3 Neb. 339 | Neb. | 1874
This is an action by petition in error, alleging errors to have occured on the trial of the cause in the probate court. It appears from the record that no jury was demanded, but that the cause was tried before the judge. The errors complained of, mainly, relate to the ruling of the judge upon the admission or rejection of evidence offered on the trial of the cause. Exceptions were taken at the time to the ruling of the judge, and a bill of exceptions was prepared and signed by the judge. The question, therefore, now presented for determination by this court is, whether in a case, not tried by a jury, in the probate court, exceptions to the opinion of the judge upon questions of law arising during the trial, can properly be made the subject of a bill of exceptions.
The act concerning the organization, powers, and jurisdiction of probate courts, provides that probate judges
Under statute of Westm. 2, which gave a bill of exceptions to “any one impleaded before the judges,” it is held that this right does not extend to an inquiry of damages executed at the bar of the court, although such
The statute does not give the right of a bill of exceptions to the ruling of the probate judge or justice of the peace, upon questions of law arising during the trial before them, in cases not tried before a jury, and hence, such bill of exceptions cannot be considered in an appellate court, because it is an act without authority of law, and a nullity.
But it is contended that the provisions of the general code of civil procedure, under title XYI, entitled “Errors in Civil Cases,” are sufficiently broad in their scope and effect to support a petition in error upon alleged errors taken by bill of exceptions, during a trial before a justice of the peace without a jury. Section 580 provides that “ a judgment rendered or final order made by a probate court, justice of the peace * * , * may be reversed, vacated or modified by the district court.” But it is clearly seen that under these statutory provisions it is only upon a judgment rendered or final order made, a petition in error is allowed; and the order must be one which affects a substantial right in an action, which in effect determines the action and prevents a judgment, or which affects- a substantial right in a special proceeding, or upon a summary application in an action after judgment; and in such case the petition in error brings up to the appellate court the judgment or decision of the inferior court, together with the transcript of the record, and bills of exceptions constitute no part of such record unless made so by some statutory provision. .But these statutory provisions, under title XYI of the
It is, however, alleged as error, that A. N. Eerguson, who tried the case, had no authority to try and determine the same and render judgment. There is nothing in the record showing why he exercised the functions of probate '"judge; and it does not appear that any exception as to his right to try the case was taken at the time. It must therefore, be presumed that by reason of the temporary absence of the probate judge from the county, the county commissioners under the 35th section of the act relative to probate courts, appointed him to act in place of the probate judge during his absence; and the statute confers on such appointee all the powers, and subjects him to the same duties, restrictions and liabilities, as prescribed by law respecting probate judges. ’ Hence, upon such appointee during the time he exercises the functions of probate judge, under such appointment, the act confers all the powers and duties, and subjects him to all the restrictions and liabilities prescribed by law respecting probate judges. "We do not discover any error in the judgment of dismissal of the case by the district court.
Judgment affirmed.