Romberg v. Fokken

Norval, J.

This is an action at law by a lessee against his lessor to recover damages for the failure of the defendant to put the plaintiff in possession of the leased premises according to the stipulations in *199 the lease. From a verdict and judgment against the defendant, he prosecutes error to this court.

A reversal is sought upon two grounds:

1. The verdict is contrary to, and is unsupported by, the evidence.

2. The court erred in the giving and refusing of ■certain instructions.

The assignment that the verdict of the jury is not sustained by sufficient evidence cannot be considered by this court, for the reason that the bill ■of exceptions purporting to contain the evidence adduced on the trial is not authenticated. That which purports to be a bill of exceptions, and which is attached to the transcript, does not appear to have been filed in the district court, nor has the clerk of that court certified that it is •either the original bill of exceptions settled and allowed in the cause or a copy thereof, as required by law. The pretended bill, therefore, must be ignored, and cannot be considered for any purpose. (Aultman v. Patterson, 14 Neb., 57 ; Hogan v. O’Niel, 17 Neb., 641 ; Flynn v. Jordan, 17 Neb., 518 .) Rut it may be said the omission of the clerk’s certificate authenticating the bill must be deemed to have been waived by the parties, inasmuch as they have conceded the validity of the bill of •exceptions by raising no objections thereto in this •court. Yates v. Kinney, 23 Neb., 648 , recognizes such rule, but we do not hesitate to say that it is unsound. In the exercise of its appellate jurisdiction, this court reviews the proceedings of the ■district court, and our only means of ascertaining what proceedings were had and taken in the trial ■court in any case, or what pleadings were filed therein, is the transcript of the record of that court, duly authenticated by the proper officer. *200 If the parties may waive the certificate of the clerk of the district court to the original bill of exceptions, then there is no reason why they may not likewise waive the authentication of the transcript of the final judgment or order sought to be reviewed and the pleadings in the case. The statute requires both the transcript and the bill of exceptions to be authenticated by the certificate of the cleric of the district court, and we have no-right to ignore or disregard its mandatory provisions. (Mo ore v. Waterman, 40 Neb., 498 ; Otis v. Butters, 46 Neb., 492 ; Martin v. Fillmore County, 44 Neb., 719 ; Yenney v. Central City Bank, 44 Neb., 402 .)

There is another reason why this evidence cannot be considered. It has been frequently asserted by this court that .the sufficiency of the evidence to support the verdict, as well as errors in the giving and refusing of instructions, must be called to the attention of the trial court by a motion for a new trial. The record shows that a motion for a new trial was overruled by the court below, and while a paper purporting to be such a motion is contained in the transcript, it lacks; authenticity. Attached to the transcript is the following certificate:

“State oe Nebraska, \ County oe Cuming, j ‘

“I, Emil Heller, clerk of the district court of Cuming county, do hereby certify that the foregoing is a true transcript of the petition, answer, instructions, and journal entries as the same are of record and on file in my said office.

“Witness my hand and the seal of said district court, this 2d day of April, A. D. 1892.

“Emil Heller, “Cleric of the District Court.”

*201 It will be observed that the certificate makes no reference to the motion for the new trial, but particularly enumerates which papers contained in the transcript are certified to be true copies of the originals on file. In this condition of the record, we are unable to say that the alleged motion for a new trial included in the transcript is a copy of the one passed upon by the district court, therefore it cannot be considered by us. (Haggerty v. Walker, 21 Neb., 596 ; Chamberlain v. Brown, 25 Neb., 434 ; Burlingim v. Baders, 47 Neb., 204 .) It follows that neither the instructions nor the evidence can be reviewed. No question which has been argued in the brief is presented by the record. The judgment is

Affirmed.