. M. Palmer, for appellant.

Fayette I. Foss, Ben V. Kohout and R. D. Brown, contra.

OPINION

SEDGWICK, J.

Upon this motion for rehearing, it is insisted that the opinion of the commissioner, to the effect that the document purporting to be a bill of exceptions can not be considered upon this appeal, because the same is not sufficiently identified by the certificate of the clerk of the district court, ought not to be adhered to.

It is suggested that in the case of Wax v. State, 43 Neb. 18, 61 N.W. 117, this court, after holding that such a certificate is indispensably necessary, still examined the bill of exceptions in that case, although not properly certified, because no objection had been made thereto by motion to quash or otherwise, and passed upon the sufficiency of the evidence to support the verdict. The same thing was done by this court in a similar case, Childerson v. Childerson, 47 Neb. 162, 66 N.W. 281.

These cases would seem to furnish some support to this argument of the appellant if the contrary doctrine was not so thoroughly established by other decisions. Our attention has been called to more than a score of decisions of this court which hold the contrary doctrine. The forty-seventh volume of the reports alone contains at least seven of these cases. In Felber v. Gooding, 47 Neb. 38, 66 N.W. 39; Childerson v. Childerson, 47 Neb. 162, 66 N.W. 281; First Nat. Bank of Greenwood v. Cass County, 47 Neb. 172, 66 N.W. 300; Romberg v. Hediger, 47 Neb. 201, 66 N.W. 283; Wood Mowing & Reaping Machine Co. v. Gerhold, 47 Neb. 397, 66 N.W. 538; Andres v. Kridler, 47 Neb. 585, 66 N.W. 649, and Seiberling & Co. v. Fletcher, 47 Neb. 847, 66 N.W. 839, it is held that an unauthenticated document purporting to be a bill of exceptions need not be examined by the court.

In Chicago Lumber Co. v. Benjamin, 50 Neb. 143, 69 N.W. 769, and Gray v. Elbling, 51 Neb. 726, 71 N.W. 720, it is held that a document not duly authenticated by the clerk as the bill of exceptions "is not before us for inspection."

In Reuther v. Zimbelman, 50 Neb. 165, 69 N.W. 837, such a document is said to be "not available." In German Nat. Bank of Beatrice v. Terry, 48 Neb. 863, 67 N.W. 856, it is held that an unauthenticated document "can not be considered". as a bill of exceptions; in Union P. R. Co. v. Thorne, 51 Neb. 472, 70 N.W. 1119, that "it must be disregarded"; and in Royse v. State Nat. Bank, 50 Neb. 16, 69 N.W. 301, that "the court can not review the evidence."

The observance of the rule has, no doubt, in many cases deprived litigants of a hearing in this court, and it is always with reluctance that a reviewing court, through the observance of technical rules, declines to hear the merits of a controversy that is brought before it, but, in this case, we are constrained to adhere to the former judgment, not only by the many prior decisions of this court referred to, but also by the fact that the rule so established is not without reason for its foundation, as well as precedents from other jurisdictions.

Under the former practice, when cases were brought to this court by proceedings in error, the bill of exceptions, after having been allowed by the court, and duly filed, and so becoming a part of the record in the case, was copied in fully by the clerk in making his transcript of the record which formed the basis of the proceedings in error in this court. By the statute of 1881, 587a of the code, it was provided that a party desiring to remove a cause to this court by proceedings in error might use the original bill of exceptions, the purpose apparently being to avoid the extra expense of procuring a copy thereof, and it was further provided that in such case the clerk in his certificate to his transcript should certify that the original bill of exceptions was attached, instead of certifying that the transcript included a copy of such bill.

Many of the cases above referred to were brought to this court under that statute; and the certificate of the clerk not showing either that the bill of exceptions had been copied in the transcript according to the former practice, or that the original bill of exceptions had been attached to the transcript, as might be done under the present statute, and there being no authentication of the bill of exceptions as the original bill, it was considered that such purported bill of exceptions was "a mere fugitive" in the record, and the same rule would apply to it as would be applied to any other paper that might be found in the record, and was not, by any certificate of the clerk, identified as any part of the record. If the clerk certified upon the transcript that it contained a true copy of the original pleadings in a case, but made no mention of any motion or demurrer, and a paper should be found in the record which purported upon its face to be a motion or demurrer, and was not authenticated or identified by the clerk as an original paper in the case, or a copy thereof,...