State ex rel. League of Neb. Municipalities v. Loup River Public Power Dist.

• Citation: 62 N.W.2d 682,158 Neb. 160
• Decision Date: 12 February 1954
• Docket Number: No. 33423,33423
• Parties: STATE ex rel. LEAGUE OF NEBRASKA MUNICIPALITIES v. LOUP RIVER PUBLIC POWER DIST. et al.
• Court: Nebraska Supreme Court

Page 682

62 N.W.2d 682

158 Neb. 160

STATE ex rel. LEAGUE OF NEBRASKA MUNICIPALITIES v. LOUP RIVER PUBLIC POWER DIST. et al.

No. 33423.

Supreme Court of Nebraska.

Feb. 12, 1954.

Syllabus by the Court.

1. Affidavits used in district court upon the hearing of a motion and not preserved in a bill of exceptions will not be considered on appeal.

2. In all appellate proceedings the record of the trial court imports absolute verity.

3. On appeal, error will not be presumed, but must affirmatively appear from the record.

4. In the absence of a bill of exceptions it will be presumed that issues of fact raised by the pleadings were supported by the evidence and that such issues were correctly determined.

5. A question requiring an examination of the evidence will be disregarded in the absence of a bill of exceptions preserving the evidence.

6. Where no ruling is shown on a demurrer to a pleading and it appears that thereafter trial was had the demurrer will be held to have been waived.

7. In the absence of a valid bill of exceptions, the only issue that can be considered on appeal is the sufficiency of the pleadings to sustain the judgment.

8. The court has no power by mandamus to control the decision of those matters which are left by statute to the discretion of the governing body of a governmental agency.

9. A peremptory writ of mandamus should be issued only where the legal right to it is clearly shown.

10. Mandamus, while classed as a law action, is an extraordinary remedy, which is not awarded as a matter of right, but rests in the sound discretion of the court governed by equitable principles, and will not issue when to do so would compel the doing of a substantial wrong.

Perry & Perry, W. W. Nuernberger, Lincoln, for appellant.

Crosby & Crosby, North Platte, Walter, Albert & Leininger, Columbus, Davis, Healey, Davies & Wilson, Lincoln, for Consumers Public Power Dist.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

In this action relator sought a peremptory writ of mandamus. The trial court denied the writ. Relator appeals. We affirm the judgment of the trial court.

In brief summary relator filed its petition seeking the writ on December 15, 1952. On the same day order to show cause was issued answerable December 29, 1952. On the latter date respondents answered. Relator demurred 'for the reason that the Answer does not state any facts constituting a defense.' The Consumers Public Power District filed a petition in intervention resisting the writ. The journal entry shows that oral objection was made to the intervention and no ruling thereon. On that day the trial court denied the peremptory writ of mandamus.

The court then took under consideration a motion of relator to make individual cities and villages 'parties defendants' and a motion of the respondents for dismissal of the case. On April 10, 1953, the court denied the motion of relator, granted the motion of respondents, and dismissed the action.

On April 16, 1953, relator filed in one pleading a motion seeking to set aside the dismissal, a motion for trial on the merits, and a motion for a new trial. On May 7, 1953, this motion was overruled. Relator appeals.

The relator's assignments of error may be reduced to the contentions hereinafter considered.

Relator contends the court erred in reciting in its journal entry that a trial had been had whereas in truth no trial was had, but only an argument on questions of law and that a trial on the merits should have been permitted. The journal entry shows that 'said matter proceeded to trial to the Court' on December 29, 1952.

Relator further assigns error in that the court failed to permit it to appear and argue its demurrer. Among other things the journal entry shows a reference to a demurrer on behalf of relators, appearance by counsel for relators, and 'said matter having been argued to the Court.' There is nothing to indicate that argument was not had on the demurrer as a part of 'said matter.'

Relator further assigns error in the court's statement in the journal entry that the relator orally moved to make individual cities and villages 'parties defendants' contending that the motion made was to make them 'parties relator,' and that the court erred in failing to grant the motion which relator here contends it made. The journal entries for December 29, 1952, and April 10, 1953, both refer to a motion to make the cities and villages parties defendant.

