Williams v. Miles

• Decision Date: 18 September 1901
• Citation: 87 N.W. 315,62 Neb. 566
• Parties: WILLIAMS ET AL. v. MILES ET AL.
• Court: Nebraska Supreme Court

62 Neb. 566

87 N.W. 315

WILLIAMS ET AL.

v.MILES ET AL.

Supreme Court of Nebraska.

Sept. 18, 1901.

Syllabus by the Court.

1. Where a proposed bill of exceptions is submitted to opposing attorneys for examination and suggestions of amendments, who, after examination, return the bill indorsed thereon, “We consent this bill of exceptions be allowed and signed,” and afterwards enter into a stipulation that the clerk of the district court may settle and allow the bill of exceptions in the case, in which stipulation it is agreed that no amendments will be suggested by the parties seeking to have the proposed bill allowed, held, that the two stipulations, when construed together, are equivalent to an agreement that the bill of exceptions proposed was true and correct, and that the clerk was authorized to sign and allow the same, under the provisions of section 311, Code Civ. Proc.

2. The statute relating to bills of exceptions, being remedial in its nature, will be liberally construed. Morehead v. Adams, 26 N. W. 242, 18 Neb. 569.

Appeal from district court, Richardson county; Thompson, Judge.

Action by Joseph Williams and others against Joseph H. Miles and others. From the judgment, plaintiffs and certain of the defendants appeal. Motion to quash bill of exceptions.J. H. Broady, A. J. Weaver, and John L. Webster, for appellants.

Francis Martin, E. Falloon, and C. Gillespie, for appellees.

HOLCOMB, J.

This action is brought to this court by appeal from the district court of Richardson county. A motion is presented to quash the bill of exceptions filed in the case, which was settled and allowed by the clerk of the trial court for three reasons: (1) “The clerk of the district court had no authority to settle and sign said bill, as appellees had not agreed that said bill is correct;” (2) “that said bill is not settled and signed by the trial judge;” (3) “that, while there is a stipulation now attached to said bill permitting the clerk to sign and allow it, said stipulation was not so attached when signed by attorneys for appellees, nor does said stipulation show that the parties to this action had agreed upon said bill.” It is argued on behalf of counsel presenting the motion that the stipulation is insufficient to authorize the clerk to sign and allow the bill, because it does not appear that the parties to the action had stipulated that the bill of exceptions allowed by the clerk was agreed upon as correct; that, while there was a stipulation that the clerk might settle and allow the bill, the parties interested had not agreed upon the bill allowed, and therefore the clerk was without authority to act; and that the motion to quash should be sustained under the rule announced in Scott v. Spencer, 42 Neb. 632, 60 N. W. 892, wherein it is held that: “To confer authority upon the clerk of a district court to sign and allow a bill of exceptions, it must appear that * * * the parties to the litigation or their counsel must agree upon the bill of exceptions, and attach thereto their written stipulation to that effect;” and that “the mere stipulation of counsel in a case that the clerk of the court may sign and allow a bill of exceptions is not sufficient to confer authority upon him to do so.” Section 311 of the Code of Civil Procedure, relating to the allowance of bills of exceptions, among other things provides that: “In cases where the parties interested shall agree upon the bill of exceptions (and shall have attached a written stipulation to that effect to the bill) it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do; and it shall thereupon be filed with the papers in the case and have the same force and...