Yates v. Kinney

• Decision Date: 20 March 1888
• Parties: YATES v. KINNEY.
• Court: Nebraska Supreme Court

23 Neb. 648

37 N.W. 590

YATES

v.KINNEY.

Supreme Court of Nebraska.

March 20, 1888.

Syllabus by the Court.

Objections to matters of form in a bill of exceptions, by which it is sought to quash the bill, must be made within a reasonable time after the bill is filed in the appellate court; and where not made for more than a year after the filing of the transcript, and after the case is set for trial, and the plaintiff has prepared and printed his briefs on the main issues, such objections will be deemed to be waived.

Where an original bill of exceptions is sent by the clerk of the district court to the supreme court, it is his duty to certify the same; but this objection may be waived by the parties, and will be deemed to be waived where the bill is treated by the adverse party as perfect, either by affirmative acts, or long acquiescence.

The act of 1875 relating to instructions to juries requires all instructions to be in writing, and filed with the clerk before being given to the jury, unless the writing is waived, etc. Even if delivered orally, the statutes seem to require them to be reduced to writing, and filed with the clerk, before the case is finally submitted, in order that exceptions may be taken by either party if desired, and that the jury may have the benefit of such instructions in considering their verdict.

Where instructions were delivered orally, and reduced to writing by the stenographic reporter, and inserted in the bill of exceptions, but not certified by the judge, held, that a motion to strike them out of a bill would be sustained.

Error to district court, Fillmore county; MORRIS, Judge.

Motion to quash bill of exceptions.O. P. Mason and C. E. Magoon, for plaintiff in error.

J. P. Maule, for defendant in error.

MAXWELL, J.

This is a motion to quash the bill of exceptions in this case for the following reasons: “(1) At the time the attorney for the plaintiff in error presented the said bill of exceptions to the attorney of the defendant in error, there was not attached thereto the motion for an extension of time within which to submit the same, nor the affidavit in support of the motion, nor the order of the court granting said extension; and neither the defendant in error, nor his attorney, knew of said extension, and were not informed of the same; and they had no notice of the presentation of the bill to the judge for settlement and his signature,--all of which appears by the record, and the affidavit of John P. Maule hereto attached. (2) The bill was not presented to the judge, nor signed by him, within the time required by law. (3) The judge being absent, the bill should have been settled by the clerk of the districtcourt of Fillmore county. (4) The bill is not certified to by the clerk of said court as being a copy of the original bill, neither is it certified to as being the original bill; in fact there is no certificate in the record by the clerk about a bill of exceptions.”

The transcript and bill of exceptions were filed in this court, February 11, 1887, and this motion was filed on February 21, 1888,--more than one year after the filing of the case. In a number of cases decided by this court it has been held that objections to a bill of exceptions must be made at the earliest opportunity, otherwise they will be waived. In this state, where all the oral proceedings in the district courts are taken down by short-hand reporters, and bills of exceptions prepared from such stenographic reports, the probabilities are that bills of exceptions thus prepared will be substantially correct. Indeed, in a majority of the cases brought into this court but trifling amendments have been made to the bills thus prepared by such reporters. All presumptions, therefore, are in favor of a bill of exceptions duly signed by the judge. Where, however, a party intends to raise objections to some matter of form connected with the preparation of the bill, he should file his objection within a reasonable time, and before the adverse party has been permitted to incur the expense of preparing and printing a brief relating to the merits of the controversy. Good faith requires this, and that objections to the form of the bill not thus raised shall be considered as waived.

The objections to the preparations and signing of the bill, not having been made until more than a year from the date of filing the transcript in this court, and after the case was set down for hearing, and the plaintiff in error had prepared and printed his briefs, come too late, and are therefore waived. In a number of cases this court has held that, where the original bill of exceptions is used in the supreme court, it must be certified by the clerk of the district court. Flynn v. Jordan, 17 Neb. 520, 23 N. W. Rep. 519;Hogan v. O'Niel, 17 Neb. 642, 24 N. W. Rep. 213;Aultman v. Patterson, 14 Neb. 57, 14 N. W. Rep. 804. This provision, however, may be waived by the parties either by acts that recognize the validity of the bill, or by great delay in raising the objections, and a delay of a year in raising the objections would seem to be such waiver. The objections, therefore, come too late, and must be overruled.

The defendant moves to strike out of the bill of exceptions the “matter contained on pages 17-19, the same purporting to be the instructions of the court, for the following reasons: (1) There is no certificate of the reporter that the same are the instructions of the court; (2) there is no certificate of the judge that the same are the instructions of the court, and they are not ordered to be made part of the record in this case.” The certificate of the judge is as follows:

“ State of Nebraska, Fillmore county: I hereby certify that the above contains all the evidence and testimony offered or produced by either party to this action, together with the objections made to the introduction thereof, the rulings of the court thereon, and the exceptions thereto, and that the same is contained in foregoing printed pages numbered from 2 to 29 inclusive, and on request of defendant, same is directed to be made a part of the record herein. And I further certify same was received at...