Scott v. Spencer

60 N.W. 892, 42 Neb. 632, 1894 Neb. LEXIS 454

• Court: Nebraska Supreme Court
• Decided: November 8, 1894
• Docket: No. 5943
• Status: Published

Opinion

Ragan, C.

This is an appeal from a decree in equity pronounced by the district court of Buffalo county. The bill of exceptions in the case was signed and allowed by the clerk of the district court. There is no showing in the record that the judge of the district court was dead, or that he was prevented by sickness, or absence from his district, from signing and allowing this, bill of exceptions. Counsel for the respective parties to the litigation made and filed in the case a stipulation in words and figures as follows: “ It is hereby stipulated and agreed by and between the parties hereto that the bill of exceptions in the above entitled ease may be settled by the clerk of the district court.” Doubtless the clerk of the district court acted upon this stipulation as his authority for signing and allowing this bill of exceptions. Section .311 of the Code of Civil Procedure provides: “In case of the death of the judge, or when it is shown by affidavit that the judge is prevented by sickness, or absence from his district, as well as in cases where the parties interested shall agree upon the bill of exceptions, and shall have attached a written stipulation to .that effect to the bill, it shall be the duty of the clerk to settle and sign the bill in the same manner as the judge is by this act required to do.” To confer authority upon the clerk of a district court to sign and allow a bill of exceptions, then, it must appear that the judge of the district court is dead, or that he is prevented by sickness, or absence from his district, from signing and allowing the bill, or the parties to the litigation, or their counsel, must agree upon the bill of exceptions and attach thereto their written stipulation to that effect. Counsel for the parties to this litigation did agree and stipulate that the clerk might sign the bill of exceptions, but they did not agree by stipulation in .writing attached to the bill that it was the correct bill of exceptions in the case. Where it is sought to present to this court alleged errors occurring at a trial in the district court, a bill of exceptions settled and signed as required by law is indispensably necessary. (Reynolds v. Dietz, 39 Neb., 180; Edwards v. Kearney, 14 Neb., 83.) We cannot, therefore, examine what purports to be the bill of exceptions in this case for the purpose of ascertaining whether the decree appealed from is the correct one under the evidence. In other words, the bill of exceptions cannot.be used for any purpose. The only question left, then, in this case is whether the pleadings support the judgment rendered; and as they do, it follows that the decree of the district court must be and is

Affirmed.