Thies v. Thies

172 N.W. 364, 103 Neb. 499, 1919 Neb. LEXIS 85

• Court: Nebraska Supreme Court
• Decided: May 3, 1919
• Docket: No. 20198
• Status: Published

Opinions

Cornish, J.

This is a divorce action in which both of the parties prayed for absolute divorce and such other relief as might be just and equitable. The trial court entered a decree of separate maintenance for the wife, who is plaintiff. The defendant appeals.

The power of the trial court to enter a decree for separate maintenance in divorce actions, where the evidence justifies it, has-been decided by this court, and we are not disposed to overrule our previous decisions. Sample v. Sample, 82 Neb. 37, and cases cited.

The defendant (appellant) further contends that the findings of fact made by the court are not sufficient to sustain the decree. The record brought to this court by defendant does not contain the evidence preserved in a bill of exceptions. The question arises whether this court will entertain an appeal involving, in any way, findings of fact based upon the evidence when the evidence is not presented to the court. Section 8198, Rev. St. 1913, provides that in appeals in equity' cases, wherein .review of some or all of the findings of fact is asked by the appellant, the supreme court is required “to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions, and upon trial de novo of such question or questions of fact reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.”

“Trial de novo” means to try anew; for a second time. Where the contention is that the evidence will not support the findings and decree entered, then of course an issue is presented which this court could not determine without having the evidence before it. If the contention is that some finding of the court was not supported by the evidence, then so much of the record and evidence as bears upon that issue should be brought to this court; and, if the contention is that a necessary finding to support the decree has not been made, we are still of opinion that the statute contemplates a consideration by the court of the pleadings and the evidence, for the purpose of making the proper findings and decree, or, in its discretionary power, remanding the case for further proceedings. Hanson v. Hanson, 4 Neb. (Unof.) 880, 887; Colby v. Foxworthy, 80 Neb. 239, 244; In re Littlefield, 61 Wash. 150; Taffe v. Smyth, 62 Or. 227; In re Estate of McVay, 14 Idaho, 56.

When the review sought in no way involves the findings of the court upon the evidence, then it would not be necessary to preserve the evidence in a bill of exceptions.

It is possible that the evidence has been preserved in a bill of exceptions, properly certified to, in which event the defendant has leave to file the same in this court within 20 days; otherwise, his appeal to stand dismissed.

JUDGMENT ACCORDINGLY.

Appeal in Equity: Trial de Novo. Under’ section 8198, Rev. St. 1913, if “a finding of fact” is “complained of” on appeal from the district court in an equity case, this court must try de novo the issue of fact “involved in the finding,” and for that purpose must have “the evidence preserved in the hill of exceptions.”