Zehr v. Miller

• Decision Date: 05 June 1894
• Docket Number: 4762
• Parties: PETER ZEHR v. GEORGE C. MILLER
• Court: Nebraska Supreme Court

59 N.W. 384

40 Neb. 791

PETER ZEHR v. GEORGE C. MILLER

No. 4762

Supreme Court of Nebraska

June 5, 1894

ERROR from the district court of Furnas county. Tried below before COCHRAN, J.

AFFIRMED.

Dudgeon & Dudgeon, for plaintiff in error.

D. T. Welty, contra.

OPINION

HARRISON, J.

On the 16th day of March, 1891, the defendant in error filed a petition in the district court of Furnas county and commenced an action against the plaintiff in error, Peter Zehr, a justice of the peace of Burton's Bend precinct, in said county, the object and purpose of which was to obtain a writ of mandamus to issue to plaintiff in error, commanding him to act in the approval of an appeal bond in a case which had been determined before him adversely to the defendant in error. Plaintiff in error answered, issues were joined, and a trial to the judge of the district court resulted in a finding in favor of the relator and an order for the issuance of the writ. To reverse such finding and judgment the respondent Zehr prosecutes a petition in error to this court. There are several assignments of error in the petition, but an examination of the bill of exceptions and record discloses that the plaintiff in error did not file any motion for a new trial in the district court, and, in accordance with the well established rule of this court, that where a party fails to move for a new trial in the court below, he cannot raise a question on error to this court. The errors, if any committed, are not properly before this court and cannot be reviewed. (See Seeley v. Smith, 29 Neb. 545, 45 N.W. 922; Manning v. Cunningham, 21 Neb. 288, 31 N.W. 933; Becker v. Simonds, 33 Neb. 680, 50 N.W. 1129; Fitzgerald v. Brandt, 36 Neb. 683, 54 N.W. 992; Gray v. Disbrow, 36 Neb. 857, 55 N.W. 255; Smith v. Spaulding, 34 Neb. 128, 51 N.W. 469; Withnell v. City of Omaha, 37 Neb. 621, 56 N.W. 381.) The judgment of the district court must be

AFFIRMED.