Rubel v. Willey

Conaway, Justice. • The property in controversy in this action was seized as the property of James A. Jones by Dennis H. Willey, sheriff of Sheridan County, and the original defendant herein, by virtue of a writ of attachment issued at suit of the Sheridan Brewing Company, substituted defendant herein, against the property of the said Jones. It is a part of a quantity of property conveyed to plaintiffs in error by John J. Dolan, as agent for Jones, in payment of antecedent indebtedness of Jones to plaintiffs in error, amounting, as found by the trial court, to $265.00. The trial court fixes the value of the property so conveyed at $600.00, and a special interest of defendant in error therein at $291.00, for which last mentioned amount, with interest at twelve per cent, per annum from September 26, 1893, and cost, judgment is given in favor of defendant in error. The assignments of error are based partly upon the insufficiency of the evidence to sustain the findings and judgment, and partly upon errors of law occurring at the trial. These are grounds for a motion for a new trial, and no motion for a new trial is authenticated to this court by appearing in the bill of exceptions. The rules of this court, by express legislative enactment, have the force of statutes. Rule 13 provides as follows: “Nothing which could properly have been assigned as a, ground for a new trial in the court below will be considered in this court unless it shall appear that the same was properly presented in the court below by a motion for a new trial, and that the motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions.” [430] It is established by a long line of concurring decisions that such errors as may be presented by a motion for a new trial will not be reviewed in an appellate court unless the motion for a new trial is embraced in the bill of exceptions. See Seibel v. Bath, decided at this session. This is not done in this cause. A court sometimes suspends the'operation of its own rules to avoid an inequitable result. We have looked through the record in this ease and do not find it to be a ease of that character. The finding of the trial court that the sale of the attached property, before the levy .of the writ of attachment was unauthorized, and for an inadequate consideration, and void as to attaching creditors, is sustained by the evidence. The judgment of the district court is therefore affirmed. G-eoesbeck, C. J., and PotteR, J., concur.