Wabel v. Ross
| Decision Date | 18 October 1950 |
| Docket Number | No. 32812,32812 |
| Citation | 153 Neb. 236,44 N.W.2d 312 |
| Parties | WABEL v. ROSS. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A bill of exceptions in a case tried in district court must be authenticated by certificate of the clerk thereof to be considered in the Supreme Court.
2. This court will, on its own motion, refuse to consider a document appearing in the record and purporting to be a bill of exceptions when not authenticated as such by certificate of the clerk of the district court.
3. In the absence of a bill of exceptions, no question will be considered, a determination of which requires an examination of evidence produced at the trial.
4. In the absence of a bill of exceptions, it is presumed that an issue of fact raised by the pleadings was sustained by the evidence, that it was correctly determined, and if the pleadings are sufficient to support the judgment of the district court, it will be affirmed.
H. G. Wellensiek, Donald H. Weaver, Grand Island, for appellant.
Lloyd W. Kelly, W. G. Blackburn, Grand Island, for appellee.
Heard before SIMMONS C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This suit was to recover the amount of the balance, claimed by appellee to be due and unpaid, of the purchase price of a motor vehicle service station sold by him to appellant.
The claim of appellee was that the equipment was sold by him to appellant for $1,350.00 and the stock or merchandise was sold for its wholesale cost; that an inventory thereof was made on that basis and the purchase price thereby fixed at $2,115.21; and that the amount of the purchase price unpaid was $1,524.11. The appellant admitted that he bought the service station from appellee for the consideration of $1,350.00 for the equipment, but he asserted the stock or merchandise was sold to him for the sum of $700.00 and that the whole of the purchase price had been paid by him to appellee. The dispute is whether the stock or merchandise of the service station was sold for the wholesale cost to be determined by an inventory thereof, or whether the stock or merchandise was sold by appellee to appellant for the fixed sum of $700.00, the whole of which had been paid.
The trial resulted in a finding and judgment against appellant. His motion for a new trial was denied and he has appealed.
The assignments of error that the findings and judgment are contrary to law and that the district court erred in admitting the inventory in evidence, or either of them, were not referred to in the motion of the appellant for a new trial, and they cannot be considered in this court on appeal. Alleged errors of the district court in an action at law not referred to in the motion for new trial will not be considered by this court. Schwank v. County of Platte, 152 Neb. 273, 40 N.W.2d 863; Shipley v. McNeel, 149 Neb. 790, 32 N.W.2d 639; Hickman-Williams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813.
The assignments of error that the findings and judgment are not sustained by the evidence and that the district court erred in denying the motion of appellant for a new trial, or either of them, cannot be reviewed in this court except by an examination and consideration of the evidence received on the trial of the case.
There is no bill of exceptions. A transcript of the proceedings at the trial to constitute a bill of exceptions must be settled as provided by statute and 'filed with the papers in the case' in the office of the clerk of the district court where the case was brought and prosecuted. Section 25-1140.06, R.R.S.1943. If it is desired to use the original bill of exceptions in this court it is indispensable that it be authenticated by a certificate of the clerk of the district court. Section 25-1922, R.R.S.1943. It was many years ago determined, has since been frequently repeated, and quite recently reiterated that a bill of exceptions in a case tried in the district court must be authenticated by the certificate of the clerk of such court to entitle it to be...
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Worm v. Crowell
...to have the judgment rendered by the trial court affirmed because his pleadings are sufficient to support it, citing Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312, and Jones v. City of Chadron, 156 Neb. 150, 55 N.W.2d 495, 496, to that effect. As stated in Jones v. City of Chadron, supra: 'In ......
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Peterson v. George, 34587
...See, also, Palmer v. Capitol Life Ins. Co., supra. As stated in Palmer v. Capitol Life Ins. Co., supra, by quoting from Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312: 'In the absence of a bill of exceptions no question will be considered a determination of which requires an examination of the ......
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Hancock v. Parks
...to the assignments of error heretofore mentioned. See, also, Schwank v. County of Platte, 152 Neb. 273, 40 N.W.2d 863; Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312; J. R. Watkins Co. v. Sorenson, 166 Neb. 364, 88 N.W.2d Under the above authorities, the contention of the plaintiff is well take......
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Palmer v. Capitol Life Ins. Co. of Denver, Colo., 33407
...to this court in the manner which is indispensable to its consideration. There is no bill of exceptions. It was said in Wabel v. Ross, 153 Neb. 236, 44 N.W.2d 312, 314: 'In the absence of a bill of exceptions no question will be considered a determination of which requires an examination of......