Scott v. Spencer

CourtSupreme Court of Nebraska
Citation60 N.W. 892,42 Neb. 632
PartiesSCOTT v. SPENCER ET AL.
Decision Date08 November 1894

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.

[60 N.W. 892]

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

[60 N.W. 893]

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...

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34 practice notes
  • Chi., B. & Q. R. Co. v. Hyatt
    • United States
    • Nebraska Supreme Court
    • 21 Abril 1896
    ...to the suit or their counsel have agreed upon the bill, and attached thereto their written stipulation to that effect. Scott v. Spencer, 42 Neb. 632, 60 N. W. 892;Glass v. Zutavern, 43 Neb. 334, 61 N. W. 579;Nelson v. Johnson, 44 Neb. 7, 62 N. W. 244;Yenney v. Bank, 44 Neb. 402, 62 N. W. 87......
  • Chicago, Burlington & Quincy Railroad Co. v. Hyatt, 6462
    • United States
    • Supreme Court of Nebraska
    • 21 Abril 1896
    ...to the suit or their counsel have agreed upon the bill and attached thereto their written stipulation to that effect. (Scott v. Spencer, 42 Neb. 632, 60 N.W. 892; Glass v. Zutavern, 43 Neb. 334, 61 N.W. 579; Nelson v. Johnson, 44 Neb. 7, 62 N.W. 244; Yenney v. Central City Bank, 44 Neb. 402......
  • Denise v. City of Omaha
    • United States
    • Supreme Court of Nebraska
    • 2 Diciembre 1896
    ...be presented by a bill of exceptions, such bill, settled and signed as prescribed by law, is indispensably necessary. Scott v. Spencer, 60 N. W. 892, 42 Neb. 632. Error to district court, Douglas county; Davis, Judge. Action by Jacob C. Denise against the city of Omaha. From a judgment for ......
  • Denise v. City of Omaha, 6886
    • United States
    • Supreme Court of Nebraska
    • 2 Diciembre 1896
    ...the trial in a district court, a bill of exceptions settled and signed as required by law is indispensably necessary." (Scott v. Spencer, 42 Neb. 632, 60 N.W. 892; Reynolds v. Dietz, 39 Neb. 180, 58 N.W. 89; Edwards v. Kearney, 14 Neb. 83, 15 N.W. 329.) AFFIRMED. ...
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20 cases
  • Chi., B. & Q. R. Co. v. Hyatt
    • United States
    • Nebraska Supreme Court
    • 21 Abril 1896
    ...to the suit or their counsel have agreed upon the bill, and attached thereto their written stipulation to that effect. Scott v. Spencer, 42 Neb. 632, 60 N. W. 892;Glass v. Zutavern, 43 Neb. 334, 61 N. W. 579;Nelson v. Johnson, 44 Neb. 7, 62 N. W. 244;Yenney v. Bank, 44 Neb. 402, 62 N. W. 87......
  • Denise v. City of Omaha
    • United States
    • Supreme Court of Nebraska
    • 2 Diciembre 1896
    ...be presented by a bill of exceptions, such bill, settled and signed as prescribed by law, is indispensably necessary. Scott v. Spencer, 60 N. W. 892, 42 Neb. 632. Error to district court, Douglas county; Davis, Judge. Action by Jacob C. Denise against the city of Omaha. From a judgment for ......
  • Denise v. City of Omaha, 6886
    • United States
    • Supreme Court of Nebraska
    • 2 Diciembre 1896
    ...the trial in a district court, a bill of exceptions settled and signed as required by law is indispensably necessary." (Scott v. Spencer, 42 Neb. 632, 60 N.W. 892; Reynolds v. Dietz, 39 Neb. 180, 58 N.W. 89; Edwards v. Kearney, 14 Neb. 83, 15 N.W. 329.) AFFIRMED. ...
  • Coy v. Miller
    • United States
    • Supreme Court of Nebraska
    • 8 Abril 1898
    ...49 Neb. 272, 68 N. W. 487;Wax v. State, 43 Neb. 18, 61 N. W. 117;Sieberling & Co. v. Fletcher, 47 Neb. 847, 66 N. W. 839;Scott v. Spencer, 42 Neb. 632, 60 N. W. 892;Romberg v. Fokken, 47 Neb. 198, 66 N. W. 282. In the case last cited it is said, “The statute requires both the transcript and......
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