Western Gravel Co. v. Gauer

Nebraska Supreme Court

Western Gravel Co. v. Gauer

67 N.W. 150, 48 Neb. 246, 1896 Neb. LEXIS 45

CourtNebraska Supreme Court

DecidedMay 6, 1896

DocketNo. 6580

StatusPublished

Cited by3 cases

This text of 67 N.W. 150 (Western Gravel Co. v. Gauer) 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

Western Gravel Co. v. Gauer, 67 N.W. 150, 48 Neb. 246, 1896 Neb. LEXIS 45 (Neb. 1896).

Pincite

Opinion

Post, C. J.

The plaintiff, against which decree had been entered by the district court for Cass county, prosecuted a pro-[247]*247eeeding by petition for a new trial under the provisions of section 318 of the Code. Said petition, upon final hearing thereof, was dismissed and a new trial denied, to Avhich order and judgment exception was taken and the cause by appropriate proceeding removed into this court for review.

The only proposition necessary to notice at this time is that the record does not present the merits of the controversy, since the evidence upon the former hearing is not included in the bill of exceptions herein. Where a new trial is sought by means of a petition filed after the term at which the judgment or decree was rendered, the petitioner is required to show the evidence at the former trial when material, as well as the newly-discovered evidence or other ground alleged therefor, and both must be preserved in the bill of exceptions in order to entitle the unsuccessful party to a review of such proceeding by this court. (Omaha, N. & B. H. R. Co. v. O’Donnell, 24 Neb., 753.) The sole question presented by the petition in this case was whether, in view of the issues as finally made, the decree was warranted by the evidence. It is, there-, fore, clearly within the rule stated, and the judgment complained of must be

Affirmed.

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Post, C. J.

The plaintiff, against which decree had been entered by the district court for Cass county, prosecuted a pro-[247]*247eeeding by petition for a new trial under the provisions of section 318 of the Code. Said petition, upon final hearing thereof, was dismissed and a new trial denied, to Avhich order and judgment exception was taken and the cause by appropriate proceeding removed into this court for review.

The only proposition necessary to notice at this time is that the record does not present the merits of the controversy, since the evidence upon the former hearing is not included in the bill of exceptions herein. Where a new trial is sought by means of a petition filed after the term at which the judgment or decree was rendered, the petitioner is required to show the evidence at the former trial when material, as well as the newly-discovered evidence or other ground alleged therefor, and both must be preserved in the bill of exceptions in order to entitle the unsuccessful party to a review of such proceeding by this court. (Omaha, N. & B. H. R. Co. v. O’Donnell, 24 Neb., 753.) The sole question presented by the petition in this case was whether, in view of the issues as finally made, the decree was warranted by the evidence. It is, there-, fore, clearly within the rule stated, and the judgment complained of must be

Affirmed.

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Bluebook (online)

67 N.W. 150, 48 Neb. 246, 1896 Neb. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-gravel-co-v-gauer-neb-1896.

Opinion

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