Background

• Whelans contracted Centurion Stone for services and supplies; Centurion Stone sued for breach of contract and quantum meruit, seeking $15,973.58; the jury entered judgment for Centurion Stone for $8,256.75 against the Whelans.
• The Whelans appealed to the district court and offered the county court bill of exceptions as evidence, but the bill was incomplete due to a missing tape (tape 17) with several hours of testimony.
• The district court learned of the incompleteness and reviewed only pleadings, affirming the county court judgment; it noted the Whelans’ errors were not properly supported in the record, and the late timely-filed errors would not cure the defects.
• The district court stated it would not rely on an incomplete bill of exceptions and did not remand to complete the record or order a new trial.
• The Nebraska Supreme Court held the district court erred by not remanding to require a complete bill of exceptions or a new county court trial, since the incompleteness was the county court’s fault.
• The court reversed the district court’s judgment and remanded with directions to obtain a complete bill of exceptions or hold a new trial in the county court.

Issues

Key Cases Cited

• Terry v. Duff, 246 Neb. 11 (1994) (remand when bill of exceptions is missing or incomplete due to court error)
• State v. Slezak, 230 Neb. 197 (1988) (remand to prepare a new bill when record deficient through no fault of parties)
• Hynes v. Good Samaritan Hosp., 285 Neb. 985 (2013) (vacate judgment and remand for a new trial when testimony was not preserved)
• Schinnerer v. Nebraska Diamond Sales Co., 278 Neb. 194 (2009) (emphasizes burden to create/request the appellate record)
• Intercall, Inc. v. Egenera, Inc., 284 Neb. 801 (2012) (illustrates record-defect remedy considerations)
• Huddleson v. Abramson, 252 Neb. 286 (1997) (bill not part of appellate record; remand appropriate)