Sch. Dist. No. 49 of Adams Cnty. v. Cooper

• Citation: 62 N.W. 1084,44 Neb. 714
• Parties: SCHOOL DIST. NO. 49 OF ADAMS COUNTY v. COOPER.
• Decision Date: 05 April 1895
• Court: Supreme Court of Nebraska

44 Neb. 714

62 N.W. 1084

SCHOOL DIST. NO. 49 OF ADAMS COUNTY

v.COOPER.

Supreme Court of Nebraska.

April 5, 1895.

Syllabus by the Court.

1. Section 586 of the Code of Civil Procedure construed, and held, the word “proceedings,” in this section, includes duly-certified copies of the pleadings on which an action was tried. If tried on pleadings filed originally in the district court, then the record brought here must contain certified copies of those pleadings. If tried in the district court without original pleadings, and on proceedings certified up on appeal, then the record here must contain certified copies of such proceedings.

2. This requirement of the statute is jurisdictional, and cannot be waived by the parties; and the filing in this court of the original pleadings used in the district court will not answer the requirements of the statute. Moore v. Waterman, 58 N. W. 940, 40 Neb. 498, followed.

3. Even though the parties should so stipulate, the original pleadings, files, or proceedings of the case cannot be examined in reviewing such case, either on appeal or error.

4. The mere stipulation of counsel in a case that the clerk of the court may sign and allow a bill of exceptions is not sufficient to confer authority upon him to do so. To confer authority upon the clerk of a district court to sign and allow a bill of exceptions, it must appear that the judge is dead, or that he is prevented by sickness or absence from his district from signing and allowing the bill; or the parties or their counsel must agree upon the bill of exceptions, and attach thereto their written stipulation to that effect. Scott v. Spencer (Neb.) 60 N. W. 892, followed.

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

Action by James Cooper against school district No. 49 of Adams county. Plaintiff had judgment, and defendant brings error. Affirmed.C. H. Tanner, for plaintiff in error.

Batty & Dungan, for defendant in error.

RAGAN, C.

James Cooper recovered a judgment in the district court of Adams county against school district No. 49 of said county, to reverse which the school district prosecutes to this court a petition in error. It appears from the briefs of counsel that the school district had caused an acre of land belonging to Cooper to be taken and appraised for school purposes; and, from the appraisal so made, Cooper appealed, or attempted to appeal, to the district court, where the case was tried to a jury, and the verdict rendered on which the judgment sought to be reversed was based. We find ourselves unable to review the errors, or any of the errors, assigned by counsel for the school district, for the following reasons:

1. The record filed here, purporting to be a transcript of the record of the case from the district court, begins by reciting that the case came on for hearing upon the special appearance of the school district objecting to the jurisdiction of the court; that this objection was overruled, and Cooper was granted leave to file an appeal bond nunc pro tunc; that the case then came on for hearing on the motion of Cooper to suppress certain depositions, which motion the court sustained; the calling and swearing of a jury, the submission of the case to it, their verdict, and the judgment of the court thereon. And this is all that the record here contains. In other words, there are in the record none of the appraisement and condemnation proceedings out of which this action grew, nor any pleadings on which the action was tried. The case was probably not tried on pleadings filed originally in the district court, nor does it seem that in a case like this one such pleadings were at that time necessary. But, in order for us to review this judgment, the plaintiff in error must bring here a duly-certified transcript of all the proceedings had in the district court. Section 586 of the Code of Civil Procedure provides: “The plaintiff in error shall file with his petition [in error] a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified.” The word “proceedings,” in this section, includes duly-certified copies of the pleadings on which the action was tried. If tried on pleadings filed originally in the district court, then the record here should contain certified copies of those pleadings. If tried in the district court without original pleadings, and on the proceedings certified upon appeal, then the record here should contain certified copies of such proceedings. In the case at bar, if this action was tried in the district court on the appraisal and condemnation proceedings had, then the record here, in order for us to review the judgment...