No. 7641 | Neb. | Feb 4, 1896
This cause was submitted on the motion of the defendant in error to affirm the judgment of the trial court. We have held, where an examination of the record of a cause brought to this court for review discloses that the petition in error presents-no question for consideration on a motion to dismiss the proceedings, the cause will be considered on its merits, and the judgment affirmed. (Upton v. Cady, 38 Neb., 209" court="Neb." date_filed="1893-11-08" href="https://app.midpage.ai/document/upton-v-cady-6648594?utm_source=webapp" opinion_id="6648594">38 Neb., 209; Erck v. Omaha Nat. Bank, 43 Neb., 613" court="Neb." date_filed="1895-02-05" href="https://app.midpage.ai/document/erck-v-omaha-national-bank-6649688?utm_source=webapp" opinion_id="6649688">43 Neb., 613.) The rule stated above is a salutary one, and its enforcement will tend to discourage the bringing of cases to this court for delay merely.
The petition in error herein contained forty-eight assignments, of which four question the sufficiency of the evidence to support the verdict;, three attack the rulings of the court upon the ad-" mission of testimony; two relate to challenges of jurors; twenty-seven are predicated upon the giving and refusing of that number of instructions,, while but one instruction is copied into the transcript; six are based upon submitting to the jury special findings from 1 to 6 inclusive, and no such findings have been certified up; one that the verdict is contrary to the fifteenth instruction, no such instruction being in the record; and one that
“In the District Court of Lancaster County, State of Nebraska.
“The Buckstaff Brothers Manufacturing Company v. State Insurance Company of Des Moines.
Stipulation.
“It is hereby stipulated and agreed that this case be submitted to the jury now in the box in the case of the Buckstaff Brothers Manufacturing Company versus the American Fire Insurance Company of New York, upon the record already made in the said case; the jury to consider all of the oral testimony and exhibits admitted in said case. All of the exhibits admitted or offered in. said case are to be taken and considered as applicable to this case; all of the testimony offered, whether oral or written and excluded by the court, shall be considered as offered in this case;, and all of the rulings of the court during the trial of said American Fire Insurance Company’s case shall be considered as having been made in this case, and all of the exceptions to said testimony and said rulings shall be considered as in this*4 case; the intention being that this case, when submitted, shall be upon the same record in all respects, with the same rights and exceptions to both parties as in said case of Buckstaff Brothers Manufacturing Company versus the American Fire Insurance Company of New York. It is understood that the defendant makes no defense by reason of insufficiency of proofs of loss, and no further testimony is to be introduced in this case, ■excepting only the insurance policy sued on. This case is to be submitted upon the instructions of the court to be given to the jury, and it is understood that the instructions asked for by both parties in said American Fire Insurance Company case shall be considered as asked for by the respective parties in this case.
“Buckstaff Brothers Manufacturing Company,
“By Chas. O. Whedon, Its Attorney. “State Insurance Company,
“By J. Fawcett, Its Attorney.”
It appears that a bill of exceptions was settled •and allowed in the case mentioned in the foregoing stipulation, and it is argued that the same ■should be treated and considered as a part of the record in the case at bar. Clearly there is nothing-in the above stipulation which will justify such a conclusion, although such may have been the intention of the parties when they entered into the same. It was contemplated that other and additional testimony should be adduced in this case than was given in the case of the American Fire Insurance Company, namely, the policy herein ■declared upon. A proper bill of exceptions in That case, therefore, would not include all the evidence in the case at bar. There is no order of
It is said, in argument, the stipulation was entered into “to relieve the court, counsel and clients, and the interested public, of the repetition of an endless amount of time, labor, and expense.” The motive was indeed a laudable one, and it is to be regretted that the failure to make the stipulation a part of the record prevents us from determining whether the judgment was right or wrong. The court, however, is not to blame, since this question of practice had already been settled by repeated decisions. Nor was it necessary, under the views herein expressed, as counsel suppose, that the ponderous and voluminous bill of exceptions in the case of the American Fire Insurance Company should be duplicatéd at an enormous and needless expense, in order to have preserved the rights of the parties. No reason occurs to us why it might not have been brought into this record, without copying, by settling of a brief bill of exceptions herein making it a part thereof by referring to, and identifying, the same in such a manner that there could possibly be no mistake as to what is referred to. Even if this were not so,
Affirmed.