35 Neb. 822 | Neb. | 1892
This is an original application for a writ of mandamus to compel the defendant to sign a bill of exceptions in the case of Thomas Hines against the relators and others, which was tried before respondent in the Douglas county district court. The action above mentioned was to foreclose a mechanic’s lien. Affidavits were filed to the effect that the cause was tried at the May, 1891, term of said •court, and the decision was orally announced in open court in the. presence of the parties on the 8 th day of August, 1891, the same being a day in said May term of court; that on the same day a draft of the decree was prepared by the attorney for- the successful party, which was presented to the attorney for the relators as well as the attorneys for all the other parties interested in the litigation; who approved the same; that immediately thereafter, and on the said 7th day of August, the said draft of the decree was filed with, the clerk of the district court, who indorsed thereon the following: “Piled August 8, 1891. Prank E. Moores, Clerk.” That,' by the terms of the decree so
It is conceded that the proposed bill is correct. Was it completed, served upon the parties in interest, and presented to the judge for his signature within the time allowed by-statute? Section 311 of the Code of Civil Procedure, relating to bills of exceptions, provides that “ When 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 within fifteen (15) days, or in such time as the court may direct, not exceeding forty (40) days from the adjournment of the court sine die, and submit the same to the adverse party or his attorney of record for examination and amendment if desired,” etc. Manifestly under the above statutory provision the time within which a party must complete and
At which term of the district court was the decree in Hines v. Cochran rendered If the determination of the question depended upon the affidavits filed in this case, we would be forced to the conclusion that the decree was pronounced at the May, 1891, term. But there is in the record other evidence, of a higher character, of the date of the rendition of the decree. A certified copy of the journal
“Thomas Hines v. Charlotte A. Cochran et al.
“ This cause came on to be heard at a previous term of this court upon the petition of the plaintiff) the answer and cross-petitions of * * *, the several replies filed herein, and the evidence, and being submitted to the court, and the court, being fully advised in the premises, find * * * and forty days from the rising of the present term to prepare and serve a bill of exceptions herein.”
It appears from the above journal entry that the cause was tried at the May, 1891, term, and the decision was rendered at the following September term. The record is conclusive as to the time the decree in question was rendered, and neither party can contradict the statements oí the record by affidavits or other evidence. If the record is incorrect as to the time the decree was rendered, the remedy is by a proper proceeding in the trial court to correct the error, if one was made. The record of the trial court imports absolute verity. (Haggerty v. Walker, 21 Neb., 596; Worley v. Shong, 35 Neb., 311; McAllister v. State, 81 Ind., 256.) That the cause was tried at the May term of the district court is quite immaterial. The time of completing and serving a bill of exceptions in the case did not commence to run from the adjournment of that term, for the reason no decision was made until the succeeding term. In a cause tried to the court without the intervention of a jury at one term and decided at a subsequent term, it has been held that the party has the statutory time for reducing his exceptions to writing after the close of the term at which the decision was made. (Wineland v. Cochran, 8 Neb., 528.)
Judgment accordingly..