§ 25-1140.09 — Bill of exceptions; preparation; court reporter; fees; procedure for preparation; taxation of cost

Nebraska § 25-1140.09

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

Text

On the application of the county attorney or any party to a suit in which a record of the proceedings has been made, upon receipt of the notice provided in section 29-2525 , or upon the filing of a praecipe for a bill of exceptions by an appealing party in the office of the clerk of the district court as provided in section 25-1140 , the court reporter shall prepare a transcribed copy of the proceedings so recorded or any part thereof. The reporter shall be entitled to receive, in addition to his or her salary, a per-page fee as prescribed by the Supreme Court for the original copy and each additional copy, to be paid by the party requesting the same except as otherwise provided in this section.
When the transcribed copy of the proceedings is required by the county attorney, the fee therefor shall be paid by the county in the same manner as other claims are paid. When the defendant in a criminal case, after conviction, makes an affidavit that he or she is unable by reason of his or her poverty to pay for such copy, the court or judge thereof may, by order endorsed on such affidavit, direct delivery of such transcribed copy to such defendant, and the fee shall be paid by the county in the same manner as other claims are allowed and paid. When such copy is prepared in any criminal case in which the sentence adjudged is capital, the fees therefor shall be paid by the county in the same manner as other claims are allowed or paid.
The fee for preparation of a bill of exceptions and the procedure for preparation, settlement, signature, allowance, certification, filing, and amendment of a bill of exceptions shall be regulated and governed by rules of practice prescribed by the Supreme Court. The fee paid shall be taxed, by the clerk of the district court, to the party against whom the judgment or decree is rendered except as otherwise ordered by the presiding district judge.

Legislative History

Source: Laws 1879, § 49, p. 93; Laws 1907, c. 43, § 1, p. 182; R.S.1913, § 1200; C.S.1922, § 1123; Laws 1925, c. 67, § 1, p. 225; C.S.1929, § 27-339; R.S.1943, § 24-342; Laws 1949, c. 45, § 1, p. 150; Laws 1957, c. 107, § 5, p. 380; Laws 1961, c. 104, § 1, p. 336; Laws 1961, c. 105, § 1, p. 337; Laws 1961, c. 106, § 1, p. 338; Laws 1971, LB 357, § 1; Laws 1973, LB 146, § 1; Laws 1973, LB 268, § 2; Laws 1974, LB 647, § 2; Laws 1978, LB 271, § 1; Laws 1982, LB 722, § 1; R.S.1943, (1985), § 24-342; Laws 1991, LB 37, § 1; Laws 2005, LB 348, § 3; Laws 2015, LB268, § 4; Referendum 2016, No. 426. Note: The changes made to section 25-1140.09 by Laws 2015, LB 268, section 4, have been omitted because of the vote on the referendum at the November 2016 general election. Annotations: 1. Poverty affidavit 2. Fees 3. Miscellaneous 1. Poverty affidavit The determination of defendant's ability to pay for bill of exceptions is within discretion of trial court. State v. Eberhardt, 179 Neb. 843, 140 N.W.2d 802 (1966). Poverty affidavit must be filed within same period of time as is provided by rule of court for ordering bill of exceptions. Kennedy v. State, 170 Neb. 348, 102 N.W.2d 620 (1960). Affidavit of poverty must be filed in district court. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960). Where poverty affidavit is filed, defendant is entitled to bill of exceptions at cost of county unless it is shown that affidavit is untrue or that inability to pay is occasioned by defendant's own willful act. Fisher v. State, 153 Neb. 226, 43 N.W.2d 600 (1950). When affidavit of poverty, supported by oral evidence sufficient to meet requirements of statute, is filed, court must direct reporter to prepare bill of exceptions at county's expense. Rice v. State, 120 Neb. 641, 234 N.W. 566 (1931). Request for bill of exceptions at county's expense should be denied where it is shown that the applicant's poverty is untrue or occasioned by own willful act. Altis v. State, 109 Neb. 776, 192 N.W. 327 (1923). 2. Fees Cost of bill of exceptions is fixed by statute. Anderson v. Evans, 168 Neb. 373, 96 N.W.2d 44 (1959). Where court reporter charges amount in excess of that authorized by statute, he may be directed to refund overcharge. State ex rel. Beck v. Associates Discount Corp., 168 Neb. 298, 96 N.W.2d 55 (1959). Charge for preparation of bill of exceptions was excessive. Young v. Young, 166 Neb. 532, 89 N.W.2d 763 (1958). Cost of preparation of bill of exceptions is controlled by this section. Pueppka v. Iowa Mutual Ins. Co., 166 Neb. 203, 88 N.W.2d 657 (1958). 3. Miscellaneous In criminal cases, bill of exceptions must be prepared within forty days of time petition in error is filed unless time is extended. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958). Time to settle bill of exceptions in criminal case commences to run upon filing of petition in error in Supreme Court. Bryant v. State, 153 Neb. 490, 45 N.W.2d 169 (1950). Transcript of proceedings before Board of Equalization may be compelled by mandamus. Mockett v. State ex rel. Woods, 70 Neb. 518, 97 N.W. 588 (1903). If transcript cannot be had, relief may be obtained in equity. Holland v. Chicago, B. & Q. R. R. Co., 52 Neb. 100, 71 N.W. 989 (1897). Section is constitutional and amendment germane to title of original act. State ex rel. Carey v. Cornell, 50 Neb. 526, 70 N.W. 56 (1897). Transcript will not be ordered by Supreme Court where party has not complied with or sought review of order below. Argabright v. State, 46 Neb. 822, 65 N.W. 886 (1896). Reporter's notes are not public records and certified copy is inadmissible as evidence. Smith v. State, 42 Neb. 356, 60 N.W. 585 (1894); Jordan v. Howe, 4 Neb. Unof. 667, 95 N.W. 853 (1903). Party is entitled to rely upon transcript being produced correctly and in time. Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762 (1880).