Walker v. Morse

33 Neb. 650 | Neb. | 1892

Maxwell, J.

This action was brought in the county court of Custer county by the defendants in error against the plaintiffs in error to recover the sum of $575. An attachment was issued against the property of the plaintiffs in error, who made a motion supported by affidavits to dissolve the same. This motion on the hearing was overruled and the attachment sustained, and twenty days given the plaintiffs in error to prepare a bill of exceptions. The bill was prepared and signed by the judge and filed in the district court, where, upon motion of the attorneys for the defendants in error, it was stricken from the files. Final judgment was rendered February 16,1889, and the attachment thereupon sustained. The certificate of the county judge to the bill, the motion to dismiss, and his ruling'thereon, are as follows:

“ State of Nebraska, 1 Custer County.}

“ I, John Reese, county judge of Custer county, Nebraska, do hereby certify that the foregoing is a true and correct copy of all the evidence filed and considered in the hearing on motion to discharge the attachment. in said cause, and I hereby allow the foregoing bill of exceptions.

“Dated this 8th day of April, 1889.

“[seal.] John Reese,

“County Judge.”

The transcript was filed April 8, 1889. The motion is as follows: “ The defendants move the court to strike from the files of this cause the pretended bill of exceptions, for the reason that the same is improperly filed in this action and because the same was not made and signed as required by law, and because same was made and filed in this action after the petition in error was filed and after summons in error was issued and returned, and because the same is not made a part of the transcript and record filed in this case.” It will be observed that the motion on behalf of the defendants in error is very general in its terms. The grounds are, “ That it was not made and signed as required by law.”

In what respect there had been a failure to comply with the law we are not informed. This is a technical motion made upon technical grounds, and should itself be free from fault. It should specifically point out the defect complained of, and where it fails to do so it should be overruled, unless there is a total omission of some essential requirement of the law, such as the. failure of the judge to sign the bill. Neither are the specific objections in the motion well taken. The law gives a party whose lien is divested twenty days after the order dissolving an attachment in which to file the transcript, etc., in the district court, and the fact that the different papers are filed on different days, so that all are filed within the tfme required, does not prejudice the adverse party. In this case the attachment was sustained, but the grounds therefor could be reviewed by ordinary proceedings in error after final judgment in the case. It is not the business of the court to search for causes to defeat an action for an alleged defect in the proceedings, but rather to sustain the same as far as possible in order than the merits of the controversy may be determined in that action. The court, therefore, erred in striking the bill of exceptions from the files, and as that lies at the foundation of the attachment proceedings which are sought to be reversed, the judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.