Van Etten v. Test

CourtSupreme Court of Nebraska
Citation49 Neb. 725,68 N.W. 1023
Decision Date18 November 1896
PartiesVAN ETTEN v. TEST.

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.

[68 N.W. 1023]

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...

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17 practice notes
  • Quinton v. State, No. 24009.
    • United States
    • Supreme Court of Nebraska
    • 20 Noviembre 1924
    ...or at a subsequent term. Error was not thus committed. 15 C. J. 972, § 386; State v. Moran, 24 Neb. 103, 38 N. W. 29;Van Etten v. Test, 49 Neb. 725, 68 N. W. 1023;Central West Investment Co., v. Barker, 79 Neb. 47, 112 N. W. 291;Sutter v. State, 105 Neb. 144, 179 N. W. 414. [5] As to the th......
  • State v. Lucia V. (In re Interest of Luz P.), Nos. S-16-534 through S-16-538.
    • United States
    • Supreme Court of Nebraska
    • 10 Febrero 2017
    ...2016).8 See, State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009) ; Calloway v. Doty, 108 Neb. 319, 188 N.W. 104 (1922) ; Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023 (1896).9 46 Am. Jur. 2d Judgments § 130 at 487 (2006). See, also, 49 C.J.S. Judgments § 155 (2009).10 See id.11 Van Etten v. T......
  • Quinton v. State, 24009
    • United States
    • Supreme Court of Nebraska
    • 20 Noviembre 1924
    ...or at a subsequent term. Error was not thus committed. 15 C. J. 972, sec. 386; State v. Moran, 24 Neb. 103, 38 N.W. 29; Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023; Central West Investment Co. v. Barker, 79 Neb. 47, 112 N.W. 291; Sutter v. State, 105 Neb. 144, 179 N.W. 414. As to the third......
  • N. Loup River Pub. Power & Irrigation Dist. v. Loup River Pub. Power Dist. (In re N. Loup River Pub. Power & Irrigation Dist.), No. 32366.
    • United States
    • Supreme Court of Nebraska
    • 18 Junio 1948
    ...and upon a proper showing, is invested with the power to render nunc pro tunc such judgment or make such order.’ Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023, 1024. See, also, Hyde v. Michelson, 52 Neb. 680, 72 N.W. 1035,66 Am.St.Rep. 533;Gund & Co. v. Horrigan, 53 Neb. 794, 74 N.W. 257......
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17 cases
  • Quinton v. State, No. 24009.
    • United States
    • Supreme Court of Nebraska
    • 20 Noviembre 1924
    ...or at a subsequent term. Error was not thus committed. 15 C. J. 972, § 386; State v. Moran, 24 Neb. 103, 38 N. W. 29;Van Etten v. Test, 49 Neb. 725, 68 N. W. 1023;Central West Investment Co., v. Barker, 79 Neb. 47, 112 N. W. 291;Sutter v. State, 105 Neb. 144, 179 N. W. 414. [5] As to the th......
  • State v. Lucia V. (In re Interest of Luz P.), Nos. S-16-534 through S-16-538.
    • United States
    • Supreme Court of Nebraska
    • 10 Febrero 2017
    ...2016).8 See, State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009) ; Calloway v. Doty, 108 Neb. 319, 188 N.W. 104 (1922) ; Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023 (1896).9 46 Am. Jur. 2d Judgments § 130 at 487 (2006). See, also, 49 C.J.S. Judgments § 155 (2009).10 See id.11 Van Etten v. T......
  • Quinton v. State, 24009
    • United States
    • Supreme Court of Nebraska
    • 20 Noviembre 1924
    ...or at a subsequent term. Error was not thus committed. 15 C. J. 972, sec. 386; State v. Moran, 24 Neb. 103, 38 N.W. 29; Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023; Central West Investment Co. v. Barker, 79 Neb. 47, 112 N.W. 291; Sutter v. State, 105 Neb. 144, 179 N.W. 414. As to the third......
  • N. Loup River Pub. Power & Irrigation Dist. v. Loup River Pub. Power Dist. (In re N. Loup River Pub. Power & Irrigation Dist.), No. 32366.
    • United States
    • Supreme Court of Nebraska
    • 18 Junio 1948
    ...and upon a proper showing, is invested with the power to render nunc pro tunc such judgment or make such order.’ Van Etten v. Test, 49 Neb. 725, 68 N.W. 1023, 1024. See, also, Hyde v. Michelson, 52 Neb. 680, 72 N.W. 1035,66 Am.St.Rep. 533;Gund & Co. v. Horrigan, 53 Neb. 794, 74 N.W. 257......
  • Request a trial to view additional results

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