The relator further contends that the court erred in permitting and considering an oral motion for dismissal where 'trial on the merits' had not been had.

The relator further contends that there was a stipulation made in open court in January 1953, that the cause should be continued without further decision pending negotiations of the parties, and that the court erred in ignoring that stipulation when it made its judgment of April 10, 1953. No journal entry of such a stipulation appears.

The transcript shows that after the journal entry herein referred to had been filed relator filed the pleading entitled a motion to set aside dismissal, for trial on the merits, and for a new trial. In this motion relator made all the contentions now urged in its assignments of error, including those hereinabove summarized. Concurrently with this motion was filed an affidavit of relator's counsel to the effect that no trial was had and that there had been a stipulation made with counsel for one of respondents that the matter be held in abeyance without decision pending negotiations for settlement. Subsequently there was filed an affidavit of the counsel for respondent that he had made no such stipulation.

On May 7, 1953, the trial court denied the motion. Subsequently there has been filed here an affidavit of the court reporter 'that during the progress of said case, there was no testimony reported by me.'

This appeal is here on the transcript without bill of exceptions as to any of the matters herein mentioned. The rule is: 'Affidavits used in district court upon the hearing of a motion and not preserved in a bill of exceptions will not be considered on appeal.' Wytoski v. Kiolbassa, 96 Neb. 173, 147 N.W. 126.

Obviously affidavits filed here cannot be considered under these circumstances.

In all appellate proceedings the record of the trial court imports absolute verity. Kennedy & Parsons Co. v. Schmidt, 152 Neb. 637, 42 N.W.2d 191.

In Buck v. Zimmerman, 144 Neb. 719, 14 N.W.2d 335, we had an appeal where there was no bill of exceptions. We there held: 'Appellant contends that no evidence was taken and hence there was no evidence to make up a bill of exceptions. The order entered by the trial court plainly shows that a hearing was had and evidence taken. This court has held many times that the record imports absolute verity and it may not be disputed on appeal.

'On appeal, error will not be presumed, but must affirmatively appear from the record. First Nat. Bank of Broken Bow v. Stockham, 59 Neb. 304, 80 N.W. 899. In the absence of a bill of exceptions it will be presumed that issues of fact raised by the pleadings were supported by the evidence and that such issues were correctly determined. Backes v. Schlick, 82 Neb. 289, 117 N.W. 707. The evidence upon which the trial court acted not being before us, there is nothing for us to decide. It is a rule long established that a question requiring an examination of the evidence will be disregarded in the absence of a bill of exceptions preserving the evidence. Doolittle v. American Nat. Bank of Omaha, 58 Neb. 454, 78 N.W. 926.'

In Reeker v. Reeker, 152 Neb. 390, 41 N.W.2d 231, 232, we held: 'In this state of the record the rule that affidavits used in the district court upon the hearing of a motion and not preserved in a bill of exceptions will not be considered on appeal is applicable and the only conclusion that can be reached is that there has been no record presented which will permit of a review of the discretion exercised in this case by the trial court.'

Under this state of the record and consistent with our holdings, the assignments above discussed cannot be sustained.

This brings us to relator's contention that the court erred in dismissing the action without first ruling on its demurrer to respondents' answer; and in failing to sustain the demurrer. The transcript does not show a ruling on the demurrer.

Section 25-2164, R.R.S.1943, provides that in mandamus cases no other pleading or written allegation is allowed than the writ and answer.

In State ex rel. Glatfelter v. Hart, 106 Neb. 61, 182 N.W. 567, a demurrer to the writ was filed and sustained. We held that the demurrer was irregular, but was to be treated as an admission of the facts alleged in the writ. The relator's demurrer was obviously so considered by the trial court here for the journal entry refers to the petition and application of the relator, the filing of an answer by the respondents, 'and issue having been joined by filing of demurrer on behalf of' relator 'said matter proceeded to trial.' No objection appears to that construction of the demurrer. However, if it is to be treated as a demurrer in the usual sense, then the following...