State, ex rel. Downing v. Gaslin

• Citation: 49 N.W. 353,32 Neb. 291
• Parties: STATE, EX REL. R. L. DOWNING, v. WILLIAM GASLIN, JR
• Decision Date: 30 June 1891
• Court: Nebraska Supreme Court

49 N.W. 353

32 Neb. 291

STATE, EX REL. R. L. DOWNING, v. WILLIAM GASLIN, JR

Supreme Court of Nebraska

June 30, 1891

ORIGINAL application for mandamus.

Peremptory writ of mandamus ALLOWED.

Calkins & Pratt, for relator, cited: Manfg. Mut. Fire Ins. Co. v Daboll, 44 N.W. 604 [Mich.]; Mellinger v Behren, 53 Iowa 374; Tracy v. Beeson, 47 Iowa 155; Doty v. Whittle, 11 P. 761 [Cal.]; Richards v. State, 22 Neb. 146.

Nemo, contra.

OPINION

NORVAL, J.

This is an application for a mandamus to compel the respondent, who is the district judge in and for the eighth district, to sign a bill of exceptions in a cause tried before him while sitting in the district court of Buffalo county, at the request of one of the judges of the tenth district.

At the September term, 1889, of the district court of Buffalo county, to-wit, October 1, 1889, the case of Rollin L. Downing against George W. Overmier et al. was tried before the respondent, judge presiding, and a jury, and a verdict was returned against the relator herein and in favor of the defendants aforesaid. Within three days from the date of said verdict the relator filed a motion for a new trial in said action, and before the same could be heard and disposed of the respondent leftsaid county and ceased to preside further at said court, and has not since returned in his official capacity.

On the 30th day of January, 1890, the district court of Buffalo county, the Hon. A. H. Church, one of the judges of the tenth district, presiding, overruled the motion for a new trial and gave the relator forty days from the adjournment of the term to prepare and serve his bill of exceptions. The September term of said district court adjourned from time to time, until the 7th day of February, 1890, when it adjourned sine die.

On the 19th day of March, Judge Church, upon a showing of diligence, granted the relator forty days additional time to prepare and submit to the adverse parties his bill of exceptions.

On the 24th day of April, 1890, the relator served the proposed bill upon the attorney for the defendants in said suit, who, on the 14th day of May, 1890, returned the same without objections or amendments thereto. The bill was on the same day forwarded by mail to the respondent at Alma, his place of residence, for allowance. The respondent received the same on May 17th, at which time he refused to sign it, indorsing thereon his reasons for such refusal. It is not suggested that the bill is in any respect incorrect, but the grounds upon which the respondent declined to allow and sign the bill are: First, that Judge Church had no authority to extend the time for settling the bill, because the cause was tried before the respondent, and second, because the proposed bill of exceptions was not presented to the respondent for his signature until May 19, 1890.

Section 311 of the Code provides that "When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing within fifteen (15) days, or in such time as the court may direct, not exceeding forty (40) days from the adjournment of the court sine die, and submit the same to the adverse party or his attorney of record for examination and amendment, if desired. * * * Within ten days after such submission the adverse party may propose amendments thereto, and shall return said bill with his proposed amendments to the other party, or his attorney of record. The bill and proposed amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who heard or tried the case, upon five (5) days' notice to the adverse party, or his attorney of record, at which time the judge shall settle the bill of exceptions. If no amendments are proposed, or if proposed and allowed, the proposed bill may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party or his attorney of record. When settled, the bill must be signed by the judge, with his certificate to the effect that the same is allowed. * * * In cases where a party seeking to obtain the allowance of a bill of exceptions has used due diligence in that behalf, but has failed to secure the settlement and allowance of the same, as herein required, it shall be competent for the judge who tried the cause, upon due showing of diligence, and not otherwise, to extend the time herein allowed, but not beyond forty days additional to that herein provided, making such specific directions in that behalf as shall seem just to all parties."

It will be observed that the first clause of the section authorizes the court to grant the party excepting not exceeding forty days from the rising of the court, to reduce his exceptions to writing, and submit the same to the adverse party, or his attorney of record. This power was expressly conferred by the legislature upon the court in which the trial was had, and not upon the judge who heard or tried the cause, to fix the time for reducing the exceptions to writing. It is only when additional time, beyond the first forty days, is desired that a judge at chambers is empowered to grant the extension. The motion for a new trial could not be passed upon except at some term of the district court held in Buffalo county. Judge Church is, and was, one of the judges of the tenth judicial district, and as such was qualified to hear and determine any cause, proceeding, or motion pending in his court, except in a matter where he is...