64 Neb. 429 | Neb. | 1902
This case has apparently been brewing a good whthe, but the results disclosed by the record in this court are not such as to apprise us with any certainty what it is all about, or to enable us to pass upon them either intelligently or intelligibly. The transcript contains what purports to be a copy of an affidavit in replevin in a justice?® court in an action in which the William J. Lemp Brewing Company, a corporation, is named as plaintiff, and one
The requirement of section 586 of the Code, that “the plaintiff in error shall fthe with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified,” applies equally to proceedings in error in the district court and in this court, and in the absence of such a transcript the court has no jurisdiction to proceed further than to dismiss the petition in error. Zink v. Westervelt, 52 Nebr., 90. It follows that the judgment of the district court was the only one that it could rightfully have rendered upon the record before us. Whether in an earlier stage of the proceeding the district court reversed a judgment of an inferior tribunal, or how this case found its way to a place upon its docket, or what was the precise subject of the litigation, or how the court acquired jurisdiction over it, the transcript does not disclose. We may gather from the bill of exceptions that the principal controversy was over the truth or falsity or the sufficiency of the return of a constable to a writ of replevin issued by a justice of the peace, and as to the right or authority of the court to amend the return, or permit it to be amended.
It is contended by the plaintiff in error that the district court did make an order permitting such an amendment, but the record contains no transcript of such order. The bill of exceptions contains an entry showing that the court, did make such an order, and the court reporter certifies that the entry is true, but the judge in his certificate to the bill asserts that it is false, and orders it to be stricken out.
We think it is usually regarded as the better practice in such cases to accept the certificate of the judge rather than that of the reporter. If the other matters inquired into upon the trial were to be considered, we should have no hesitancy in saying that the conclusions of the court
It is recommended that the judgment of the district court be affirmed.
By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.