Zweibel v. Caldwell

• Decision Date: 18 May 1904
• Docket Number: 13,540
• Parties: PHILIP H. ZWEIBEL, APPELLEE, v. VICTOR B. CALDWELL ET AL., APPELLANTS. [*]
• Court: Nebraska Supreme Court

99 N.W. 843

72 Neb. 47

PHILIP H. ZWEIBEL, APPELLEE, v. VICTOR B. CALDWELL ET AL., APPELLANTS. ^[*]

No. 13,540

Supreme Court of Nebraska

May 18, 1904

APPEAL from the district court for Sarpy county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Hamilton & Maxwell, for appellants.

Baldrige & De Bord and G. M. Mullins, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

This is an appeal from a decree of the district court for Sarpy county entered on November 25, 1903, setting aside a judgment in ejectment of that court entered on November 2, 1901, and ordering a new trial. The findings of the trial court are that, after a trial by jury, the defendants recovered a judgment against the plaintiff here; that a motion for a new trial was filed and overruled; that Zweibel and his attorneys exercised due diligence to procure a transcript of the record in that case for the purpose of prosecuting error to the supreme court, and were unable, through no fault of theirs, to procure it within 6 months, and the procuring of the transcript was prevented through the inability of the clerk of the court to furnish it within the time, and that Zweibel having lost his right to a review on error was therefore entitled to a new trial in the ejectment action. The defendants requested a special finding as to the employment of H. Z. Wedgwood as attorney for them in the ejectment suit, and the court found that Wedgwood, as attorney for them in the ejectment suit, was employed to assist in the trial and for no other purpose, and within 4 days after was paid for his services, which terminated his employment. There is no general finding, and, upon the record, the original ejectment judgment stands as set aside for the reason that, because of the inability of the clerk to furnish the transcript within 6 months and the inability, without fault on their part, of Zweibel or his attorneys to get it, he is entitled to a new trial, and it is allowed him.

The defendants on their appeal say, in the first place, that the petition fails to state facts sufficient to constitute a cause of action. The basis of this claim is the fact that Zweibel's petition, filed in the district court for Sarpy county, did not allege any error in the ejectment action in which the judgment was rendered; that, consequently, there was no right shown to review it, and no prejudice in the failure of the clerk to prepare a transcript. The petition shows the beginning of an action to recover certain described premises; the filing of a general denial, and a trial before Judge Baker in the Sarpy county district court; a full hearing and a verdict, it being the second trial of the case; the filing of a motion within 3 days for a new trial, which motion is alleged to have set up certain errors of the court and irregularities at the trial; "that among the errors alleged was that the verdict was contrary to law; that the verdict was not sustained by the evidence, and that the court erred in giving each of the following instructions, to wit, 1, 2, 3, 4, 5, 6, 7, 8 and 9; said instructions being given by the court on its own motion, and it was alleged in said motion for a new trial that the trial court erred in refusing to give each of the instructions 3, 4 and 5 asked by the defendants;" that the motion was heard and overruled, and judgment entered in November, 1901; that a bill of exceptions was ordered and prepared, signed, settled and filed within the time allowed by law; a supersedeas bond was given, and a precipe for a transcript of the petition, answer and reply, of the orders of the court and instructions requested and given, of the order refusing instructions, of the motion for new trial, of the ruling of the court on it, and of the time of the court's adjournment, filed within 3 months of the judgment; and also that the clerk had been requested a number of times, both previously and subsequently, to prepare a transcript; that the files and records were not within the control of the plaintiff, and there was no complete record; that the instructions of the court were partly typewritten and partly hand written, and could not be reproduced; that plaintiff was informed by the court's stenographer that there was no copy of the instructions in existence; that frequent demands by Zweibel and his counsel were unavailing, because the clerk could not make the transcript; that plaintiff used all possible diligence, but failed to obtain his transcript, and without fault on his part, was deprived of his appeal from said judgment to the supreme court. It is alleged that, after the time for filing the appeal had gone by, counsel for the defendants returned to the clerk the instructions of the court and some of the other files; that repeated demands had been made upon defendants' counsel for such files within the proper time, and defendants' counsel had kept the instructions and denied knowledge of their existence, and by reason of such action the clerk was unable to obtain the files, and plaintiff unable to secure his transcript.

The only allegation of any error in the ejectment proceedings is the implied one embraced in the allegation that such error was set up in the motion for a new trial. There is no direct allegation in the petition that there was any good ground for a reversal. If the petition is to be sustained, it must be on the ground that the right to review is, in the state of Nebraska, a constitutional one, guaranteed to a party in every instance, and does not depend for its existence upon there being error in the record. A demurrer was filed to this petition and was overruled. Defendants then answered, admitting the pleadings, the...