Hoagland v. Etten

43 N.W. 422, 27 Neb. 705, 1889 Neb. LEXIS 283

• Court: Nebraska Supreme Court
• Decided: October 24, 1889
• Status: Published

Opinion

Per Curiam.

This cause is submitted upon a motion by appellant to strike from the record in this case certain pages of the bill of exceptions, which, it is claimed, are incorrect in fact and were inserted in the bill of exceptions after the same was signed by the judge of the district court. The motion is supported by an affidavit of the facts therein alleged.

The appellant also asks an order upon the appellee, requiring him to present to this court certain books of account, which, he alleges, were introduced in evidence on the trial in the district court, and which are not included in the bill of exceptions, it being alleged that they were omitted upon the express agreement of appellee that the books referred to would be presented to this court for inspection in connection with the bill of exceptions as certified to by the judge.

By the law of this state, the duty of settling bills of exceptions is imposed upon the judge of the district court before whom the cause was tried and the supreme court must accept the bill certified to as correct. This court, in the exercise of its appellate jurisdiction, can take no action looking toward a correction of bills of exceptions wherein mistakes of the kind referred to in the motion and affidavit are alleged to have occurred. That duty devolves upon the judge of the district court.

It having been shown by the affidavit referred to that the bill of exceptions is not as it was when signed by the judge of the district court, the appellant will be granted leave to withdraw the same in order that it may be submitted to said judge for inspection and correction, upon due notice being given to the appellee, and that said judge may certify the facts in regard to such exhibits as were not attached to the bill.

Judgment accordingly.

The other J udges concur.