72 Neb. 47 | Neb. | 1904
Lead Opinion
This is an appeal from a decree of the district court for Sarpy county entered on November 25, 1903, setting aside a judgment in ejectment of that court entered on November 2, 1901, and ordering a new trial. The findings of the trial court are that, after a trial by jury, the defendants recovered a judgment against the plaintiff here; that a motion for a new trial was filed and overruled; that Zweibel and his attorneys exercised due diligence to procure a transcript of the record in that case for the purpose
The defendants on their appeal say, in the first place, that the petition fails to state facts sufficient to constitute a cause of action. The basis of this claim is the fact that Zweibel’s petition, filed in the district court for Sarpy coun^ptjd not allege any error in the ejectment action in which the^ judgment was rendered; that, consequently, there was no right shown to review it, and no prejudice in the failure of the clerk to prepare a transcript. The petition shows the beginning of an action to recover certain described premises; the filing of a general denial, and a trial before Judge Baker in the Sarpy county district court; a full hearing and a verdict, it being the second trial of the case; the filing of a motion Avithin 3 days for a new trial, which motion is alleged to have set up certain errors of the court and irregularities at the trial; “that among the errors alleged Avas that the verdict was contrary to law; that the verdict was not sustained by the evidence, and that the court erred in giving each of the following instructions, to wit, 1, 2, 3, 4, 5, 6, 7, 8 and 9; said in
The only allegation of any error in the ejectment proceedings is the implied one embraced in the allegation that such error Avas set up in the motion for a neAV trial. There
Besides the claim that no cause of action is set out, it
It is finally urged on appellant’s behalf that the decree is not sustained by sufficient evidence; that the evidence, as a whole, entirely fails to establish that due diligence on plaintiff’s part Avould not have obtained him a full transcript; that in fact the evidence discloses nothing now missing except some refused instructions, and that due diligence on the part of plaintiff and his counsel Avould have produced all of the rest of the missing records, and have reproduced these lost instructions, at least in substance. It does appear, hoAvever, that the instructions tendered by the plaintiff in his behalf at the hearing of the ejectment case are lost, and it appears that his counsel are unable to “reproduce” them. It also appears that the pleadings and instructions given Avere returner! to' the clerk’s office by Wedgwood after the 6 months for appeal had expired. It is tolerably dear that copies of this record could have been obtained and that it was the duty of the plaintiff to secure them, but that, as to the refused instructions, they are not to be had, and none of the instructions Avere at hand, until they Avere returned by Wedgwood after the time for filing transcript had elapsed.
The constitution in guaranteeing to every litigant a revieAV of his case in the supreme court (constitution, art. I, section 24) would seem to indicate that equity Avould interfere, even to the extent of granting a new trial, to preserve such a right of review, if it had been prevented without fault of the party himself. In the present case the
The expressions of this court in Curran v. Wilcox, 10 Neb. 449 would indicate the recognition of an absolute right to review in all cases, though in that case there was an allegation that the judgment complained of was rendered upon issues not pleaded.
In Holland v. Chicago, B. & Q. R. Co., 52 Neb. 100, a new trial was granted for simple inability to get a bill of exceptions in the former one. It does not appear that any specific error in the judgment was pleaded, and the
It is. recommended that the action of the trial court be affiirmed.
For the reasons stated in the foregoing opinion, the action of the district court is
Affirmed.
Rehearing
The following opinion on motion for rehearing was filed January 5, 1905. Rehearing denied:
The appellants in this ease complain of a decree in equity in the district court for Sarpy county setting aside a former judgment in an action at law in that court and granting a new trial th<Toin. In the opinion of the commissioner upon the former hearing it was-said that, in the absence of any showing of error upon the trial at law, “the loss, without fault, of one’s constitutional right of review would seem sufficient to warrant a new trial, and that prejudice will he presumed.” The reargument was ordered mainly for the purpose of further considering this statement of the law as applicable in this case. In the decisions of this court referred to by the commissioner and in other cases cited in the briefs, the precise question here discussed was not presented. The language used must be understood in the light of this fact. The constitutional guarantee is not for the purpose of enabling parties to
4. It was found by the trial court that the plaintiff himself was without fault, that this misfortune was not caused by any negligence of his own. In the opinion of the commissioner the. evidence is reviewed and the conclusion of the trial court supported. For the reasons then-given, we conclude that the finding of the trial court upon this point ought not to be disturbed.
The motion for rehearing is overruled.
Rehearing denied.