Chicago, Burlington & Quincy Railroad v. Cass County

70 N.W. 955, 51 Neb. 369, 1897 Neb. LEXIS 295
CourtNebraska Supreme Court
DecidedApril 21, 1897
DocketNo. 8923
StatusPublished
Cited by18 cases

This text of 70 N.W. 955 (Chicago, Burlington & Quincy Railroad v. Cass County) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chicago, Burlington & Quincy Railroad v. Cass County, 70 N.W. 955, 51 Neb. 369, 1897 Neb. LEXIS 295 (Neb. 1897).

Opinion

Ragan, C.

In the district court of Cass county the Chicago, Burlington & Quincy Railroad Company (hereinafter called the “railroad company”) brought this suit against said county, the county treasurer, school district No. 2, and Plattsmouth precinct thereof to enjoin the collection of certain taxes levied for school purposes by said school district No. 2 against the west half of the railroad company’s bridge across the Missouri river, basing its right to the injunction upon the contention that no part of the w;est half of said bridge was within the limits of said school district. The district court dismissed the railroad company’s petition, and it brings the decree here for review. The connection of the county.and the county treasurer thereof with the case is unimportant, so far as this opinion goes, and in what we have to say no reference will be made to Plattsmouth precinct, as the rights of all the parties will be determined by the decision of [372]*372the question as to whether any part of the west half of the railroad company’s bridge is in said school district No. 2.

1. The defendants below contend that the case is here on error, while the railroad company insists that it is here on appeal. It appears that upon the rendition of the decree by the district court the railroad company filed a motion for a new trial, and upon this being overruled took an exception to such ruling. Within six months' after the daté of the rendition of the decree the railroad company filed in this court a certified transcript of the proceedings in the case; that thereupon a summons in error was issued by the clerk of this court and served upon the defendants below. The record does not contain this summons in error, but it is admitted by counsel here that it was issued and served; nor does the record disclose that this summons in error was issued in pursuance of a written prtccipe filed therefor by the railroad "company as provided by section 585 of the Code. But since the clerk of this court would have had no authority to issue a summons in error without such written prcecipe therefor having been filed, we will presume that such prcecipe was filed. Within a year from the date of the rendition of the decree below the railroad company filed with the clerk of this court a paper which is substantially a petition in error, although denominhted “assignments of error on appeal.” In Beatrice Paper Co. v. Beloit Iron Works, 46 Neb., 900, it was said: “If the judgment which the litigant seeks to have reviewed is appealable, he may have it reviewed on appeal or error, at his election; and he may make such election at any time before the final submission of the case in this court. He may dismiss his appeal and stand on his petition in error or vice versa; but if he makes ho such election this court will review the judgment of the district court on error [only] when there is filed with the transcript [here] a petition in error.” To the same effect see Shaw v. Robinson, 50 Neb., 403; Woodard v. Baird, 43 Neb., 310; Monroe v. Reid, 46 Neb., [373]*373316. Since the railroad company made no application to this court before the submission of this case to withdraw or dismiss its petition in error and stand upon its appeal, and taking into consideration its other conduct in the premises, we think the railroad company must be held to have elected to have this case tried in this court on error.

2. The defendants in error insist that the decree of the district court must be affirmed without an examination of the assignments of error in the petition in error because it is not specifically alleged by the railroad company in its petition in error that the district court erred in overruling its motion for a new trial. To sustain this contention we are cited, among others, to Carson v. Funk, 27 Kan., 524. ' In that case the petition in error did not aver that the court below erred in overruling the plaintiff in error’s motion for a new trial; but the petition in error did aver that “there were errors of law occurring at the trial of the case;” and the court held that, since the action of the court in overruling the motion for a new trial was not assigned as error, under the assignments in the petition in error, “there were errors of law occurring at the trial,” the supreme court should not review the action of the district court in admitting and rejecting evidence or.in giving and refusing to give instructions. The case does not support the contention of the defendants in error. Section 314 of the Code of Civil Procedure specifies the causes for which a new trial may be granted on motion of the defeated party. Section 317 of the Code provides that in assigning the grounds in a motion for a new trial it shall be sufficient to assign the same in the language of the statute. We do not understand this section of the Code to be mandatory, and though the grounds of a motion for a new trial are not stated in the exact language of the statute, if they are in substance the same the statute is satisfied, and where the grounds, of a-motion for a new trial are in substance those prescribed by section 314 of the Code, and the assignments [374]*374in the petition in error are based upon those grounds, we do not think this court is deprived of jurisdiction to review the case on error simply because the plaintiff in error does not specifically allege that the court below erred in overruling the motion for a new trial.

3. The issues made by the pleadings in the case at bar were: (1.) Whether any part of the west half of the railroad company’s bridge was in said school district No. 2. This was an issue of fact. (2.) Whether the railroad company, by voluntarily listing the west half of the bridge for taxation by the school district in the year 1895, and prior years, had estopped itself from resisting the collection of the taxes levied for 1895. The undisputed evidence shows that the railroad company did list the west half of its bridge for taxation by the school district for the year 1895 and prior years. There remains, then, of these the issue of law, whether the railroad, because of its conduct in the premises, is estopped from resisting the collection of the taxes in suit. The third issue made by the pleadings was also one of law, viz., whether the remedy of the railroad company, if it had any, was limited to quo warranto proceedings. The court found generally against the railroad company, and specially that the west half of the railroad company’s bridge was situate in said school district No. 2. The petition in error alleges that the court erred in finding that the west half of the bridge was situate in said school district No. 2; that such finding was not sustained by sufficient evidence; that the court erred in entering the decree it did because such decree was contrary to law. In its motion for a new trial the railroad company alleged that the court erred in finding that the west half of its bridge was situate in said school district No. 2; that its finding in that respect was not sustained by sufficient evidence; that the court erred in rendering the decree it did because such decree was contrary to law. The defendants in error now insist that this decree must be affirmed without an examination of the assignments of error in the petition in [375]*375error because these assignments are not based on grounds specified in the motion for a new trial.

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Bluebook (online)
70 N.W. 955, 51 Neb. 369, 1897 Neb. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-burlington-quincy-railroad-v-cass-county-neb-1897.