Yankton, N. & S. W. Ry. Co. v. State

Citation68 N.W. 487,49 Neb. 272
PartiesYANKTON, N. & S. W. RY. CO. v. STATE ET AL.
Decision Date06 October 1896
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. A bill of exceptions must be certified by the clerk of the trial court as being a part of the record in said court, or as being the original bill of exceptions in the case, in order that the matters therein may be considered by this court. Wax v. State, 61 N. W. 117, 43 Neb. 18.

2. In order to review the question of taxation of costs, a motion to retax must be made in the trial court, and a ruling obtained thereon by that court. Real v. Honey, 58 N. W. 136, 39 Neb. 516.

3. Objections to the form and terms of a verdict should be made in the court below at the time of its rendition, in order to be available on error to this court. Roggenkamp v. Hargreaves, 58 N. W. 162, 39 Neb. 540.

Error to district court, Knox county; Jackson, Judge.

Action by the state of Nebraska and others against the Yankton, Norfolk & Southwestern Railway Company. Judgment for plaintiffs. Defendant brings error. Affirmed.E. A. Houston, for plaintiff in error.

A. A. Welch, W. D. Funk, and S. Draper, for defendants in error.

RAGAN, C.

This is a proceeding in error by the Yankton, Norfolk & Southwestern Railway Company against the state of Nebraska, to reverse a judgment of the district court of Knox county, pronounced against it in favor of the state, for damages sustained by the latter by reason of the appropriation by the railway company for railway purposes of certain of its lands in said county.

1. The first assignment of error relates to the action of the district court in the admission of certain testimony; but we are unable to review this assignment, for the reason that we have before us no bill of exceptions. There is in the record a paper purporting to be a bill of exceptions, but it is not certified by the clerk of the district court as being either the original bill of exceptions or a copy thereof. In Wax v. State, 43 Neb. 18, 61 N. W. 117, it was held that “a bill of exceptions must be certified by the clerk of the trial court as being a part of the record in said court, or as being the original bill of exceptions in the cause, in order that the matters therein may be considered by this court.” See, also, to the same effect, Aultman v. Patterson, 14 Neb. 57, 14 N. W. 804;Flynn v. Jordan, 17 Neb. 518, 23 N. W. 519;Hogan v. O'Niel, 17 Neb. 641, 24 N. W. 213.

2. The second assignment of error is that the court erred in taxing the costs of the action to the plaintiff in error. The judgment of the district court is in the usual form: That the plaintiff below have and recover of the defendant below a named sum, with costs, taxed at $_____. The record does not disclose what the costs were. So far as the record shows, the railroad company made no motion in the court below to retax these costs. If any reason existed why the party who recovered in the court below should not recover his costs, that fact should have been made to appear to the trial court, by motion to retax; and, if the railroad company was dissatisfied with the ruling of the court on that motion, it should have taken an exception to such ruling, and presented it here. In Real v. Honey, 39...

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