Vansyoc v. Freewater Cemetery Ass'n

• Decision Date: 04 December 1901
• Citation: 63 Neb. 143,88 N.W. 162
• Parties: VANSYOC v. FREEWATER CEMETERY ASS'N.
• Court: Nebraska Supreme Court

63 Neb. 143

88 N.W. 162

VANSYOC

v.FREEWATER CEMETERY ASS'N.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. Where a certificate of the clerk of the district court attached to the record certifies “that the above and foregoing is the original bill of exceptions, also a true and perfect transcript of the record in the above-entitled cause, as the same is on file and of record in my office,” it is a sufficient authentication.

2. A petition which alleges that defendant set out a fire on his premises, that it spread to plaintiff's premises, and damaged plaintiff, without an allegation of facts showing negligence on the part of defendant, does not state a cause of action.

3. The law does not presume negligence; he who relies upon the want of ordinary care as the basis of a cause of action must plead and prove it.

Commissioners' opinion. Department No. 1. Error to district court, Harlan county; Beall, Judge.

Action by the Freewater Cemetery Association against Harrison Vansyoc. Judgment for plaintiff. Defendant brings error. Reversed.

W. S. Morlan and C. M. Miller, for plaintiff in error.

E. C. Daily and R. L. Keester, for defendant in error.

DAY, C.

The Freewater Cemetery Association commenced this action in the district court of Harlan county against Harrison Vansyoc to recover damages alleged to have been sustained by it by reason of a fire which it is claimed defendant set out, and which it is charged spread upon and over the plaintiff's land, and damaged its property. The trial resulted in a verdict in favor of the plaintiff for $75, upon which judgment was subsequently rendered, to review which the defendant has brought error to this court.

It is insisted by the plaintiff that this court has no jurisdiction to determine the questions presented by the record, for the reason that the certificate of the clerk of the district court appended to the record does not certify that it contains a true copy of the pleadings, the motion for a new trial, and the judgment. In our opinion, this contention is not well founded. The certificate of the clerk, omitting formal parts, is as follows: “I, Geo. H. Carver, clerk of the district court in and for Harland county, Nebraska, do hereby certify that the above and foregoing is the original bill of exceptions, also a true and perfect transcript of the record in the above-entitled cause, as the same is on file and of record in my office.” It is not essential that the certificate of the clerk should describe the separate pleadings, the motion for a new trial, and the judgment separately. It is sufficient to give the court jurisdiction if the record shows the pleadings, motion for a new trial, and judgment, and the certificate recite that it is a “true and perfect transcript of the record in the above-entitled cause.” A certificate in this form, where the specific parts of the files or journal entries are not enumerated, is approved by Strawn in his work on Supreme Court Practice and Forms of Nebraska (page 127). In Herman v. Kneipp, 59 Neb. 208, 80 N. W. 816, this court held the following to be a sufficient certificate: “That the foregoing is a true and perfect transcript of the record in the above-entitled cause, except the bill of exceptions, which original bill is hereto attached.” In Hake v. Woolner, 55 Neb. 471, 75 N. W. 1087, the certificate is as follows: “I, M. S. Campbell, clerk of the district court within and for Otoe county, hereby certify the foregoing to be a true transcript of the record in the within-entitled cause,--petition, amended petition, stipulation, answer, amended reply, instructions asked by plaintiff refused, instructions asked by the defendant refused, instructions of the court, journal...