State Ins. Co. v. Buckstaff Bros. Manuf'g Co.

• Decision Date: 04 February 1896
• Citation: 47 Neb. 1,66 N.W. 27
• Parties: STATE INS. CO. v. BUCKSTAFF BROS. MANUF'G CO.
• Court: Nebraska Supreme Court

47 Neb. 1

66 N.W. 27

STATE INS. CO.

v.BUCKSTAFF BROS. MANUF'G CO.

Supreme Court of Nebraska.

Feb. 4, 1896.

Syllabus by the Court.

1.A written stipulation of facts or mode of proof filed in a cause forms no part of the record, unless made so by a bill of exceptions.

2.Nor can such stipulation make a part of the record in which the same is filed the bill of exceptions settled and allowed in another cause.

3.Where the petition in error presents no question for review, the judgment of the trial court will be affirmed.

Error to district court, Lancaster county; Hall, Judge.

Action by the Buckstaff Bros. Manufacturing Company against the State Insurance Company of Des Moines.Judgment for plaintiff.Defendant brings error.Affirmed.J. Fawcett, Greene & Breckenridge, and Stevens & Cochran, for plaintiff in error.

C. O. Whedon, for defendant in error.

PER CURIAM.

This cause was submitted on the motion of the defendant in error to affirm the judgment of the trial court.We have held, where an examination of the record of a cause brought to this court for review discloses that the petition in error presents no question for consideration on a motion to dismiss the proceedings, the cause will be considered on its merits, and the judgment affirmed.Upton v. Cady, 38 Neb. 209, 56 N. W. 881;Erck v. Bank, 43 Neb. 613, 62 N. W. 67.The rule stated above is a salutary one, and its enforcement will tend to discourage the bringing of cases to this court for delay merely.

The petition in error herein contains 48 assignments, of which 4 question the sufficiency of the evidence to support the verdict; 3 attack the rulings of the court upon the admission of testimony; 2 relate to challenges of jurors; 27 are predicated upon the giving and refusing of that number of instructions, while but 1 instruction is copied into the transcript; 6 are based upon submitting to the jury special findings from 1 to 6, inclusive, and no such findings have been certified up; 1 that the verdict is contrary to the fifteenth instruction, no such instruction being in the record; and 1 that the court erred in overruling the motion for a new trial.Of course, we must disregard the assignments which are foreign to the record, and it is obvious that not one of the other errors assigned can be considered without reference to a bill of exceptions containing the evidence adduced on the trial in the court below, and preserving the rulings complained of, and the exceptions thereto.The important inquiry is whether there is any bill of exceptions in this case.In the transcript brought here we find the following stipulation of the parties: “In the District Court of Lancaster County, State of Nebraska.The Buckstaff Brothers Manufacturing Company vs. State Ins. Co. of Des Moines.Stipulation.It is hereby stipulated and agreed that this case be submitted to the jury now in the box in the case of the Buckstaff Brothers Manufacturing Company versus the American Fire Insurance Company of New York, upon the record already made in the said case; the jury to consider all of the oral testimony and exhibits admitted in said case.All of the exhibits admitted or offered in said case are to be taken and considered as applicable to this case; all of the testimony offered, whether oral or written, and excluded by the court, shall be considered as offered in this case; and all of the rulings of the court during the trial of said American Fire Insurance Company's case shall be considered as having been made in this case, and all of the exceptions to said testimony and said rulings shall be considered as in this case.The intention being that this case, when submitted, shall be upon the same record, in all respects, with the same rights and exceptions to both parties, as in said case of Buckstaff Brothers Manufacturing Company versus the American Fire Insurance Company of New York.It is understood that the defendant makes no defense by reason of insufficiency of proofs of loss, and no further testimony is to be introduced in this case, excepting only the insurance policy sued on.This case is to be submitted upon the instructions of the court to be given to the jury, and it is understood that the instructions asked for by both parties in said American Fire Insurance Company case shall be considered as asked for by the respective parties in this case.Buckstaff Brothers Manufacturing...