44 Neb. 766 | Neb. | 1895
A judgment of reversal was entered in this court at the January, 1894, term (see 39 Neb., 193); but a rehearing was thereafter ordered upon discovering that a material part of the record had been overlooked by us. The essential facts areas follows: At the May, 1890, term of the district court of Douglas county a trial was had to a jury upon the issues stated in the opinion heretofore filed, resulting in a verdict for th.e plaintiff in the sum of $813.02, the amount claimed by him, with interest. Afterwards, and within three days, a motion for a new trial was made by the defendants, in which the following grounds were assigned.
1. The verdict is not sustained by sufficient evidence.
2. The verdict is contrary to law.
3. Errors of law occurring at the trial, duly excepted to.
4. The court erred in giving certain instructions to which the defendants excepted.
5. The court erred in refusing to give certain instructions asked by the defendants, to which defendants duly excepted.
During the same term, but more than three days subsequent to the finding of the verdict, the defendants were permitted, over the objection of the plaintiff, to amend their motion for a new trial by specifically numbering the instructions referred to in the fourth and fifth specifications thereof. At the September, 1890, term an order was made sustaining the motion for a new trial and setting aside the verdict for the plaintiff. At the February, 1891, term the cause, again coming on for trial, was, by written stipulation, submitted to the court, a jury being waived, on the evidence taken at the previous trial, which had been preserved in the form of a bill of exceptions, duly authenticated by the trial judge. The second trial resulted in a judgment for the defendants, based upon certain findings of fact. The record shows neither a motion for a new trial,
“1. The court erred in permitting-the defendants to file the amended motion for a new trial.
“ 2. The court erred in granting a new trial.
. “3. The court erred in entering said judgment and order.” • ■
It is true an exception was noted to the entering of the judgment on the findings, but that fact alone will not entitle the plaintiff to have said judgment reviewed'in this proceeding. A-motion for a new trial is just as essential as the basis of proceedings in error where the final judgment or order rests upon findings by the court as upon the verdict of a jury. ( Weitz v. Wolfe, 28 Neb., 500; Carlow v. Aultman, 28 Neb., 672; Gaughran v. Crosby, 33 Neb., 34.) The plaintiff, from his failure to interpose proper objections thereto, is presumed to have been satisfied with the findings and judgment of the district court. But assuming what cannot be conceded, that the regularity of the order setting aside the verdict is presented by this record, we discover therein no error calling for a reversal of the judgment. It will be assumed, also, for the purpose of this investigation, that the second, or amended, motion for a new trial was without authority of law, and is in fact a mere nullity. Such being the case the inference is that the order complained of is based upon the original 'motion, which, as we have seen, is identical with the second, except that the instructions therein referred to are not specifically numbered. Our investigation is accordingly limited to a single inquiry, viz., were the specifications of the motion sufficient to entitle the defendants to an examination by the trial court of the questions thereby sought to be raised? The important distinction between the rules applicable to petitions in error and motions for new trials is frequently overlooked.
It is the settled rule of this court that alleged errors will
Appirmed.