Childerson v. Childerson

Harrison, J. The plaintiff herein alleges the relationship of husband and wife as existing between himself and the defendant; that, as the outcome of difficulties and dissensions during the course of their married life, the wife left the home and abandoned the plaintiff,-and he, as a consideration for her return to him and the family relations and duties and continuance thereof and therein, did, during the163 year of 1889, convey by deed to the wife certain lands in Clay county, Nebraska; that on or about, the 8th day of December, 1891, the defendant violated her promise and contract and again departed from the home of the parties, and abandoned the plaintiff, by which act he became entitled to the property conveyed to her. Hence he-prays a decree against her, requiring its reconveyance to him. The wife, in answer to the pleas of the plaintiff herein, admits the assumption of the marriage relation by and between plaintiff and herself, and that after some years of married life-disagreements and contentions arose and prevailed, and finally to such ah extent that she forsook the home and her marital rights, and also the duties, or was forced so to do, but she affirmatively states that at the time of the marriage to plaintiff she was the owner of certain property, both personal and real, the proceeds of which the plaintiff reduced to his possession and used in such manner and for such purposes as he desired,, and the lands which the plaintiff conveyed to her were so conveyed to her in payment and to reimburse her for the appropriation of the proceeds of her separate property. To this answer of defendant there was filed a reply which in effect denied the affirmative matter contained therein or-avoided its force, and reasserted the substantive-matters set forth in the petition in so far as it related to the consideration for the conveyance of the lands from plaintiff to defendant. At the-close of the trial of the issues the court rendered, a decree favorable to defendant, by which the-action was dismissed and the costs taxed against the plaintiff, and the case is presented here for review. 164 The record here is entitled as in an appeal, bnt a petition in error was filed and a summons in error was caused to be issued. Under such circumstances it will be presumed that the plaintiff ■has elected to present the case to this court by error proceedings. (Woodard v. Baird, 43 Neb., 311; Monroe v. Reid, 46 Neb., 316; Burke v. Cunningham, 42 Neb., 645.) If this is treated as an error proceeding, then the errors assigned in the petition cannot be reviewed, for the reason that no motion for a new trial was filed in the district court. Where a party does not move for a new trial in the lower court, he cannot raise any question on error to this court. (Zehr v. Miller, 40 Neb., 791, and cases cited; Brown v. Ritner, 41 Neb., 52; Scroggin v. National Lumber Co., 41 Neb., 195; Appelget v. McWhinney, 41 Neb., 253.) The transcript in the case at bar was filed within the time for effecting appeal to this court, and if we were at liberty under the rules to consider it as an appeal, the questions raised and discussed in the brief of counsel for the unsuccessful party in the trial court all depend for their proper understanding and decision on an examination and consideration of portions of the evidence introduced at the trial. This necessitates in any case the presentation of the evidence to this court, properly preserved in a duly authenticated bill of exceptions, and in the absence of such bill of exceptions the evidence need not be investigated. There was no certificate of the clerk of the district court attached to what purported to be the bill of exceptions. It was not legally authenticated and is not properly before this court. (Martin v. Fillmore County, 44 Neb., 719; Yenney v. Central City Bank, 44 Neb., 402; Felber v. Gooding, 47 Neb., 38.) We 165 have, however, reviewed the testimony, and onr conclusion is that, as to the points argued by the complaining party, it is conflicting, but sufficient to sustain the findings and judgment of the trial court, and had the case been suitably presented here for review as to such questions, the findings and judgment would not have been disturbed or reversed. The judgment of the lower court is Affirmed.