Scott v. Spencer

• Decision Date: 08 November 1894
• Citation: 60 N.W. 892,42 Neb. 632
• Parties: SCOTT v. SPENCER ET AL.
• Court: Nebraska Supreme Court

42 Neb. 632

60 N.W. 892

SCOTT

v.SPENCER ET AL.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. 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 to the litigation, or their counsel, must agree upon the bill of exceptions, and attach thereto their written stipulation to that effect. Code Civ. Proc. § 311.

2. 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.

3. Where it is sought to present to this court alleged errors occurring at the trial in a district court, a bill of exceptions settled and signed as required by law is indispensably necessary. Edwards v. Kearney, 15 N. W. 329, 14 Neb. 83;Reynolds v. Dietz (Neb.) 58 N. W. 89, reaffirmed.

Appeal from district court, Buffalo county; Holcomb, Judge.

Bill by W. T. Scott against R. L. Spencer, H. D. Watson, and C. M. Clapp, impleaded with the Metcalf Cracker Company, to foreclose a mechanic's lien. From a decree for complainant, the Metcalf Cracker Company appeals. Affirmed.Dryden & Main, for appellant.

Marston & Nevins, for appellee.

RAGAN, C.

This is an appeal from a decree in equity pronounced by the district court of Buffalo county. The bill of exceptions in the case was signed and allowed by the clerk of the district court. There is no showing in the record that the judge of the district court was dead, or that he was prevented by sickness or absence from his district from signing and allowing this bill of exceptions. Counsel for the respective parties to the litigation made and filed in the case a stipulation in words and figures as follows: “It is hereby stipulated and agreed by and between the parties hereto that the bill of exceptions in the above-entitled case may be settled by the clerk of the district court.” Doubtless the clerk of the district court acted upon this stipulation as his authority for signing and allowing this bill of exceptions.

Section 311 of the Code of Civil Procedure provides that “in case of the death of the judge or when it is shown by affidavit that the judge is prevented by sickness or absence from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions, and shall have attached a written stipulation to that effect to the bill, it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do.” To confer authority upon the...