Spielman v. Flynn
| Decision Date | 11 March 1886 |
| Citation | 27 N.W. 224,19 Neb. 342 |
| Parties | BENJAMIN SPIELMAN, PLAINTIFF IN ERROR, v. THOMAS FLYNN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Platte county. Heard below before TIFFANY, J., sitting for POST, J.
REVERSED AND REMANDED.
McAllister Brothers, for plaintiff in error.
This action was brought before a justice of the peace of Platte county by Thomas Flynn against Benjamin Spielman, David Anderson, Joseph Schmitz, Peter Zibach, Geo. Berney, W. D. Davis, Henry Ahrens, Gerhart Loseke, and Charles Medaedel to recover the value of fourteen calves, which it is alleged Spielman, as sheriff of Platte county, levied upon and sold. The cause was removed under the statute to the county court of Platte county, the names of the sureties being stricken from the bill of particulars. A trial was had in the county court from which an appeal was taken to the district court.
The petition filed in the district court is as follows:
"Plaintiff complains of defendant, and alleges that said defendant, on the 14th day of December, 1881, unlawfully and forcibly took from the premises of plaintiff and forcibly and unlawfully carried away fourteen (14) yearling calves of the value of fifteen dollars ($ 15) each, the property of plaintiff, and still unlawfully detains the same--to the damage of the plaintiff in the sum of one hundred and ninety dollars ($ 190), for which sum plaintiff prays judgment with interest," etc.
Spielman in his answer states in substance that at the time indicated he was sheriff of Platte county; that at the September term of the district court of said county one Peter Klinchi recovered a judgment against one Michael O'Hearn for the sum of $ 900, and costs; that on the 23d day of December, 1881, said judgment being in full force and effect the clerk of said court issued an execution thereon directed to said Spielman as sheriff; that on said day said Flynn "pretended to purchase said calves from said Michael O'Hearn, and did take possession of said calves and remove them from the custody and possession of said Michael O'Hearn, under and by virtue of a fraudulent and corrupt conspiracy with said Michael O'Hearn to hinder, delay, and defeat the collection of said execution," and that "acting as such sheriff he levied upon and sold said calves."
Flynn in his reply admits that Spielman was sheriff and was acting under an execution as alleged, "admits that one Peter Klinchi recovered a judgment against O'Hearn, and that at said time said judgment was not satisfied," "admits that at the time said calves were seized by said defendant they were in his possession, and denies each and every other allegation of the said answer."
The issues made by the pleadings have been stated, because to some extent at least they seem to have been lost sight of in the trial of the case, and as an answer to the first objection of the plaintiff in error that the action is brought to recover for the misconduct of an officer in office, of which a justice of the peace would not have jurisdiction.
An examination of the petition will show that the action is for the conversion of the property--for its value, and not for misconduct. In this regard the action is substantially like that of Miller v. Roby, 9 Neb. 471, 4 N.W. 65, and Neihardt v. Kilmer, 12 Neb. 35. In the latter case it is said in the syllabus that a justice of the peace has jurisdiction of an action for the taking and converting of personal chattels of the value of two hundred dollars or under, and is not ousted of such jurisdiction by pleading and proof that defendant took such chattels by virtue of an execution, he being the sheriff. These cases are decisive of this question and the first objection is not sustained.
2d. That the court erred in suppressing the testimony of Spielman. The record contains the following stipulation:
This stipulation was signed by the attorneys for both parties. It appears that the attorneys for the defendant below had procured from the court reporter a copy of the testimony of Spielman on the former trial; that on the day of trial the attorneys for the plaintiff below asked for an order to permit them to inspect such testimony. The record shows that, "thereupon it was ordered that counsel for defendant submit said evidence to the inspection of plaintiff's counsel immediately, and that on failure so to do said evidence be excluded from the jury on the trial of this cause." The order also recites that "this motion was first made on the day of trial and after the case was called for trial." The order does not seem to have been complied with, and when the attorneys for the defendant below offered a certified copy of the testimony of Spielman in evidence, it was objected to for the following reasons: First, Because of the refusal of the attorneys for Spielman to permit an inspection of the testimony. Second, Because there is nothing to show that "this is the evidence of Benjamin Spielman on the former trial of this case." Third, There is nothing to show that this is all the evidence given by Spielman on the former trial. Fourth, That there is no certificate or anything else to show that this is a true and correct copy of the testimony of Spielman. These objections were sustained, and the testimony excluded. The certificate is as follows: the court reporter at the time of the trial. This certificate although not very formal is sufficient prima facie to show a correct copy of all of Spielman's testimony.
The present act to provide stenographic reporters for the district courts was passed in 1877, and is substantially embodied in chapter 19, Comp. Statutes, section 47 of which provides that "the said reporter shall attend all terms of the district court held within and for the district for which he is appointed, and shall make a stenographic report of all oral proceedings had in such court, including the testimony of witnesses, with the questions to them, verbatim, any further proceedings or matter when directed by the presiding judge so to do."
Sec. 48 provides that
Sec. 49 makes it "the duty of such reporter to furnish on the application of the district attorney, or any party to a suit in which a stenographic record of proceedings has been made, a long-hand copy of the proceedings so recorded, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of five cents per hundred words, to be paid by the party requesting the same," etc.
It will be observed that the statute makes the office a public one, and requires it to be kept in the district where the reporter is exercising the duties of his office; that the reports themselves are designated records and declared to belong to the state, and it is made the duty of the reporter to furnish a long-hand copy of the proceedings in a suit or any part thereof to any party to the action. From the necessity of the case such transcripts must be certified.
Sec. 408 of the code provides that "duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original records or papers so filed."
This section, no doubt, applies to the records of evidence kept in pursuance of law by a court reporter, and the copy would be admissible in all cases where it would be proper to...
To continue reading
Request your trial