Credit Foncier of America v. Rogers, 8 Neb. 34

Credit Foncier of America v. Rogers

8 Neb. 34 | Neb. | 1878

Maxwell, Ch. J.

The attorneys in this case entered into the following stipulation:

“It is hereby stipulated that the foregoing is the record of the proceedings in said cause in said court, upon the motion to dismiss said cause, and shows truly all the proceedings therein, and contains all the evidence before said court on said motion. It is further agreed that said record may be filed in the supreme court, a certified transcript of the same being waived.”

This stipulation is appended to what purports to be a bill of exceptions, but the so-called bill of exceptions contains no certificate of the judge, nor is any cause assigned why such certificate has not been obtained. The defendant now moves to quash the bill of exceptions, upon the ground that it is not signed by the judge of the district court, and therefore the record confers no jurisdiction on the supreme court.

The act to amend sections 308 and 311 of the code of civil procedure, approved February 15,1877, laws of *361877, p. 11, requires the hill of exceptions to he signed by the judge that tried the cause, with a certificate to the effect that the same is allowed. In case of the death of the judge after the exceptions are taken, and before the bill is signed, it is the duty of the clerk of the court to settle and sign the hill. In all cases where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing, and they must he certified iu the manner required by the statute before this court has any authority to examine them. And this rule includes affidavits either in support of, or in opposition to, any proceeding in the court below. Affidavits not properly being a part of the record, can only be m#de such by being embodied in a bill of exceptions. Ray v. Mason, 6 Neb., 101. The stipulation of the attorneys in the case might have been sufficient to justify the judge of the court below in signing the bill as presented, but forms no basis for this court to consider the matters embraced in tbe bill. The motion to quash is therefore sustained and tbe case is dismissed out of this court.

Judgment Accordingly.