State v. Bartley

• Decision Date: 08 December 1898
• Citation: 56 Neb. 810,77 N.W. 438
• Parties: STATE v. BARTLEY ET AL.
• Court: Nebraska Supreme Court

56 Neb. 810

77 N.W. 438

STATE

v.BARTLEY ET AL.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. Retention or rejection of a juror, during the impaneling of a jury, to whom an objection has been interposed, is a matter within the discretion of the trial judge, and, in the absence of an abuse of such discretion, will furnish no available error.

2. To obtain a review in this court of questions raised in a motion for a new trial, an exception must be taken at the time of the decision to the overruling of said motion.

3. The Code of Civil Procedure, in all its provisions and all proceedings under it, must be liberally construed, with a view to promote its object, and assist parties in obtaining justice. Code Civ. Proc. § 1.

4. To obtain a review of the proceedings of the trial court in a suit, an exception to the final judgment is unnecessary.

5. A journal entry disclosed the presentment of a motion for a new trial; in the same entry was stated that defendants moved for judgment, also the rendition of the same,--following all of which there appeared this: “To all of which plaintiff duly excepts.” Held sufficient evidence of the exception to the action of the court on the motion for a new trial, although somewhat questionable practice to have the exception so noted.

6. The instructions to a jury are proper matters of the record, and need not, in general, be preserved in the bill of exceptions. Blumer v. Bennett, 63 N. W. 14, 44 Neb. 873.

7. Taking an exception is an act of counsel in court. The evidence of the act is its notation of record. Blumer v. Bennett, 63 N. W. 14, 44 Neb. 873.

8. A prepared statement in writing of the exceptions to the giving specifically designated instructions, also to refusals to give requested ones duly filed at the proper time, indorsed by the trial judge “Allowed,” and authenticated as a part of the proceedings, held to furnish evidence of the exception having been made, and to not be an improper manner of notation; also properly of the record.

9. Instructions to a jury which leave that body at liberty to infer or find facts as existent of which there is no evidence are erroneous; and such errors, unless without prejudice, furnish ground for reversal of a judgment.

10. The verdict, insomuch as it was necessarily based on a negative finding upon one of the issues in relation to an alleged failure or default of a state treasurer in the performance of the obligations of his official bond, determined not sustained by sufficient evidence, contrary to the evidence, the instruction of the court, and the law.

Error to district court, Douglas county; Powell, Judge.

Action by the state against Joseph S. Bartley and others. There was a judgment for defendants, and the state brings error. Reversed.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

John C. Cowin, E. M. Bartlett, James Manahan, Frank T. Ransom, E. E. Brown, N. S. Harwood, John H. Ames, and C. C. McNish, for defendants in error.

HARRISON, C. J.

In the petition in this, an action commenced in the district court of Douglas county, it was pleaded that Joseph S. Bartley was duly elected treasurer of the state for a specific stated term, furnished the necessary bond, and assumed the duties of the said office. It was further alleged that in Douglas county he converted to his own use the sum of $201,884.05, and had failed and refused to account for said sum, or to turn the same over to his successor in office. It was also set forth that he had failed to account for or pay to his successor a sum of $353,906.61, with which he, as such officer, stood charged. This suit was on the bond against him as principal, and the other defendants as sureties, to recover the amounts of the alleged shortages in his accounts, aggregating $555,790.66. The petition also contained an allegation that the Omaha National Bank was a duly accepted, approved, and designated state depositary for the funds of the state, and had on a designated date on deposit a sum of the public moneys in excess of $201,884.05. The answers of the defendants were of much the same tenor, except in that of Mary Fitzgerald there was a further defense,--that of her insanity at the time she signed the bond in suit. Of each of the answers was a portion whereby it was sought to raise the question of the jurisdiction of the trial court to entertain and hear the cause. Issues were joined, and a trial resulted in a verdict and judgment for the defendants, and the state seeks a review of the proceedings.

