Romberg v. Hediger

• Decision Date: 18 February 1896
• Citation: 47 Neb. 201,66 N.W. 283
• Parties: ROMBERG v. HEDIGER.
• Court: Nebraska Supreme Court

47 Neb. 201

66 N.W. 283

ROMBERG

v.HEDIGER.

Supreme Court of Nebraska.

Feb. 18, 1896.

Syllabus by the Court.

1. In the absence of a certificate of the clerk of the district court authenticating the bill of exceptions, it will be presumed that every essential averment in the petition, not negatived by the verdict, was proven, and that the instructions refused were properly denied.

2. Instructions not excepted to when given cannot be reviewed in the appellate court.

3. The fifth paragraph of the court's charge to the jury not considered, because the giving was not properly assigned for error, in either the motion for a new trial or petition in error.

Error to district court, Cuming county; Norris, Judge.

Action by Rudolph Hediger against John Romberg. There was a judgment for plaintiff, and defendant brings error. Affirmed.M. McLauglin and J. C. Crawford, for plaintiff in error.

T. M. Franse and Uriah Bruner, for defendant in error.

NORVAL, J.

Rudolph Hediger sued John Romberg, in the court below, to recover damages alleged to have been sustained by reason of his having been ejected from a certain farm in Cuming county at the instance of the defendant, under a writ of restitution on a judgment in an action of forcible detainer, wherein Romberg was plaintiff and Hediger was defendant, after an appeal undertaking had been filed by said Hediger, and after the justice before whom said cause was tried had recalled said writ of restitution. To the petition in the case before us the defendant answered, admitting certain averments therein, and denying others. Upon the trial, plaintiff recovered judgment, and the defendant brings the cause to this court on error.

It is argued that there is an entire failure of proof to sustain the allegation in the petition that the defendant leased to the plaintiff the premises from which he was evicted. Whether this is true or not we are unable to determine, since there is no certificate of the district court authenticating the bill of exceptions. Romberg v. Fokken, 47 Neb. 198, 66 N. W. 282.

Complaint is made in the brief of the refusal of the court to give the following instructions, requested by the plaintiff in error: “(2) You are instructed that the plaintiff has not shown any right of property or right of possession in the premises described in the petition, and you will therefore find for the defendant. * * * (4) You are instructed that the plaintiff has not shown that he had leased the premises for the year commencing March 1, 1890, nor that he had paid anything for the use of said premises. Hence, he cannot recover the value of the use of said premises. (5) Under the evidence and the law in this case, the plaintiff is not entitled to recover more than nominal damages.” These requests to charge can only be considered in connection with...