Strunk v. State

• Decision Date: 02 January 1891
• Citation: 47 N.W. 640,31 Neb. 119
• Parties: STRUNK v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 119

47 N.W. 640

STRUNK

v.STATE.

Supreme Court of Nebraska.

Jan. 2, 1891.

Syllabus by the Court.

Affidavits used in the district court on the hearing of a motion to sustain or discharge an attachment must be embodied in a bill of exceptions, to be available in the supreme court.

Error to circuit court, Pawnee county; BROADY, Judge.

Motion to quash bill of exceptions.

Story & Story, for motion.

J. K. Goudy, opposed.

MAXWELL, J.

On January 13, 1890, one John Casey brought an action by attachment against the Nebraska State Bank of Pawnee City, and certain property belonging to the defendants in that action was levied upon, and also notices of garnishment served upon the plaintiff in error and others. A motion was made to discharge the attachment, and a large number of affidavits in support of and against said motion seem to have been filed. The motion to discharge the attachment was overruled as to the bank, while the motion in favor of the plaintiff in error, and also the defendant in error, was sustained. On the 21st of December, 1889, E. F. Hemstead, the owner of the alleged bank at Pawnee City, made an assignment under the statute for the benefit of his creditors, and such proceedings were had that the defendant in error was chosen assignee by the creditors, and demanded a conveyance from the plaintiff in error of the real estate belonging to Hemstead. This conveyance the plaintiff in error refused to make, whereupon the defendant in error instituted proceedings by mandamus to compel the execution of such conveyance. The judge, after a hearing in the case, granted a peremptory writ of mamdamus, and that is the order now appealed from.

The defendant in error now moves to quash the bill of exceptions because it is not certified either by the judge that tried the cause or by the clerk of the court. There is a stipulation in the record that the affidavits used on the hearing of the motion to discharge the attachment in the case of Casey v. The Bank should be used on the hearing in the mandamus proceedings, and no doubt they were so used. There is a large number of affidavits in the record entitled in the case of Casey v. The Bank, and in all probability they were read on the hearing to discharge the attachment. Whether they were or not, we have no means of knowing, as they are not in any manner authenticated. In a number of cases this court has held that affidavits used on the hearing of a motion must be preserved in a bill of exceptions to be available in a reviewing court. Ray v. Mason, 6 Neb. 102; Credit Foncier v. Rogers, 8...