47 Neb. 235 | Neb. | 1896
This is an original application for a writ of mandamus requiring the respondent, one of the judges of the fourth judicial district, to settle and sign a bill of exceptions in the case of the relator, Regina Marrow, v. Emily Hespeler, tried before the respondent. An answer to the alternative writ was presented raising issues of fact, and a referee, appointed by the court for the purpose, has made a-report of the evidence taken, together with his findings of fact and conclusions of law. The relator moves for a confirmation of this report. The respondent moves to set it aside and for judgment. Our conclusion on one question of law presented by findings of fact which are not attacked, renders it unnecessary to consider any of the other exceptions to the report.
The referee finds that the action of Marrow v. Hespeler was tried at the May, 1894, term of the district court and a verdict returned in favor of the plaintiff, the relator in this action, for $4,000; that on the same day a motion for a new trial was filed by the defendant, which was on the following day sustained; that the May, 1894, term adjourned July 14, 1894. At the September, 1894, term the cause was again tried, resulting, November 17, 1894, in a verdict for the defendant, and forty days — thereafter extended to eighty days — from the adjournment of that term was allowed for preparing and serving a bill of exceptions that
It will be observed that the foregoing facts present the question as to whether, when a trial has been had and the verdict set aside, a party seeking to procure a bill of exceptions preserving the evidence on that trial must move in the matter within the statutory period after the first trial, or whether he may wait until final judgment or the overruling of a motion for a new trial after a subsequent trial, and have his bill settled as of the later term. The statute, as it stood when this controversy arose, was, so far as material, as follows: “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.”
The plaintiff, after the final trial, endeavored to preserve- her rights by moving for a rehearing of the first motion for a new trial. This proceeding, however, did not operate to extend her time for settling the bill here presented.
The foregoing considerations dispose of the case. The parties argue quite extensively, and with some bitterness, questions affecting the merits of the Héspeler case, and the regularity of the court’s action in sustaining the first motion for a new trial. These questions are, however, all foreign to the merits of this proceeding. Thereferee’s conclusion of law on this branch of the case must therefore be set .aside, the findings of facts confirmed, and the
.Writ denied.