53 Neb. 209 | Neb. | 1897
Action by Anna F. Corey and Dora Corey upon a fire insurance policy. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant, prosecutes error.
Immediately preceding the trial the defendant below applied for a continuance in order to procure the attendance of one Ethel Corbett as a witness, which application was denied. Complaint is now made of this ruling. The record discloses that the person above named was present at the trial, was placed upon the witness stand, and examined by plaintiff below and cross-examined by defendant. The court also informed counsel for the company that they might make Miss Corbett a witness for the defense, and when she was excused from the stand the court asked: “Do any of the parties want this witness any further during the trial?” To this inquiry counsel for plaintiffs and defendants, respectively, replied in the negative. It is obvious that there was no error commited in refusing to postpone the trial to procure the attendance of Miss Corbett.
After the impaneling of the jury the defendant a second time sought a continuance of the cause until the next term of court because of the absence of George Brewer, which motion was denied. This decision cannot be reviewed, for the reason the affidavit filed in support of the motion has not been embodied in the bill of exceptions. It is an inflexible rule that affidavits used in the trial court are not available in this’court, unless preserved by means of a bill of exceptions. (Ray v. Mason, 6 Neb. 101; Walker v. Lutz, 14 Neb. 274; Tessier v. Crowley, 16 Neb. 372; Graves v. Scoville, 17 Neb. 593; Burke v. Pepper, 29 Neb. 320; Strunk v. State, 31 Neb. 119; Korth v. State, 46 Neb. 631; Minick v. Minick, 49 Neb. 89.)
On the answer day, which was March 4, 1895, the de
. Complaint is made because the court allowed a reply traversing the averments of the amended answer to be filed after the selection of the jury. The granting of permission to reply out of time, or during the trial, rests largely in the legal discretion of the trial court. (Storz v. Finklestein, 48 Neb. 27, and cases cited.) No abuse of discretion in the ruling just indicated is perceptible. No continuance was asked, or suggested, by the defendant
At the rendition of the judgment, on written motion of plaintiff, an attorney’s fee of $200 was allowed them by the court and taxed as part of the costs, which action is assailed on the ground that an attorney’s fee was not specially asked in the petition, the prayer being merely for a judgment in a sum certain as damages, and for costs. It is true no motion to retax the costs was made in the trial court, but that does not foreclose a review of the decision of the court under consideration. It has been frequently asserted that a motion to retax costs in a trial court and a ruling thereon are essential to review the taxation of costs. This rule, however, cannot be invoked in this case, for' the obvious reason that a retaxation of the costs is not sought on account of any mistake, neglect, or omission of the clerk of the district court, but the action of the court itself is assailed in allowing an attorney’s fee. As was said by Post, J., in the opinion in Burton v. State, 34 Neb. 127, where the identical question was involved and decided: “Ordinarily the taxing of costs is a clerical act performed by the clerk and the presumption is that the action of the clerk has not been called to the attention of the court; hence this court will not, as a rule, review an order taxing costs until a motion to retax has been made and the trial court given an opportunity to correct the errors, if any have been made. In this case the court has considered the question of the liability of plaintiff in error and deliberately determined that he is liable for costs of prosecution. Here the reason of the rule is wanting. It would be an idle and useless form to ask the court to correct on the theory of a mistake or inadvertence of the clerk that which the record shows to have been a deliberate act of the court.” In actions like the present one the statute makes it the duty of the court, and not the clerk, to determine the amount of attorney’s fees which shall be paid by the insurer to the insured. The clerk
The policy declared on insured plaintiffs below against loss or damage by fire in the sum of $2,000 upon their two-story frame hotel building situate in the town of Greeley. The insured building having been wholly destroyed by fire, without the criminal fault of the insured, plaintiffs, under the valued policy law, were entitled to recover the amount of insurance named in the policy, and in addition thereto a reasonable sum, to be fixed by the court, as an attorney’s fee. (Compiled Statutes, ch. 43, secs. 43, 45; German Ins. Co. v. Eddy, 37 Neb. 461; German Ins. Co. v. Gustin, 40 Neb. 828.) In the first of those cases it was said that attorney’s fees in an action on a policy issued under the valued policy act of 1889, must be demanded in the petition, and the question of allowance of such fees be presented to the trial court and a ruling obtained thereon in order to present the question in the appellate court. That case having been unchallenged for so long a time, should be adhered to. It is not in conflict with Insurance Co of North America v. Bachler, 44 Neb. 549, but harmonizes therewith, as an examination of the transcript of the Bachler case reveals that the petition therein specially prayed for the allowance of an attorney’s fee. In Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828, the question whether the petition on
Affirmed.