Donovan v. Sherwin

Maxwell, J. This case is submitted to the court on a motion of the plaintiff to refile the bill of exceptions, and of the defendant to strike out certain affidavits from the transcript because not properly a part thereof. The cause was tried in the court below on the twenty-eighth of October, 1882, before Hon. William Gaslin- and a jury, and a verdict returned in favor of the defendant.. On the thirty-first of that month the plaintiff filed a motion for a new trial, which it is alleged Judge Pound refused to act upon. No bill of exceptions was prepared at this term, nor within forty days thereafter. At the February term, 1883, of the district court of Lancaster county, Judge Gaslin again presided in said court, and the motion for a new trial was overruled and forty days from the rising of the court given to settle the bill of exceptions. The plaintiff claims that the bill was settled within the time fixed by statute, and there [130] fore should be refiled. The transcript was stricken from the files at the July term, 1883, and no additional facts are stated as a cause for refiling so that the court would be justified in refusing to consider the motion, but inasmuch as no opinion was written on the former hearing, we will state the reasons for denying the motion. Sec. 311 requires the party excepting to reduce his exceptions to writing within fifteen days or in such time as the court may direct, not exceeding forty days from the adjournment of the court sine die, etc. The bill is to be prepared by the party excepting at the trial term or within forty days thereafter. The statute of 1881 provides for extending the time in certain cases to eighty days. Now, the trial was had in October, 1882, and the verdict was rendered at that term. It was the duty of the- plaintiff therefore to have reduced his exceptions to writing within forty days from the close of that term and presented the same to the adverse party for amendment or approval. The fact that the hearing on the motion for a new trial was continued to a subsequent term did not relieve the plaintiff from the duty of preparing the bill of exceptions at the time fixed by.statute. The motion to refile must therefore be overruled. II. The motion to strike the affidavit from the transcript must be sustained as not being a part of it. Affidavits must be brought into the record by a bill of exceptions. Ray v. Mason, 6 Neb., 101. Credit Fonder v. Rogers, 8 Id., 34. Aultman v. Howe, 10 Id., 8. Oliver v. Sheeley, 11 Id., 522. Walker v. Lutz, 14 Id., 275. Kyle v. Chase, Id., 528. Sides v. Brendlinger, Id., 491. An exception was made to this rule in R. V. R. R. Co. v. Boyse, 14 Neb., 132, where an affidavit Avas made part of the motion for new trial. That case, however, cannot aid the plaintiff as his affidavits were used merely as evidence. The motion to refile is denied, and. the motion to strike the affidavits from the transcript sustained, and the case being submitted [131] generally we find no error in the record.- The judgment must therefore be affirmed. - Judgment affirmed. The other judges concur.