Tootle-Weakley Millinery Company v. Billingsley
| Decision Date | 05 October 1905 |
| Docket Number | 13,928 |
| Citation | 105 N.W. 85,74 Neb. 531 |
| Parties | TOOTLE-WEAKLEY MILLINERY COMPANY, APPELLANT, v. L. W. BILLINGSLEY, TRUSTEE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: EDWARD P HOLMES, JUDGE. Affirmed and remanded with directions.
Judgment of the district court affirmed in part, and, cause remanded in part, with directions.
Wilson & Brown, for appellant.
Joseph E. Philpott, contra.
LETTON C. AMES and OLDHAM, CC., concur.
This is an appeal from an equitable action instituted by the appellant in the district court for Lancaster county to obtain a new trial in a certain cause pending in that court, and in which judgment was entered on the 2d day of April, 1903, against the appellant and in favor of L. W. Billingsley, trustee. In January, 1900, the appellant filed in the district court for Lancaster county his petition against the Globe Savings Bank, and certain sureties upon a bond given to the state of Nebraska to pay the debts of said savings bank, and against Sadie E. Puckett. The petition alleged, in substance, that Sadie E. Puckett had deposited certain money in said savings bank; that she had assigned her passbook and account to the Tootle-Weakley Millinery Company; that the bank was insolvent, and that the sureties were liable for the amount of the deposit. After this petition was filed, Sadie E. Puckett was adjudged a bankrupt, and L. W. Billingsley was appointed as trustee of her estate. On May 8, 1902, the trustee obtained leave to file an answer and cross-petition to the petition of the Tootle-Weakley Millinery Company, within ten days. On February 3, 1903, without further leave of court, Billingsley, trustee, filed an answer and cross-petition. The cross-petition alleged that the passbook was the property of Sadie E. Puckett; that it came into the possession of the Tootle-Weakley Millinery Company without her knowledge or consent; alleged a demand for its return, and refusal; that it was of the value of $ 500; and prayed judgment for its value. No notice of the filing of this cross-petition was served upon the appellant, but on March 10 the plaintiff was given five days to plead to the same. On the 19th of March the default of the plaintiff to the cross-petition was entered; and the record recites that on the 2d day of April, 1903, the parties appeared by their attorneys, a trial had to the court without the intervention of a jury, the same being waived by agreement in open court; and a finding in favor of Billingsley, trustee, upon the cause of action set forth in the cross-petition was made, and a judgment for $ 532.64 was rendered against the plaintiff. The next day, during the same term of court, a motion for a new trial was filed by W. T. Stevens, acting as attorney for the plaintiff, alleging, as grounds therefor, that the court was without jurisdiction over the plaintiff; that no service of process was had upon the cross-petition; that the judgment was rendered without notice and after the jury was discharged; alleging the usual grounds that the judgment was contrary to law, and to the evidence, etc.; and, further, that the defendant was guilty of fraud and deception in her testimony. This motion for a new trial was overruled, and the court adjourned April 6, 1903. The plaintiff was given 40 days to prepare a bill of exceptions. An application was made to the court to prepare a bill of exceptions within this time, but it appears that no notes of the evidence were taken at the trial and the plaintiff was unable to procure such bill.
The appellant contends that the default judgment was rendered without jurisdiction. The record shows an appearance by its attorneys at the time of the trial, and active participation therein by the agreement to waive a jury. It is alleged, however, that these allegations are untrue. Even if so, the duly authorized attorney for the appellant appeared in court the next day and filed a motion for a new trial, which motion was acted upon by the court, and exception taken. Having invoked the powers of the court to set aside the default judgment, the appellant thereby admitted its jurisdiction. It cannot consistently say that the court had no jurisdiction in the proceedings, and at the same time pray for the exercise of its powers for its own benefit. The appearance made by the attorney at this time gave jurisdiction as to the entire proceedings. Fisk v. Thorp, 60 Neb. 713, 84 N.W. 79.
Appellant's second contention is that there was no evidence to support the judgment. This point could properly have been raised upon error proceedings from the original judgment, and offers no reason for granting a new trial by a court of equity.
Appellant's third contention is that the plaintiff had an absolute right to depend upon the official reporter to take the evidence and, when called upon, to prepare a bill of exceptions. The evidence shows that W. T. Stevens, the attorney for the plaintiff, knew of the order made by the court giving the plaintiff leave to answer the cross-petition. The record shows that he was present at the time of the trial. It is true the petition alleges that this entry is incorrect and that no attorney was present, but we are compelled to accept the record as true in this proceeding. If any mistake was made by the clerk, the plaintiff should have applied to the court under the provisions of sections 602 et seq. of the code to have the same corrected so as to show the facts. It would establish an evil precedent if we should permit the records of the district court to be corrected by proceedings in equity to obtain a new trial. If the record could be contradicted in a proceeding of this nature, no faith could be placed in the verity and finality of judicial proceedings, until the time fixed by the statute of limitations to bring such actions had expired. The remedy provided by the statute for such corrections is ample and there is no reason why it should not be followed. If the plaintiff was present at the trial, the absence of the official reporter should have been called to the attention of the court, and, if an order for his attendance was refused, that fact should have been preserved in the record. We have held that a party is justified in relying upon the court reporter for a transcript of the oral proceedings at the trial, and that if, without fault on his part, such transcript cannot be furnished nor a...
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