§ 25-1140 — Bill of exceptions; filing of request; further proceedings governed by rules of court

Nebraska § 25-1140

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Upon appeal from the district court, the party appealing may order a bill of exceptions by filing in the office of the clerk of the district court a praecipe therefor within the time allowed for filing a notice of appeal. The procedure for preparation, settlement, signature, allowance, certification, filing, and amendment of the bill of exceptions shall be regulated and governed by rules of practice prescribed by the Supreme Court.

Legislative History

Source: R.S.1867, Code § 311, p. 446; Laws 1877, § 2, p. 11; Laws 1881, c. 27, § 2, p. 202; Laws 1895, c. 72, § 1, p. 311; R.S.1913, § 7880; C.S.1922, § 8823; Laws 1923, c. 114, § 1, p. 273; C.S.1929, § 20-1140; R.S.1943, § 25-1140; Laws 1947, c. 83, § 1(1), p. 257; Laws 1959, c. 104, § 1, p. 431; Laws 1991, LB 732, § 47; Laws 1992, LB 360, § 4. Annotations: 1. Preparation and filing 2. Extension of time 3. Failure to obtain 4. Miscellaneous 1. Preparation and filing In order for the appellate court to consider evidence, the evidence must be marked, identified, and made a part of the bill of exceptions at the trial court. Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020). Bill of exceptions was properly settled under statute in force at time of settlement. Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599 (1960). On appeal to Supreme Court from district court in workmen's compensation case, bill of exceptions must be prepared, served, settled and filed in accordance with this section. Adkisson v. Gamble, 143 Neb. 417, 9 N.W.2d 711 (1943). Court reporter's transcript or certificate of affidavit on motion for new trial is not essential. State ex rel. Farmers Mut. Ins. Co. of Nebraska v. Colby, 107 Neb. 372, 186 N.W. 355 (1922). Bill of exceptions is necessary to review action of board of equalization of metropolitan water district. McCague Inv. Co. v. Metropolitan Water Dist. of Omaha, 101 Neb. 820, 165 N.W. 158 (1917). Bill of exceptions is required on error proceedings to review action of State Banking Board in granting or refusing bank charter. State ex rel. White v. Morehead, 101 Neb. 37, 161 N.W. 1040 (1917). Where it was obvious that the word "testimony" was used with reference to the evidence, certificate signed by judge that bill of exceptions contained all the testimony was sufficient. Woolworth v. Parker, 57 Neb. 417, 77 N.W. 1090 (1899). Procedure in law and equity actions is the same. Uhling v. Schellenberg, 12 Neb. 609, 12 N.W. 272 (1882). 2. Extension of time The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016). Time allowed by extension by its terms covered both preparation and serving of bill of exceptions, and reduced time for preparation. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958). Party must apply to trial judge for extension though his term has expired; successor cannot grant. Hanscom v. Lantry, 48 Neb. 665, 67 N.W. 762 (1896). 3. Failure to obtain Where the bill of exceptions was patently incomplete on appeal, the Supreme Court disregarded it and affirmed orders of both lower courts on the basis that the pleadings supported the judgment granted below. Boosalis v. Horace Mann Ins. Co., 198 Neb. 148, 251 N.W.2d 885 (1977). Where a municipal court judgment was reversed in district court, then appealed without a certified bill of exceptions, the Supreme Court limits its review to whether the pleadings support the judgment entered by the district court. Allgood v. Nebraska Humane Society, 197 Neb. 373, 248 N.W.2d 778 (1977). In absence of bill of exceptions on a motion for new trial, judgment denying writ of habeas corpus will be affirmed where return to writ states a defense. McQueen v. Jones, 150 Neb. 853, 36 N.W.2d 271 (1949). Where bill of exceptions is stricken because of failure to settle same, only question presented is whether or not the pleadings support the judgment. Dryden & Jensen v. Mach, 150 Neb. 629, 35 N.W.2d 497 (1949). Where, upon appeal in a divorce case, the husband fails to comply with order to pay costs of appeal, resulting in failure to have bill of exceptions settled within time, decree may be reversed. Bonzo v. Bonzo, 138 Neb. 92, 292 N.W. 61 (1940). Where the record contains no bill of exceptions and the pleadings are sufficient to support the judgment, the judgment will be affirmed. Occidental Bldg. & Loan Assn. v. Carlson, 134 Neb. 574, 279 N.W. 162 (1938). 4. Miscellaneous Statute places the burden on the appellant to file a praecipe identifying the matter to be contained in the bill of exceptions. State v. Blue, 223 Neb. 379, 391 N.W.2d 102 (1986). Rule 7, Revised Rules of the Supreme Court 1974, enacted pursuant to this section, govern bills of exceptions on appeal from the district court to the Supreme Court. State v. Jacobsen, 194 Neb. 105, 230 N.W.2d 219 (1975). The bill of exceptions is the only vehicle for bringing evidence before the Supreme Court on appeal. Everts v. School Dist. No. 16 of Fillmore County, 175 Neb. 310, 121 N.W.2d 487 (1963). The preparation and certification of bill of exceptions are governed by rule of the Supreme Court. Leu v. Swenson, 174 Neb. 591, 119 N.W.2d 68 (1962). Rules of Supreme Court for preparation of bill of exceptions are authorized by this section. Hilligas v. Farr, 171 Neb. 105, 105 N.W.2d 578 (1960). Time for settling bill of exceptions provided by this section applies to proceedings in error in criminal case. Bryant v. State, 153 Neb. 490, 45 N.W.2d 169 (1950). Affidavits used in district court in support of motion to set aside default judgment must be embodied in a bill of exceptions for purposes of review. Benson v. General Implement Corporation, 151 Neb. 234, 37 N.W.2d 223 (1949). Sufficient exceptions were taken on behalf of accused. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931). "Case stated," under Supreme Court rule is equivalent to bill of exceptions; must be certified by trial judge and filed with clerk. Bank of Benson v. Gordon, 101 Neb. 162, 162 N.W. 419 (1917). Expense of bill of exceptions is taxable as costs in district court. Pettis v. Green River Asphalt Co., 71 Neb. 513, 99 N.W. 235, 101 N.W. 333 (1904). Purpose is to bring into record matters that would not otherwise appear. Mandell v. Weldin, 59 Neb. 699, 82 N.W. 6 (1900). A bill of exceptions settled in one case cannot be made the bill of exceptions in another case solely by stipulation. Murphy v. Warren, 55 Neb. 220, 75 N.W. 575 (1898). Remedy for reporter's delay is motion for new trial. Mathews v. Mulford, 53 Neb. 252, 73 N.W. 661 (1898). It is only in the exceptional cases enumerated that clerk of district court is authorized to sign and allow bill of exceptions. Glass v. Zutavern, 43 Neb. 334, 61 N.W. 579 (1895).