Zehr v. Miller

• Decision Date: 05 June 1894
• Parties: ZEHR, JUSTICE OF THE PEACE, v. MILLER.
• Court: Nebraska Supreme Court

40 Neb. 791

59 N.W. 384

ZEHR, JUSTICE OF THE PEACE,

v.MILLER.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

The rule is well established that this court will not review the judgment and proceedings of a district court on a petition in error unless a motion for a new trial was made in the district court, presenting the alleged errors for its consideration and determination.

Error to district court, Furnas county; Cochran, Judge.

Application of George C. Miller for mandamus against Peter Zehr, justice of the peace. Writ granted, and defendant brings error. Affirmed.Dudgeon & Dudgeon, for plaintiff in error.

D. T. Welty, for defendant in error.

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. 549, 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.