Schields v. Horbach
| Decision Date | 17 April 1894 |
| Citation | 58 N.W. 720,40 Neb. 103 |
| Parties | SCHIELDS ET UX. v. HORBACH. |
| Court | Nebraska Supreme Court |
1. The judge of the district court, who passes upon a preliminary motion in a case, may properly settle a bill of exceptions preserving the evidence introduced upon the hearing of such motion, notwithstanding another judge presided at the trial of the case upon the merits.
2. The time for preparing and serving such a bill of exceptions, where no time is given to reduce the exceptions to writing, begins to run from the final adjournment of the term of court at which the decision upon the motion was made, and not from the close of the term at which the final judgment in the case was rendered.
3. Where amendments are proposed to a bill of exceptions, the draft of the bill, with the proposed amendments, must be presented to the trial judge within 10 days after the return of the same to the party seeking the allowance of the bill, upon 5 days' notice to the adverse party, or his attorney of record, of the time and place of such presentation.
4. When the party suggesting amendments to a bill of exceptions appears before the judge, and insists that his amendments be allowed, without making any objections as to the sufficiency of the notice, or that the bill was not submitted to the judge in time, he waives all objections as to the sufficiency of the notice, and as to the time the bill was presented to the judge for his approval and signature.
Error to district court, Douglas county; Scott, Judge.
Action by one Horbach against Louis Schields and wife. Judgment for plaintiff. Defendants bring error. Motion to quash bills of exception. Granted as to one bill. Denied as to the other.John P. Breen, for plaintiffs in error.
Lake, Hamilton & Maxwell, for defendant in error.
This was an action brought by defendant in error against Louis Schields to recover certain real estate situate in the city of Omaha. Subsequently, Doratha Schields filed a petition of intervention, and was made a party defendant. Horbach obtained a verdict in the district court, to reverse which the Schieldses prosecute a petition in error to this court. Two bills of exceptions were settled and allowed,--one signed by Judge Ogden, which purports to contain a transcript of the evidence introduced upon the hearing in the court below on the motion of the plaintiff to exclude Edward R. Duffie from participating in the trial of the cause as the attorney for said Doratha Schields; and the other bill of exceptions was settled and allowed by Judge Scott, which purports to contain a transcript of the evidence introduced upon the trial upon the merits. The case is submitted to us upon motions to quash both bills of exceptions. The motion to exclude Edward R. Duffie from appearing as an attorney in the case was sustained at the February, 1893, term of the disrict court of Douglas county, which term adjourned without day on April 29, 1893, but no time was given by the court for preparing and serving a bill of exceptions. At the same term of court a trial upon the merits was had to a jury, and a verdict returned. A motion for new trial was filed by the defendants, which was not passed upon until the following May term of the court, which term adjourned sine die on July 26, 1893. An order was entered extending the time 40 days for reducing the exceptions to writing, and on the 24th day of June, 1893, a second order was made, granting an additional 40 days in which to prepare and serve a bill of exceptions in the case. Both bills of exceptions were served upon counsel for Mr. Horbach on September 2, 1893, and within 10 days thereafter were returned to defendants' counsel. To the one allowed by Judge Scott, amendments were proposed, and to the one containing the evidence upon the hearing of the motion, objection was made to the same being signed and allowed by the judge, for the reason that it was not served upon the plaintiff or his attorney within the time provided by law.
The following among other grounds are now urged for quashing the bill of exceptions allowed by Judge Ogden: (1) That it was not signed by the judge who presided at the trial of said cause. (2) That the same was...
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