Pettis v. Green River Asphalt Company
| Decision Date | 02 November 1904 |
| Citation | 101 N.W. 333,71 Neb. 519 |
| Parties | EDWARD F. PETTIS v. GREEN RIVER ASPHALT COMPANY |
| Court | Nebraska Supreme Court |
MOTION OVERRULED.
The plaintiff in error in this case, having been successful in this court, and being entitled to recover his costs incurred in this court, insists that the expense of obtaining the transcript of the evidence in the court below for the purpose of settling a bill of exceptions is a part of the costs in this court and should be taxed as such. The appellant or plaintiff in error, upon obtaining judgment in this court reversing the decree or judgment of the lower court, is entitled to recover his costs in this court without regard to the further proceedings after the case is remanded to the district court, and notwithstanding that he may be ultimately defeated in the litigation. The costs, however, in the district court, whether before or after the appeal or proceedings in error in this court, are to abide the final result of the suit and to be taxed against the unsuccessful party. If the expense of settling the bill of exceptions is to be considered, under such circumstances, as costs in this court, this motion should be sustained; but if such expense is cost incurred in the district court, the motion must be overruled. National Masonic Accident Ass'n v Burr, 57 Neb. 437, 77 N.W. 1098.
Our code provides that a party objecting to the decision of a court must except at the time the decision is made, and time may be given to reduce the same to writing. Sec. 308. The exception must be stated with so much of the evidence as is necessary to explain it. Sec. 309. If the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts. Sec. 310. If the decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing within a limited time after the adjournment of the term (sec. 311), and must submit the same to the adverse party for examination. If objections are made, and the judge has determined and approved a correct statement of exceptions, it is allowed by the judge and is made a part of the record of the case. For this purpose, it is filed by the clerk and preserved by him as the other records in the case. It seems to be admitted that the bill of exceptions then becomes a record of the district court. It never becomes a permanent record of the supreme court.
The code provides that the plaintiff in error shall file with his petition in error in this court a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified (sec. 586), and also that the clerk of the district court shall upon request, and being paid the lawful fees therefor, furnish an authenticated transcript of the proceedings to either of the parties to the same or to any person interested in procuring such transcript. Sec. 587. This, of course, involves making a copy of the whole record, which would include the bill of exceptions as a part of the records of the district court. By section 1, chapter 28, laws 1881, it was provided that instead of copying the bill of exceptions into this transcript, the original bill of exceptions itself shall, on the request of any party desiring to prosecute proceedings in the supreme court, be attached to the transcript or record and be certified by the clerk of the district court to be the original bill of exceptions.
After the case is disposed of in the supreme court the bill of exceptions is to be returned to the district court upon the request of any party interested. Code, sec. 587c. If the appellant should take a transcript of the entire record of the district court, including the bill of exceptions, instead of having the original bill of exceptions attached to his transcript, his right to...
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Muff v. Mahloch Farms Co., 37604
...of a bill of exceptions is to be taxed in the district court. See, Pettis v. Green River Asphalt Co., on motion to retax costs, 71 Neb. 519, 101 N.W. 333; Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d The defendants contend that costs taxed in the district court are a part of the ......