State ex rel. Holm v. Ellsworth

100 N.W. 314, 72 Neb. 277, 1904 Neb. LEXIS 177

• Court: Nebraska Supreme Court
• Decided: June 30, 1904
• Docket: No. 13,577
• Status: Published

Opinion

Oldham, C.

This is a proceeding in error to review the action of the district court for Saunders county, denying a writ of mandamus. There is no motion for a new trial in the record nor are there any suggestions therein that one was filed in the court below. A motion for a new trial is a prerequisite to a review of alleged error, occurring during the progress of the trial in the district court, by this tribunal. It may be incidentally mentioned, however, that on the statements of the petition, the writ was properly denied. The object of the writ as shown by the petition was to compel a justice of the peace to incorporate in his transcript an offer by the defendant in that court to allow judgment to be taken against him in a certain amount. This offer need not be included in the transcript; it is sufficient if in writing signed by the party and filed with the justice at any time before trial. On appeal it should be certified up. This is all that is necessary to have it considered by the district court on the question of costs. Ossenkop v. Akeson, 15 Neb. 622.

We therefore recommend that the judgment of the district court be affirmed.

Ames and Letton, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.