In the brief filed for plaintiff in error, there is first contained a complaint of some orders and actions of a judge or the judges of the trial court, of whom there are several in the district of the trial of the cause, with reference to before which one the trial of the suit should be, and its ordered removal from the call which would have brought it on for trial before one of the judges, to the call which caused the trial to be before another judge. Whatever there may have been of these things, an examination of the record does not disclose other than a desire of the judge who presided during the trial to fairly and impartially conduct the same. We do not know whether counsel, in the remarks on this subject, merely indulged a wish to scold a little; but, whatever may have prompted the remarks, the record shows nothing reprehensible, erroneous, or extraordinary in the actions which furnished the basis for the statements in the brief. In each of the matters of rejections and retentions of jurors to which reference is made in the argument for plaintiff in error, the trial court might exercise its discretion, and, without an abuse thereof, they can furnish no cause for reversal. There was no abuse of the discretion, and the argument fails. Railway Co. v. Beeson, 36 Neb. 361, 54 N. W. 557.

We will now turn our attention to some arguments for the defendants in error relative to points of practice, in each of which it is asserted there is a lack or failure of proper objections, or to preserve exceptions to decisions or actions of the trial court, such as precludes their presentment for review here. Of these is that there was no exception to the ruling on the motion for a new trial. Such an exception is necessary to obtain a review of questions raised in the motion. Van Etten v. Medland, 53 Neb. 569, 74 N. W. 33;Tuomey v. Willman, 43 Neb. 28, 61 N. W. 126. If an exception was noted to the overruling of the motion for a new trial, that it was done appears in the following journal entry: “Now, on this day, this cause coming on for hearing upon the motion of the plaintiff filed herein, to set aside the verdict of the jury heretofore rendered in this case, and for a new trial herein, the court, on consideration whereof, being fully advised in the premises, overrules said motion. Thereupon, on motion of defendants for judgment on the verdict, it is considered by the court that the above-entitled cause be, and the same hereby is, dismissed, and that the said defendants, and each of them, go hence without day, and recover of and from the said plaintiff their costs herein expended, taxed at $______, to all of which the plaintiff duly excepts; and, on application, is hereby given forty (40) days from and after the rising of the court at its present term in which to prepare and serve bill of exceptions herein.” The argument here is: That the entry discloses two motions,--one for plaintiff, which was overruled, and no exception taken; a motion for judgment, sustained, to “all of which the plaintiff duly excepts.” That this was an exception to the affirmative action on the motion for judgment and entry of judgment, or the exception was, at least, indefinite, and cannot be said to be applicable to the negative action as to the motion for a new trial. In section 1 of the Code of Civil Procedure it is prescribed: “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice.” With this in view, the exception noted in the entry which we have quoted must be held directed against the order relative to the new trial. No exception to the final judgment or to the ruling by which it was rendered was necessary (Erck v. Bank, 43 Neb. 613, 62 N. W. 67); and to say, where there is a statement of an order overruling a motion for a new trial, also of a rendition of judgment, and motion for it sustained, and all are blended or appear in statement in one journal entry, and the statement in regard to exceptions is at the close of the entry, and such notation of exception is worded as the one in this case, that it is applicable to the action relative to which none was necessary, and inapplicable to the one as to which it was a vital necessity, or that it was so indefinite that the ruling against which it was specifically directed is not ascertainable or cannot be discerned, would not be giving force to the rule of construction to which we have referred, but would be to ignore it. It would, doubtless, in this case, have been better practice to have secured an entry to be made which would have shown, beyond a possibility of question or even cavil, the exception to the order on the motion for a new trial; but we must consider the record as made, and we conclude the exception to such order is sufficiently disclosed by the record.

It is also urged for defendants that there were no exceptions to the instructions of the court, or its refusal to give requested instructions. There is in the record a copy of a paper which the clerk of the court states was duly filed, and which is marked “Exception by plaintiff,” and “Exceptions taken by plaintiff to instructions given by the court on its own motion, and to the refusal of the court to give instructions requested...