Vansyoc v. Freewater Cemetery Association

• Decision Date: 04 December 1901
• Docket Number: 10,700
• Citation: 88 N.W. 162,63 Neb. 143
• Parties: HARRISON VANSYOC v. FREEWATER CEMETERY ASSOCIATION
• Court: Nebraska Supreme Court

88 N.W. 162

63 Neb. 143

HARRISON VANSYOC v. FREEWATER CEMETERY ASSOCIATION

No. 10,700

Supreme Court of Nebraska

December 4, 1901

ERROR from the district court for Harlan county. Tried below before BEALL, J. Reversed.

REVERSED AND REMANDED.

Webster S. Morlan and C. L. Miller, for plaintiff in error.

R. L Keester and E. C. Dailey, contra.

DAY, C HASTINGS and KIRKPATRICK, CC. concur.

OPINION

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, George H. Cleaver, clerk of the district court in and for Harlan county, Nebraska, do hereby certify that the above and foregoing is the original bill of exceptions and 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, pp. 127, 128. 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 entries, and bond, as the same appear on file and of record in my office." The court commenting on the certificate said, "This is a proper authentication merely of the matters specifically enumerated in the certificate, of which the motion for a new trial is not one. The authentication would have been complete and...