Warner v. Hutchins

Post, O. J. The. defendant in error recovered judgment in the district court for York county against the plaintiff in error upon a promissory note of which the following is a copy: [673] “$263.16. York, Neb., Noy. 28,1890. “Sixty days after date, value received, I promise to pay to the order of J. C. Kingsley, trustee, two hundred sixty-three and 16-100 dollars, with interest at ten per cent per annum. E. A. Wahner ” It appears from the petition below that previous to the commencement of the action the plaintiff therein, Hutch-ins, succeeded Kingsley, the payee, and, as trustee, became the owner of said note. An answer was filed in which it was in substance alleged that the note sued on was given for the accommodation of the York Canning Company, a corporation; that said corporation being pressed for funds and about to lose valuable property by sale under a decree of foreclosure, it was agreed by the stockholders thereof, including the defendant, to advance the money necessary to discharge the said decree and that said property should be purchased and held by said Kingsley as trustee, for their benefit; that the note above set out was given in pursuance of said agreement and represents his, defendant’s, advancement thereunder, and that the plaintiff below, as successor of the said Kingsley, afterward, without authority, sold and disposed of said property, then of the value of $5,000, realizing therefrom the sum of $1,850, and no more, to the defendant’s damage in the sum of $160. It is further alleged that there was an error in the computation by which said note was executed, for $25.06, in excess of the amount which the defendant should have advanced by the terms of said agreement. There is also an allegation of payment to the amount of $138.58, and a prayer for judgment in the sum of $170. There was a reply, in which it was alleged that the advancements made by the stockholders, including the note of the defendant, having proved insufficient to discharge the indebtedness contemplated by the agreement, the property mentioned was sold in the execution of the trust thereby imposed and the proceeds applied in partial satisfaction of the balance then due upon said indebtedness, and denying the [674] other allegations of the answer. There are other issues made by the pleadings which do not require notice, since the foregoing statement will be found to sufficiently illustrate the rule which must govern in the disposition of this cause. The verdict returned in accordance with the direction of the court was for $129.08, the credit, as appears from statements of counsel, being on account of payments as to which there was no dispute. The evidence, it is conceded, was largely documentary, consisting of the agreement above referred to as well as the records of the corporation, which, although shown to have been received Avithout objection, are not included in the bill of exceptions. It is on the part of the defendant in error contended that the exceptions should, in vieAv of such obvious omissions, be entirely disregarded. That contention has substantial foundation in the decisions of this court. Indeed, it may be accepted as the settled rule that where the bill of exceptions on its face reveals the fact that material evidence has been omitted therefrom, the judgment or order Avill not be reversed for Avant of sufficient proof. (Missouri P. R. Co. v. Hays, 15 Neb., 224; Nelson v. Jenkins, 42 Neb., 133.) Counsel for plaintiff in error, recognizing the soundness of the rule stated, has requested leave to attach to the bill of exceptions copies of all exhibits therein referred to, and the motion in that behalf is submitted in connection with the merits of the cause. We are, however, without authority to entertain the motion or to malee the correction sought. Exceptions, when allowed and certified in the manner prescribed by law, become records of the trial court, which, like the records of all judicial proceedings, are subject to the control of the court or judge by whom they axe made and can neither be corrected nor amended by an appellate tribunal. (Bickel v. Butcher, 35 Neb., 761.) Judgment affirmed.