64 Neb. 451 | Neb. | 1902
This action was begun in the district court for Johnson county by this plaintiff in error against this defendant in
It is insisted in the briefs herein that the objection was properly sustained upon two grounds: First, that there had been a stipulation made in a former case, by which this case was to be disposed of, and that under that stipulation there should have been a judgment in this case for the defendant; but, as there is nothing in the record showing that any such stipulation had been made by the parties, it will not be necessary to consider that suggestion any further.
The second ground upon which it is insisted that the objection was properly sustained is that the amended petition) showed on its face that the action .was barred by the statute of limitations. ' The time necessary to complete the bar of the statute expired after the commencement of this action, and before the filing of the amended petition upon which the action was tried. The original petition
The question in this case is whether the amended petition shows on its face that the action was barred by the statute of limitations. It is suggested that this petition states a different cause of action from that stated in the original petition, so that the filing of this amended petition was in effect the commencement of a new action, within the decision of this court in Buerstetta v. Tecumseh Nat. Bank, 57 Nebr., 504, but that does not appear upon the face of the amended petition. No doubt, in determining that question the district court would take notice of the original petition, and it is insisted here that the court did take notice of the nature of the original petition, but in determining whether the court based its ruling upon a consideration of the allegations of the original petition and a comparison of those allegations with those of the amended petition, we must, as in all other questions, be governed by the record. Chicago, R. I. & P. R. Co. v. Ringo, 52 Nebr., 163. We can not take judicial notice of the records of the district court. We can only consider such records of that court as are shown by the transcript. Thompson & Sons Mfg. Co. v. Nicholls, 52 Nebr., 312; Royal Trust Co. v. Exchange Bank, 55 Nebr., 663. If, in order to support the decree of the trial court, we could presume the existence of some record of the district court not shown by the transcript here, there are few cases, under the existing practice, to which the rule would not apply, and require an affirmance of the judgment complained
The judgment of the district court is reversed and the cause remanded.
Reversed and remanded.