Van Etten v. Test

• Decision Date: 18 November 1896
• Citation: 49 Neb. 725,68 N.W. 1023
• Parties: VAN ETTEN v. TEST.
• Court: Nebraska Supreme Court

49 Neb. 725

68 N.W. 1023

VAN ETTEN

v.TEST.

Supreme Court of Nebraska.

Nov. 18, 1896.

Syllabus by the Court.

1. When a bill of exceptions has been quashed, this court will conclusively presume that evidence was introduced on the trial which sustained the judgment rendered.

2. The authority of courts, both of law and equity, to enter a judgment or decree nunc pro tunc, does not depend upon statute. It is an inherent power lodged in the courts.

3. If a judgment in fact was rendered, if an order in fact was made, and such judgment or order not recorded, then the court, at any time afterwards, in a proper proceeding, and upon a proper showing, is invested with the power to render nunc pro tunc such judgment or make such order.

4. Eleven months after overruling a motion for a new trial, the court, on motion, entered judgment nunc pro tunc on the verdict. The motion was resisted, and a bill of exceptions settled. The judge certified that the bill of exceptions consisted of 14 pages, numbered from 1 to 14, both inclusive. He did not certify that it contained any of the evidence used on hearing of the motion. From the bill of exceptions brought here, the first 8 pages were missing. Held: (1) That such bill of exceptions would not be considered for any purpose; (2) that the supreme court would presume that the district court, on the hearing of said motion, had before it evidence showing that a judgment had in fact been rendered or ordered at the time the motion for a new trial was overruled.

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

Action by Emma L. Van Etten against Edward F. Test. From a judgment of dismissal, plaintiff brings error. Affirmed.D. Van Etten, for plaintiff in error.

I. R. Andrews, for defendant in error.

RAGAN, C.

This is an action in ejectment, brought to the district court of Douglas county, by Emma L. Van Etten against Edward F. Test. From a judgment dismissing Mrs. Van Etten's petition, she prosecutes to this court a petition in error.

1. The bill of exceptions preserving the evidence given on the trial has been quashed. We must therefore conclusively presume that the evidence sustained all the defenses interposed to the action. The pleadings support the judgment rendered.

2. The trial occurred in May, 1892. The jury returned a verdict in favor of the defendant in error, and plaintiff in error filed a motion for a new trial. This motion was overruled on the 28th of that month, and, for some reason not disclosed by the record, the judgment dismissing Mrs. Van Etten's action was not at that time entered. Subsequently, in April, 1893, on motion of the defendant in error, the district court entered a judgment on the verdict of the jury nunc pro tunc, dismissing Mrs. Van Etten's petition. It is now insisted that the court was without jurisdiction to make this order. We do not know whether the court, on overruling the motion of Mrs. Van Etten for a new trial, made a minute on its docket that judgment should be entered on the journal dismissing the action, or whether the court announced orally that such a judgment would be entered. For aught the record shows, the failure to enter the judgment may have been the neglect of the clerk of the court, or a failure of the judge to make or announce an order in the premises. But in this action, after the motion for a new trial had been overruled, there was nothing left for the court to do but to enter judgment on the jury's verdict, dismissing the action; and it was its duty to do so. And since the court, at a subsequent term, entered the judgment nunc pro tunc, we must presume that this nunc pro tunc order was made for the purpose of having the records of the court speak the truth; that is, show what actually occurred on the 28th of May, 1892. There is nothing in the argument of plaintiff in error that the court was without jurisdiction or authority to enter this judgment nunc pro tunc. The authority of courts, both of law and equity, to enter a judgment or decree nunc pro tunc in a proper case, and in furtherance of justice, is one that does not depend upon statute; it is an...