Walter A. Wood Mowing & Reaping Mach. Co. v. Gerhold

Decision Date04 March 1896
Citation66 N.W. 538,47 Neb. 397
CourtNebraska Supreme Court
PartiesWALTER A. WOOD MOWING & REAPING MACH. CO. v. GERHOLD.
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. A bill of exceptions in a cause tried in the district court must be filed with the clerk of that court, and, if the original bill is to be used in the supreme court, it must be authenticated by the certificate of the clerk of the trial court.

2. Assignments of a petition in error which can be reviewed only in connection with a bill of exceptions will be disregarded where no authentic bill is contained in the record.

3. The petition in error presenting no question of law or fact for review, the judgment is affirmed.

Error to district court, Platte county; Sullivan, Judge.

Action by the Walter A. Wood Mowing & Reaping Machine Company against William Gerhold. Judgment for defendant. Plaintiff brings error. Affirmed.McAllister & Cornelius, for plaintiff in error.

Higgins & Garlow, for defendant in error.

NORVAL, J.

This suit was upon a promissory note executed by the defendant in error as part consideration for one of plaintiff's harvesting machines. The defense interposed was breach of warranty of the machine. From a verdict and judgment thereon in favor of the defendant, the plaintiff prosecutes error. There is attached to the transcript a document purporting to be the bill of exceptions in the case, but it does not appear to have ever been filed with, nor is it in any manner authenticated by, the clerk of the district court; hence it must be disregarded by us. Aultman v. Patterson, 14 Neb. 58, 15 N. W. 350;Hogan v. O'Niel, 17 Neb. 641, 24 N. W. 213;Flynn v. Jordan, 17 Neb. 518, 23 N. W. 519;Wax v. State, 43 Neb. 18, 61 N. W. 117;Romberg v. Fokken, 47 Neb. 198, 66 N. W. 282; Railway Co. v. Kinney, 47 Neb. 393, 66 N. W. 449.

The petition in error contained six assignments, but two of which--the verdict is contrary to the evidence, errors in the admission of testimony--are argued in the brief. The other assignments are deemed waived. Glaze v. Parcel, 40 Neb. 732, 59 N. W. 382;Erck v. Bank, 43 Neb. 613, 62 N. W. 67; City of Kearney v. Smith, 47 Neb., ubi supra.

Neither of the assignments discussed in the brief can be reviewed, except in connection with a bill of exceptions preserving the evidence adduced, and the rulings of the court below during the trial. As there is no authentic bill of exceptions in this record, the assignment of errors must be overruled, and the judgment affirmed. State Ins....

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8 cases
  • Redell v. Moores
    • United States
    • Nebraska Supreme Court
    • December 4, 1901
    ...62 N. W. 1081;Erck v. Bank, 43 Neb. 613, 62 N. W. 67;Johnson v. Gulick, 46 Neb. 817, 65 N. W. 883, 50 Am. St. Rep. 629;Machine Co. v. Gerbold, 47 Neb. 397, 66 N. W. 538. The opinion of the majority establishes a bad precedent, in deciding a question not raised or argued by ...
  • Redell v. Moores
    • United States
    • Nebraska Supreme Court
    • December 4, 1901
    ... ... Gulick, 46 Neb. 817, 65 N.W. 883; Wood ... Gulick, 46 Neb. 817, 65 N.W. 883; Wood Mowing ... 817, 65 N.W. 883; Wood Mowing & Reaping ... v. Gerhold ... ...
  • Bednar v. Bednar
    • United States
    • Nebraska Supreme Court
    • January 18, 1946
    ... ... Dietrich, ... 48 Neb. 433, 67 N.W. 181; [Wood] v. Gerhold, 47 Neb. 397, 66 ... N.W. 538.' Home ... ...
  • Reuther v. Zimbleman
    • United States
    • Nebraska Supreme Court
    • January 7, 1897
    ...47 Neb. 38, 66 N.W. 39; Childerson v. Childerson, 47 Neb. 162, 66 N.W. 281; Romberg v. Fokken, 47 Neb. 198, 66 N.W. 282; Wood v. Gerhold, 47 Neb. 397, 66 N.W. 538; Andres v. Kridler, 47 Neb. 585, 66 N.W. Sieberling v. Fletcher, 47 Neb. 847, 66 N.W. 839.) The next assignment is predicated up......
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