Romberg v. Fokken

• Decision Date: 18 February 1896
• Docket Number: 5956
• Parties: JOHN ROMBERG v. GERHARD FOKKEN
• Court: Nebraska Supreme Court

66 N.W. 282

47 Neb. 198

JOHN ROMBERG v. GERHARD FOKKEN

No. 5956

Supreme Court of Nebraska

February 18, 1896

ERROR from the district court of Cuming county. Tried below before NORRIS, J.

AFFIRMED.

M McLaughlin and J. C. Crawford, for plaintiff in error.

T. M Franse and C. C. McNish, contra.

OPINION

NORVAL, J.

This is an action at law by a lessee against his lessor to recover damages for the failure of the defendant to put the plaintiff in possession of the leased premises according to the stipulations in the lease. From a verdict and judgment against the defendant, he prosecutes error to this court.

A reversal is sought upon two grounds:

1. The verdict is contrary to, and is unsupported by, the evidence.

2. The court erred in the giving and refusing of certain instructions.

The assignment that the verdict of the jury is not sustained by sufficient evidence cannot be considered by this court, for the reason that the bill of exceptions purporting to contain the evidence adduced on the trial is not authenticated. That which purports to be a bill of exceptions, and which is attached to the transcript, does not appear to have been filed in the district court, nor has the clerk of that court certified that it is either the original bill of exceptions settled and allowed in the cause or a copy thereof, as required by law. The pretended bill, therefore, must be ignored, and cannot be considered for any purpose. (Aultman v. Patterson, 14 Neb. 57, 14 N.W. 804; Hogan v. O'Niel, 17 Neb. 641, 24 N.W. 213; Flynn v. Jordan, 17 Neb. 518, 23 N.W. 519.) But it may be said the omission of the clerk's certificate authenticating the bill must be deemed to have been waived by the parties, inasmuch as they have conceded the validity of the bill of exceptions by raising no objections thereto in this court. Yates v. Kinney, 23 Neb. 648, 37 N.W. 590, recognizes such rule, but we do not hesitate to say that it is unsound. In the exercise of its appellate jurisdiction, this court reviews the proceedings of the district court, and our only means of ascertaining what proceedings were had and taken in the trial court in any case, or what pleadings were filed therein, is the transcript of the record of that court, duly authenticated by the proper officer. If the parties may waive the certificate of the clerk of the district court to the original bill of exceptions, then there is no reason why they may not likewise waive the authentication of the transcript of the final judgment or order sought to be reviewed and the pleadings in the case. The statute requires both the transcript and the bill of exceptions to be authenticated by the certificate of the clerk of the district court, and we have no right to ignore or disregard its mandatory provisions. (Moore v. Waterman, 40 Neb. 498, 58 N.W. 940; Otis v. Butters, 46 Neb. 492, 64 N.W. 1093; Martin v. Fillmore County, 44 Neb. 719, 62 N.W. 863; Yenney v. Central City Bank, 44 Neb. 402, 62 N.W. 872.)

There is another reason why this evidence cannot be considered. It has been frequently asserted by this court that the sufficiency of the evidence to support the verdict, as well as errors in the giving and refusing of instructions, must be called to the attention of the trial court by a motion for a new trial. The record shows that a motion for a new trial was overruled by the court below, and while a...