Thompson v. Mo. Pac. Ry. Co.
| Decision Date | 03 March 1897 |
| Citation | 70 N.W. 385,50 Neb. 330 |
| Parties | THOMPSON v. MISSOURI PAC. RY. CO. |
| Court | Nebraska Supreme Court |
A motion to quash a bill of exceptions which has been duly allowed by the trial judge and properly authenticated, made more than a year after the filing of the same and the transcript in this court, and after the service of briefs on the merits, comes too late.
On rehearing. Denied.
For former opinion, see 69 N. W. 1119.
Defendant asks for a rehearing of its motion to quash the bill of exceptions herein, which motion was based upon two grounds, not considered in the former opinion: (1) That no notice of the settlement of the bill of exceptions was served upon the defendant; (2) that the proposed bill was not presented to the trial judge within the time required by law. The term of court at which the judgment was rendered adjourned sine die on May 1, 1894, and 40 days from the rising of the court was given to reduce the exceptions to writing. Subsequently the time was extended for an additional 40 days. On July 17, 1894, the draft of the proposed bill of exceptions was served upon counsel for defendant, which was returned to plaintiff, with certain proposed amendments, 11 days thereafter. The bill and the amendments suggested were submitted to the trial judge for allowance without notice to the defendant. Judge Chapman makes affidavit that it was not presented to him for allowance until September 6th, while Mr. Gering, in his affidavit, explicitly states that the bill and proposed amendments were delivered to the trial judge for settlement and allowance prior to August 1, 1894. The transcript and bill were filed in this court on the 20th day of October, 1894. The briefs upon the merits were filed August 15, 1895, by both parties, and the motion to quash was not filed until nearly a year and a half thereafter.
The question of veracity between Judge Chapman and Mr. Gering we shall not attempt to decide, but shall assume that the bill was presented for allowance as required by law, since the judge signed the bill without raising any objection as to time, and the defendant retained the proposed bill more than 10 days after service upon it. Moreover, this objection to the bill was waived by the filing of briefs on the merits, and the inexcusable delay in raising it in this court. Yates v. Kinney, 23 Neb. 648, 37 N. W. 590.
The other ground of the motion to quash would have been available had it been timely...
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