Winkler v. Roeder

• Decision Date: 28 March 1888
• Citation: 37 N.W. 607,23 Neb. 706
• Parties: HENRY WINKLER ET AL., PLAINTIFFS IN ERROR, v. SIMON ROEDER, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

37 N.W. 607

23 Neb. 706

HENRY WINKLER ET AL., PLAINTIFFS IN ERROR, v. SIMON ROEDER, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 28, 1888

ERROR to the district court for Adams county. Tried below before MORRIS, J.

Dilworth Smith & Dilworth, for plaintiffs in error, cited: Dow v Updike, 11 Neb. 97. Hardy v. Miller, 11 Id 399. Otoe County v. Brown, 16 Id., 398.

A. H Bowen and J. B. Cessna, for defendant in error, cited: 1 Sutherland Damages, 71, 727-738. Boldt v. Budwig, 19 Neb. 739. Brown v. Evans, 17 F. 917. Smith v. R. R., 23 Ohio St. 10. Marshall v. Betner, 17 Ala. 838. Kittle v. DeLamater, 7 Neb. 70. Raymond Bros. v. Green, 12 Id., 215.

OPINION

MAXWELL, J.

The defendant in error brought an action in the district court of Adams county against the plaintiffs, and alleges in his petition, "That on the 9th day of November, 1883, in the night time, between the hours of 10 and 11 o'clock of said night, the said defendants broke into the dwelling-house of said plaintiff, and then and there made an assault upon the plaintiff, and did then and there him, the said plaintiff, beat, wound, whip, choke, and ill-treat, by striking said plaintiff on the head and face with a large stick of wood, and by whipping said plaintiff with a carriage whip, on the body of said plaintiff, and by choking him, and by smearing the naked body of plaintiff with tar, whereby plaintiff was bruised, wounded, and made sick, whereby he was unable to attend to business for a period of one year, and that by reason of said assault, beating, wounding, and ill-treatment as aforesaid, said plaintiff has sustained permanent injury by being permanently disabled from performing the usual labor of said plaintiff, and plaintiff alleges that he has sustained damages, by reason of said assault, beating, wounding, ill-treatment, in the sum of five thousand dollars, for which he prays judgment, with reasonable attorneys' fees."

The plaintiffs in error (defendants below) filed an answer, denying all the facts stated in the petition. On the trial of the cause the jury returned a verdict as follows:

"We, the jury in this case, being duly impaneled and sworn, do find and say that we find for the plaintiff, and assess the amount the said plaintiff is entitled to receive of and from said defendants, Henry Winkler, Oscar Winkler, John Blevenicht, and Frederick Young, at $ 1,000, and $ 200 attorneys' fees."

A motion for a new trial was duly made and overruled, and judgment entered on the verdict.

Before proceeding to the consideration of the issues involved in this case, we desire to call attention to the condition of the record. The action was commenced in November, 1884, and the trial had in June, 1887, a number of terms of the district court having intervened between the commencement of the action and the time of trial. No objection is made to the summons, nor could there be, as the plaintiffs in error made a general appearance by filing an answer, yet we have a copy of the summons set out in the transcript, and the several returns of the officer thereon. Neither was any objection made to the several continuances of the case in the district court, but they are set out at length in the record. This matter covers eleven pages, and is entirely needless and should be taxed to the party at fault. In a number of cases this court has held, that immaterial matter, like a copy of a summons, the returns on the same, when no objection is made to the returns or the summons, should be omitted from the transcript. So with a motion, demurrer, or other pleading not relied upon; they should be omitted, as they merely cumber the record. If objection should be made in this court to the omission of any pleading from the transcript, and the proper suggestion filed, the clerk of the district court will be required to certify the pleading omitted. But where unnecessary matters are inserted in the transcript, the costs of the same will be taxed to the party at fault, if the proper motion is made therefor.

The principal errors relied upon in this case are: 1st, That the evidence is not sufficient to sustain the verdict. The testimony tends to show that the plaintiffs in error and others went, at the time stated in the petition, to the house of the defendant in error, and stripped him, inflicted many blows upon his person, and covered him with tar. Upon this point there is practically no dispute in the testimony....