Walker v. Morse

• Decision Date: 04 January 1892
• Citation: 33 Neb. 650,50 N.W. 1055
• Parties: WALKER ET AL. v. MORSE ET AL.
• Court: Nebraska Supreme Court

33 Neb. 650

50 N.W. 1055

WALKER ET AL.

v.MORSE ET AL.

Supreme Court of Nebraska.

Jan. 4, 1892.

Syllabus by the Court.

1. A motion to quash a bill of exceptions, being a technical objection, must itself be free from fault; therefore, where the grounds assigned are “because the same [the bill] was not made and signed as required by law,” the motion should be overruled, unless there is a total want of some material requirement, such as the signature of the judge.

2. It is the duty of a party who asks relief by motion to specifically point out what he desires.

3. The statute allows the defeated party against whom an attachment has been sustained to have the attachment proceedings reviewed on error after the final judgment in the case is rendered.

Error to district court, Custer county; HAMER, Judge.

Action by Samuel P. Morse, William V. Morse, and Owen J. Lewis against Margaret Walker and Robert Walker to recover on a note. Judgment for plaintiffs. Defendants bring error. Reversed.Henry M. Kidder and Mason & Whedon, for plaintiffs in error.

Kirkpatrick & Holcomb, for defendants in error.

MAXWELL, J.

This action was brought in the county court by the defendants in error against the plaintiffs in error to recover the sum of $575. An attachment was issued against the property of the plaintiffs in error, who made a motion, supported by affidavits, to dissolve the same. This motion, on the hearing, was overruled, and the attachment sustained, and 20 days given the plaintiffs in error to prepare a bill of exceptions. The bill was prepared and signed by the judge, and filed in the district court, where, upon motion of the attorneys for the defendants in error, it was stricken from the files. Final judgment was rendered February 16, 1889, and the attachment thereupon sustained. The certificate of the county judge to the bill, the motion to dismiss, and his ruling thereon are as follows: “State of Nebraska, Custer county. I, John Reese, county judge of Custer county, Nebraska, do hereby certify that the foregoing is a true and correct copy of all the evidence filed and considered in the hearing on motion to discharge the attachment in said cause, and I hereby allow the foregoing bill of exceptions. Dated this 8th day of April, 1889. JOHN REESE, County Judge. [Seal.]” The transcript was filed April 8, 1889. The motion is as follows: “The defendants move the court to strike from the files of this cause the pretended bill of exceptions, for the...