Sch. Dist. No. 1 of Harlan Cnty. v. Bishop

• Decision Date: 21 January 1896
• Citation: 46 Neb. 850,65 N.W. 902
• Parties: SCHOOL DIST. NO. 1 OF HARLAN COUNTY v. BISHOP ET AL.
• Court: Nebraska Supreme Court

46 Neb. 850

65 N.W. 902

SCHOOL DIST. NO. 1 OF HARLAN COUNTY

v.BISHOP ET AL.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. Findings of fact reported by a referee stand in the same position as the verdict of a jury; and, in reviewing the action of a district court in setting aside such a report, the same rules will be observed as in reviewing an order setting aside a verdict.

2. The granting of a new trial is largely within the discretion of the trial court. A stronger showing is required to reverse an order allowing a new trial than to reverse one denying it.

3. Where an action at law has been referred, this court will not reverse an order of the trial court setting aside the referee's report, and allowing a new trial, when the referee failed to report any finding on material issues presented by the pleadings.

4. A court of record has the inherent authority to amend its records so as to make them conform to the facts. This power extends as well to supplying omissions as to correcting mistakes. And, in the exercise of the power, the court is not confined to an examination of the judge's minutes or other written evidence; it may proceed upon any satisfactory evidence.

5. A record disclosing a stipulation for the continuance of a cause and a peremptory order of the court dismissing it at the same term, the judgment of dismissal cannot be reviewed, in the absence of a bill of exceptions or matter of record disclosing the grounds of the court's action.

Error to district court, Harlan county; Gaslin, Judge.

Action by school district No. 1 of Harlan county, Neb., against Henry O. Bishop and others. Judgment for defendants, and plaintiff brings error. Affirmed.James McNeny, for plaintiff in error.

C. C. Flansburg, for defendants in error.

IRVINE, C.

The history of this case has been somewhat eventful, and its result is to present to us now for review questions of practice, rather than questions of substantive right. The action was begun by the school district to recover damages upon a bond alleged to have been executed by Henry O. Bishop, as principal, and the other defendants, as sureties, conditioned for the faithful performance of a contract whereby Bishop undertook to construct for the school district a certain schoolhouse; it being alleged that the contract provided that Bishop would assume all risk of losses by fire, water, or accident during the progress of the work, and deliver to the school district the building complete at a time specified. The breach alleged was that, while the work was in progress, a violent windstorm occurred, destroying the building, and that Bishop had failed and refused to replace it, to the plaintiff's damage. An answer and a reply were filed, presenting a number of issues for trial. In June, 1888, an order was made, referring the case to a referee to hear and determine the facts, and report his findings on the first day of the following term of court. It does not appear whether or not this order of reference was made by consent of the parties, but no exception was taken thereto; so the question is immaterial so far as the validity of the order is concerned. Subsequently an order was made extending the time for report. This order was made October 16, 1888, and directed the referee to report on the first day of the next term of court. The record presents some question as to whether the report was filed within time. It was filed December 27, 1888; and, the record being silent as to the dates when the different terms were held, it must be presumed that the report was filed within time. The result of the report so filed was to find due to the plaintiff from all the defendants except Henrietta Bishop the sum of $4,160.49, and to discharge the defendant Henrietta Bishop. A motion was filed to confirm this report on the part of the plaintiff, while the defendants filed exceptions thereto, and a motion to set it aside and for a new trial. The latter motion was sustained February 16, 1889, the plaintiff excepting to the court's ruling. The case was then continued from term to term for different reasons until October, 1891. In that month there was filed a stipulation of counsel agreeing to a continuance of the cause over the November, 1891, term; but an order appears at that term reciting that the cause came on to be heard, and that it was dismissed at plaintiff's costs, over an exception by the plaintiff to that ruling. Six days later a motion was filed by the plaintiff to reinstate the cause; but no entry was made at that term of any order on the motion to reinstate. In February, 1892, another judge presiding, the motion to reinstate was called up; whereupon the court, on motion of two of the defendants, entered a nunc pro tunc order, finding that on the 5th day of December, 1891, the motion to reinstate had by the former judge been overruled, and that the plaintiff had then excepted to that ruling, and directing the clerk to reform the record accordingly. Bills of exceptions were settled preserving the evidence on the hearing of February, 1892; but there is no bill of exceptions disclosing the evidence or proceedings of the November term, 1891. On this record the plaintiff prosecutes proceedings in error, his petition containing a number of assignments of error, which may, however, be reduced to three general assignments: First, the setting aside of the referees' report; second, the dismissal of the case in December, 1891; third, the making of the order of February 1892, nunc pro tunc, showing the overruling of the motion to reinstate in December, 1891.

An examination of the Code of Civil Procedure, and of the decisions of this court thereunder, shows that, where a case is referred, the findings of fact by the referee stand in the same position as the verdict of a jury, and may be confirmed, and judgment entered thereon, or may be set aside on a motion for a new trial, in conformity with the practice in other cases. Code Civ. Proc. arts. 4, 6; Simpson v. Gregg, 5 Neb. 237; Light v. Kennard, 11 Neb. 129, 7 N. W. 539; Brown v. O'Brien, 4 Neb. 195. Therefore, in considering whether or not there was error in the action of the district court in setting aside the referee's report, we should proceed in the same manner as if there had been a trial by jury and verdict similar to the report of the referee, and a motion for a new trial sustained. While the limitations upon the power of this court to review the action of a district court in granting a new trial have not yet been very distinctly defined, the adjudications have gone...