Shaw v. Diers Brothers & Company

• Decision Date: 25 November 1932
• Docket Number: 28367
• Parties: JAMES D. SHAW, APPELLANT, v. DIERS BROTHERS & COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

245 N.W. 419

124 Neb. 119

JAMES D. SHAW, APPELLANT, v. DIERS BROTHERS & COMPANY ET AL., APPELLEES

No. 28367

Supreme Court of Nebraska

November 25, 1932

APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. A clerk of the district court has no power to settle and allow a bill of exceptions, unless it is within the exceptions noted and provided for in section 20-1140, Comp. St. 1929.

2. When, solely because of absence from his district, the trial judge is prevented from settling a bill of exceptions, and no stipulation of the parties interested has been entered into providing therefor, the clerk of the district court is clothed with the power to sign and allow a bill of exceptions, only when it is made to appear by affidavit that the trial judge is absent from his district.

3. Bills of exceptions transmitted to this court, as part of proceedings on appeal or in error, import absolute verity, and affidavits filed in this court may not vary or contradict their recitals nor supply deficiencies or omissions therein.

4. It appearing that the 100 days which the orders of the district court authorize as, and to which the limitation of statute restricts, the time for presentation of the proposed bill of exceptions had expired in the instant case prior to the tender thereof, together with the necessary affidavit, to the clerk of the court, his action in purporting to settle and allow the bill is void, and such bill will, on motion, be quashed.

Appeal from District Court, Scotts Bluff County; Carter, Judge.

Proceeding under the Workmen's Compensation Act by James D. Shaw, opposed by Diers Brothers & Company, employer, and the New Amsterdam Casualty Company, insurance carrier. From a judgment denying recovery, claimant appeals.

Affirmed.

J. M. Fitzgerald, for appellant.

Hall, Cline & Williams and Clarke & Patterson, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

EBERLY, J.

This is an appeal from a judgment of the district court for Scotts Bluff county denying a recovery under the terms of the workmen's compensation law. The immediate question before the court is the vulnerability of the bill of exceptions, filed by the appealing plaintiff, to defendants' motion to quash, based on the contention that it was not presented to the proper officer for settlement and allowance within 100 days "from the adjournment sine die of the term of court * * * at which the motion for a new trial was ruled on." Comp. St. 1929, sec. 20-1140. In the consideration of this question, the following chronology is important: Judgment appealed from was rendered March 3, 1932; motion for new trial was overruled March 12, 1932. Both of these dates were days of the regular October, 1931, term of the district court for Scotts Bluff county. Transcript on appeal was filed in this court on April 9, 1932, and, also, the bill of exceptions attacked, containing the evidence adduced at the trial and purporting to have been allowed and settled and filed by the clerk of the district court for Scotts Bluff county on July 12, 1932, appears to have been filed in this court on August 29, 1932. On September 2, 1932, defendants (appellees) filed in this court a motion to quash this bill of exceptions, based on the fact that the October, 1931, term of the district court adjourned sine die on March 26, 1932, and that said proposed bill of exceptions "was not presented to the clerk of the district court for Scotts Bluff county, Nebraska, within one-hundred days after March 26, 1932, nor until the 12th day of July, 1932, and was not signed, settled or filed in the office of said clerk until said 12th day of July, 1932." The service of notice of this application, and that it would be presented to this court on September 19, 1932, at 9 o'clock a. m., etc., was accepted by appellant's attorney on August 31, 1932. On September 2, 1932, written "suggestion of diminution of the record" was likewise filed in this court, with acceptance of service of the same by appellant's attorney on August 31, 1932. In accordance therewith, it was presented to this court on September 19, 1932, and, after argument of counsel, this court sustained an application for a continuance made on behalf of defendants, and, on the record then before it, overruled the motion to quash the bill of exceptions, and sustained the motion of defendants for leave to supply, as omitted from the transcript, a certified copy of the order of the district court for Scotts Bluff county disclosing the adjournment of the October, 1931, term thereof sine die on March 26, 1932. A duly certified copy of this order of final adjournment was thereupon filed on September 19, 1932. On October 12, 1932, defendants filed a motion in this court to reconsider their motion to quash the bill of exceptions, accompanied by affidavit, and based upon the certified copy of the order of final adjournment referred to. This motion was argued and submitted at the time of the submission of this appeal on its merits.

Section 20-1140, Comp. St. 1929, covering the subject of the allowance and settlement of bills of exceptions, provides in part: "When it is shown by affidavit that the judge is prevented by * * * absence from his district, * * * it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is required to do; and shall thereupon be filed with the papers in the case, and have the same force and effect as though signed by the court."

In reference to the exercise of these statutory powers by the clerk of the district court, we are committed to the view that "A clerk of the district court has no power to settle and allow a bill of exceptions unless it is within the exceptions noted and provided for in section 311 (section 20-1140, Comp. St. 1929) of the Code of Civil Procedure." Nelson v. Johnson, 44 Neb. 7, 62 N.W. 244. And also: "The clerk of the district court is clothed with the power to sign and allow a bill of exceptions, when it is made to appear by affidavit that the trial judge is absent from his district." Chicago, B. & Q. R. Co. v. Hyatt, 48 Neb. 161, 67 N.W. 8.

The bill of exceptions in this case discloses by the certificates attached thereto that on June 13, 1932, the draft of the proposed bill of exceptions was received for "examination and amendment." On June 20, 1932, it was returned to appellant's attorney with certain proposed amendments by interlineation, which all parties agreed to. It is also certified to by the court reporter as containing all the evidence offered in the trial of the case. Then follows an affidavit, made a part of such bill of exceptions, executed by appellant's attorney on July 12 1932, setting forth that at all times subsequent to June 20, 1932, the district judge, who tried this action, was absent from the seventeenth judicial...