17 Neb. 593 | Neb. | 1885
Before the final submission of this cause defendant in error filed two motions, one to strike from the record the affidavit of Riley M. Graves attached to the bill of exceptions, for the reason that it was not preserved as a part of the record by the proper bill of exceptions, there being no proof that it was considered by the district court in determining the motion to which it is attached. The other to “dismiss the appeal,” for the reason that no motion for a new trial or to set aside the judgment was made in the court below.
These motions will be disposed of in the order of their filing, as above indicated. The cause was originally submitted to the arbitration of George W. Hanson, under the provisions of section 862 et seq. of the civil code. The submission was in writing, and provided that judgment should be entered upon the award by the district court of Jefferson county. The arbitrator returned his award to the district court. The plaintiff in error then filed a motion to set aside the award, alleging various reasons therefor, and so far as appears, in support of the motion attached thereto his affidavit, which in the motion is referred to as “marked exhibit CA/ ” and made a part of the motion. There is no bill of exceptions. The question presented by the motion is, whether or not, in the absence of a bill of exceptions, what purports to be a copy of the affidavit attached to the files is properly a part of the record.
Upon this question the decisions of this court have been substantially uniform, and it has, with one exception, we think, been held that affidavits used on a hearing in the district court must be embodied in a bill of exceptions in order to be available in the supreme court. In Tessier v. Crowley, 16 Neb., at page 372, Chief Justice Cobb, in writing the opinion of the court, says : “ It has been held
The position taken by defendant in error in his second motion cannot be sustained. No motion for a new trial was necessary. The award of the arbitrator did not include the testimony heard upon the trial and none of the evidence was passed upon by the district court. Section 874 of the civil code provides that “the award may be rejected by the court for- any legal and sufficient reason, or it may be recommitted for a rehearing to the same arbitrators, or any others agreed upon between the parties.” Upon the filing of the award plaintiff in error filed his motion to reject and set it aside, alleging, as he supposed,
The cause having been finally submitted upon its merits, it becomes necessary to examine the record unaided by any of the proofs before the district court. The only objection to the award which it is thought necessary here to notice is contained in the first and second objections thereto in the petition in error, and which may be said to strike at the sufficiency and validity of the award. This award consists mostly of a simple tabulated statement of an account. Its caption is as follows:
“Commenced business March 5,1879; R. M. Graves in account with Graves and Scoville; amount of credits on ledger, and interest on same to March 25, 1883, at ten per cent per annum.” The only finding of fact contained in the award is “that there is due from the said R. M. Graves to the said H. T. Scoville, under and by the matters in difference and controversy as set forth in said articles of submission, and submitted to me by the said parties, the sum of one thousand six hundred and fifty-six dollars and eighty-eight cents.” The submission is of a partnership account of several years’ business and involves the consideration of large sums of money paid out and received by the parties, as well as time and other things of value contributed and,received by them. The award is defective in many particulars which we need not notice specifically here. • It is not specific or direct and does not, in fact, amount to an award under the provisions of the code. It should state with particularity the amount invested and received by each partner, including as near as practicable tibe items of payment and of receipt, so that a court in passing upon it could do so understandingly. Section 867 of the civil code
In Murry v. Mills, 1 Neb., 456, it was held that the provisions of section 300 are by section 867 made applicable to the report of arbitrators, and that such report must, to have any validity to support a judgment, state-the facts found by the arbitrator and the conclusions of law thereon separately. The award in this case was objected to, but the objections were overruled and judgment rendered thereon over the objections and exceptions of plaintiff in error. This, as we have seen, was error.
The decision and judgment of the district court are reversed, and the cause remanded to the district court with, direction to reject the award.
Judgment accordingly.