Veneman v. McCurtain

• Decision Date: 04 January 1892
• Citation: 33 Neb. 643,50 N.W. 955
• Parties: VENEMAN v. MCCURTAIN.
• Court: Nebraska Supreme Court

33 Neb. 643

50 N.W. 955

VENEMAN

v.MCCURTAIN.

Supreme Court of Nebraska.

Jan. 4, 1892.

Syllabus by the Court.

1. Affidavits used on the hearing of a motion in the district court must be preserved in a bill of exceptions to be available in the supreme court.

2. While a jury was deliberating upon a verdict one of the jurors handed a person outside of a window 25 cents, with the request that he would procure apples for the jury. The bystander thus addressed took the money, purchased apples, and, on his own account, also a quantity of cigars, and passed them in to the jury, with the remark “that these were * * * cigars,” giving the name of the defendant in the action, but immediately thereafter adding the name of the plaintiff, saying that the jury might consider them from either. Held, that the verdict be set aside; that the court would not permit a jury to be tampered with in this manner; and that prejudice would be presumed. Held, also, that, upon the attention of the trial court being called to this infraction of duty by a bystander, the offender should have been severely punished for contempt.

3. All instructions which are proper to be given to the jury should be read by the court, and, if it was clearly shown that instructions asked on behalf of a party had been handed to the jury without reading, thus placing them under a cloud, the verdict against such party would be set aside.

Error to district court, Phelps county; GASLIN, Judge.

Action by Laura Veneman against Addison McCurtain to recover damages for the breach of a contract to marry. Verdict and judgment for defendant. Plaintiff brings error. Reversed.James I. Rhea, for plaintiff in error.

Hall & Patrick and S. A. Dravo, for defendant in error.

MAXWELL, J.

This action was brought by the plaintiff against the defendant for breach of promise of marriage, and on the trial the jury returned a verdict for the defendant, whereupon the court overruled a motion for a new trial, and dismissed the action. A motion is now made to strike certain affidavits from the record, because irregularly therein. No doubt by this is meant that such affidavits are not included in the bill of exceptions. On examining the transcript, we find that such is the case, and the motion, although not in proper form, will be sustained. This court has many times held that affidavits or other evidence used on the hearing of a motion in the district court must be preserved in a bill of exceptions to be available in the supreme court.

A number of affidavits are preserved in the bill of exceptions from which it appears that while the jury were deliberating on a verdict one of the jurors handed a...