Zink v. Westervelt

52 Neb. 90 | Neb. | 1897

Ryan, C.

This cause was submitted on an agreed printed abstract under that portion of rule 2 which provides that a cause may be submitted at any time upon a written stipulation of the parties. This abstract began with a statement that on August 18,1894, there was filed in the office of the clerk of the district court of Hall county a petition which was set out in hcec verba. In like manner were described other pleadings. These pleadings were followed by what is termed a decree, and a motion for a new trial ending with a journal entry, reciting the ruling on said motion for a new trial, and an exception thereto. At the close of the abstract is printed the following stipulation, which is the only one signed by the parties litigant: “The above and foregoing constitute the pleadings in this cause, and it is hereby agreed by and between the parties hereto that said cause may be submitted to the supreme court upon a printed abstract containing the pleadings as hereinbefore set forth.” It is required by rule 2 that in the stipulation for a submission thereunder there shall be contained an agreed printed abstract of the record. By the provisions of section 586, Code of Civil Procedure, a final judgment or a final order is recognized as an indispensable part of a record. In a case submitted under the provisions of rule 2, above noted, we have no means of determining what part of the record, has in fact been brought up, except as we are advised by the written stipulation of the parties. (Closson v. Rohman, 50 Neb., 323.) Under a similar rule prescribed by the statutes of 1885 (Session Laws, p. 376, ch. 95, sec. 2) this construction Avas enforced in Ballard v. Cheney, 19 Neb., 58. In the stipulation above quoted there is identified nothing but the pleadings. There is no reference to a journal entry or to a final judgment. These proceedings are therefore

Dismissed.