State ex rel. Cobb v. Fawcett

• Decision Date: 08 January 1902
• Citation: 88 N.W. 681,63 Neb. 523
• Parties: STATE EX REL. COBB v. FAWCETT, JUDGE.
• Court: Nebraska Supreme Court

63 Neb. 523

88 N.W. 681

STATE EX REL. COBB

v.FAWCETT, JUDGE.

Supreme Court of Nebraska.

Jan. 8, 1902.

Syllabus by the Court.

Matters merely in the judge's mind, and which were in no way a part of the public proceedings at a hearing, are not properly a part of a bill of exceptions, and one who is refused a bill of exceptions unless such matters are incorporated is entitled to a writ of mandamus to compel the settling of a bill which shows the actual proceedings.

Commissioners' opinion. Department No. 1. Application by the state, on the relation of Grant S. Cobb, for a writ of mandamus to Jacob Fawcett, judge of the Fourth judicial district. Writ granted.Brome & Burnett and V. O. Strickler, for relator.

Ralph W. Breckenridge, for respondent.

HASTINGS, C.

In this case, on application for the settling of a bill of exceptions as to a hearing on November 18, 1901, on a motion to vacate an order of July 8, 1901, the trial court insists on having incorporated a number of statements of things within his personal and official knowledge at the time he made the order of July 8th. Relator insists that he has a legal right to a bill of exceptions showing simply what was done on November 18th, and that the judge cannot attach any conditions to such right. In our opinion, the relator discloses a right to a peremptory writ. The respondent admits that the affidavits shown in the bill of exceptions were tendered in evidence at the hearing on November 18th, and that no other evidence was. The matters which respondent seeks to have added relate wholly to what the judge knew “personally and officially.” In our view, what the judge knew “personally and officially,” if no public utterance of it was made at the hearing, would have no more to do with this bill of exceptions than would what any one else knew who kept his knowledge to himself. The matters, moreover, seem to be wholly as to what moved the action of July 8th. The office of a bill of exceptions is to exhibit to the appellate court those portions of the public proceedings at the trial which the complaining party deems material for the appellate court's consideration, and which would otherwise not go into the record. His right to have it settled is a legal right, which is enforceable by mandamus. State v. Dickinson, 58 Neb. 56, 78 N. W. 382. The trial court has no right to burden the appellant with any such conditions as to the insertion of matters which did not publicly transpire, and which the...