Yankton, Norfolk & Southwestern Railroad v. State

49 Neb. 272 | Neb. | 1896

Ragan, C.

This is a proceeding in error by the Yankton, Norfolk & Southwestern Railroad Company against the state of Nebraska to reverse a judgment of the district court of Knox county, pronounced against it in favor of the state, for damages sustained by the latter, by reason of the appropriation by tbe railway company, for railway purposes, of certain of its lands in said county.

1. Tbe first assignment of error relates to tbe action of the district court in tbe admission of certain testimony, but we are unable to review tbis assignment, for tbe reason that we bave before us no bill of exceptions. There is in tbe record a paper purporting to be a bill of exceptions, but it is not certified by tbe clerk of tbe district court as being either tbe original bill of exceptions or a copy thereof. In Wax v. State, 43 Neb., 18, it was held: “A bill of exceptions mnst be certified by tbe clerk of tbe trial court as being a part of tbe record in said court, or as being tbe original bill of exceptions in tbe cause, in order that tbe matters therein may be considered by tbis court.” (See, also, to the same effect, Aultman v. Patterson, 14 Neb., 57; Flynn v. Jordan, 17 Neb., 518; Hogan v. O’Niel, 17 Neb., 641.)

2. Tbe second assignment of error is that tbe court erred in taxing tbe costs of tbe action to tbe plaintiff in error. Tbe judgment of tbe district court is in tbe usual form, — that tbe plaintiff below bave and recover of tbe defendant below a named sum, with costs, taxed at f-. Tbe record does not disclose what tbe costs were. So far as tbe record shows, the railroad company made no motion in tbe court below to retax these costs. If any reason existed why tbe party who recovered in the court below should not recover bis costs, that fact should bave been made to appear to tbe trial court by motion to retax, and if tbe railroad company was dissatisfied with tbe ruling of tbe court on that motion it should bave taken an exception to such ruling and presented it here. In Real v. Honey, 39 Neb., 516, it was held: “In order to review tbe question of taxation of costs, a motion to retax tbe costs must be made in tbe trial court and a ruling obtained thereon by that court.” To tbe same effect, see Ins. Co. of North America v. Bachler, 44 Neb., 549.

3. Tbe third assignment of error relates to tbe form of tbe verdict on which tbe judgment sought to be reversed was rendered. We have failed to discover any material defect in this verdict affecting the validity of the judg'ment. No objection to the reception and recording of the verdict was made at the time it was returned into the trial court, and after the verdict was received without objection it was then too late to urge, either upon the trial court or this court, objections to the form of the verdict See Roggenkamp v. Hargreaves, 39 Neb., 540, where it was held: “Objections to the form and terms of a verdict should be made in the court below at the time of rendition in order to be available on error to this court.” To the same effect, see Brumback v. German Nat. Bank of Beatrice, 46 Neb., 540; Jones v. Driscoll, 46 Neb., 575.

There is no error in the record, and the judgment of the district court is

Affirmed.