« AnteriorContinuar »
ASSOCIATE JUSTICES. ROUJET D. MARSHALL.
WILLIAM H. TIMLIN. ROBERT G. SIEBECKER.
JOHN BARNES. JAMES O. KERWIN.
AAD JOHN VINJE.
SUPREME COURT OF NEBRASKA
1. SITTINGS OF THE COURT.-The reg. | interest; but this power will not be exerolar public sessions of this court will be cised except in cases of grave import and held on the first and third Mondays of each serious urgency; and may also advance cases month at 9 o'clock a. m., standard time, dur-where it is apparent that if not advanced, ing each term, except at the beginning of the litigation may be fruitless. the respective terms, when the first day of
6. TIME FOR ORAL ARGUMENT.-In the session shall be on Tuesday.
the oral argument of a cause, the time al2. SUBMISSION OF CASES-A cause lowed the parties on each side shall not exshall be regarded as regularly reached for ceed thirty minutes, unless for special reasubmission at the expiration of the time sons the court shall extend the time. Oral hereinafter provided for the service and fil- arguments on a motion will be limited to ing of briefs.
five minutes on a side. 3. DEFAULTS.- Whenever a cause is 7. MOTIONS. a. Notice of-Every appliTeached and the brief of the party having cation for an order in any case shall be in the affirmative is not on file, the judgment writing, and except as to motions for a rewill be affirmed or the proceedings dismiss- hearing, shall be granted only upon the filing ed, unless otherwise ordered on sufficient of such application at least two days before stowing. When default has been made by the hearing, together with due proof of servthe other party and there is due proof of ice of notice on the adverse party or his service of process and the briefs of the par. attorneys at least three days before the hearty holding the affirmative are on file with ing. Motions will be heard only during the proof of service thereof within the time pro- first week of each sitting of the court. vided by rule 9, he may proceed ex parte. b. Form of—The notice herein provided for The hearing of no cause shall be delayed by shall conform to the provisions of section default of either party in serving or filing 574 of the Code of Civil Procedure and shall briefs. To avoid such result the case will be accompanied by a copy of the motion with be disposed of as if the delinquent party's copies of all affidavits which are to be used brief had not been served and filed; provid- upon the hearing. It may be served by a ed that the court may under special circum- bailiff of this court, or by any sheriff or constances and on suitable terms otherwise or-stable in this state, or by any person; in
the latter ca se, however, the return must be 4. ORDER OF HEARING.—The court, in under oath. Fees for service of said notice advance, shall, by order, designate what shall be allowed and taxed as for the service cases shall be submitted and when, having of summons in proper cases. reference to the order of time in which such c. Mandamus-Notice-In all cases of apcases were originally docketed. Advanced plication to this court for a writ of mandacases and cases in which rehearings shall mus, a reasonable notice must be given to have been granted will be placed on the call the respondent of the time when it will be for the sitting of court next following the made, accompanied by a copy of the affidavit expiration of the time for serving briefs as on which it is based, unless for special reaprovided by the rules.
sons it is otherwise ordered. 5. ADVANCEMENT OF CASES.-Crim d. For rehearing-All motions for rehearinal cases will stand advanced for hearing | ing must be printed and may be filed as of without motion. The court will, on motion, course at any time within forty days from which motion shall be submitted without ar- the filing of the opinion or rendition of the gument, advance for hearing cases which judgment of the court in the case. Such mohave previously been regularly upon the dock- tion must specify distinctly the grounds upon et of the court. The court will likewise ad- which it is based and include the brief in vance cases within the original concurrent support thereof. Fifteen copies must be filjurisdiction of this court, which have beened with the clerk. In original cases where prosecuted in the district court and brought the error assigned is that the court erred to this court by appellate proceedings. The as to the legal principles involved or in its court may also in its discretion advance oth application of the law to the facts, the foreer cases if they involve questions of public going provisions shall apply; but as to all
other assignments the motion must be made court upon satisfactory showing of diligence as provided in section 316 of the Code, and and at his own costs. may be typewritten.
g. How printed-All briefs shall be printed 8. MANDATES.—No mandate shall issue on good book paper on pages eight inches in any civil case during the time allowed for wide and eleven inches long, small pica type, the filing of a motion for rebearing, or pend-leaded lines; the printed matter to be four ing the consideration thereof, unless special- inches wide and seven inches long, with a
ordered by the court, or stipulated by the margin of two inches on each side and end; parties.
but the type in which extracts are printed 9. BRIEFS. a. Time of service-At the may be small pica solid or brevier leaded. time of docketing each civil case the clerk The heading of each brief shall show the tiof this court shall estimate the probable date tle of the cause, the county from which the on which the same will be reached for hear-cause was brought, the name of the trial ing, and thereupon fix and enter on the ap- judge, the names of counsel filing the brief pearance docket the time, to be known as and shall also indicate in whose behalf the rule day, within which the plaintiff, appel brief is filed. lant or relator shall serve his brief of points h. References and citations—Each brief which shall be separately stated and number shall by number designate the several pages ed, together with his citations in support of the record containing matter bearing upon thereof on the opposite party or his attorney the questions discussed in such brief. Every of recor:1, which rule day shall be not less reference to an adjudicated case shall be by than ninety days before the date of hearing the title thereof, as well as by the volume and so estimated by the clerk. Within sixty
page where it may be found, and the particudays after rule day or within sixty days lar edition of any text-book referred to must after such service the opposite party shall be given in connection with the cited page or serve his brief on the first party who may section thereof. reply thereto within ten days thereafter, at his own expense, except in case of cross-ap
j. Cost of printing-When the parties or peal when costs shall be taxed as usual for their attorneys shall furnish their printed the answer brief of cross-appellee.
briefs and abstracts in conformity to the
rules of this court, it shall be the duty of the b. Criminal cases—In criminal cases the clerk to tax a printer's fee at the rate of one fortieth day after the docketing of the case dollar for every five hundred words embracshall be rule day, by which day the plaintiff ed in a single copy of the same, against the in error shall serve his brief. The state shall unsuccessful party, not furnishing the same, serve its brief in thirty days thereafter.
to be collected and paid to the successful parC. Advanced cases—In advanced cases rule ty as other costs. No costs shall be taxed for day shall be the thirtieth day after the order printing briefs or abstracts not printed, servof advancement is entered, unless the courted and filed in conformity with the foregoing shall otherwise order, by which day the ap-rules. When unnecessary costs have been pellant shall serve his brief. Appellee shall made by either party the court will, upon apserve his brief in thirty days thereafter. plication, order the same to be taxed to the
d. When filed—Fifteen copies of each brief party making them, without reference to the so prepared by either party, together with disposition of the case. proof of service of the same on the opposite 10. SECURITY FOR COSTS.-In each party, shall be filed in the clerk's office before case brought to this court the appellant, or the case is submitted.
relator, shall, before the entry of the same e. On rehearing-Within thirty days after upon the docket, give security for costs by a rehearing has been allowed, the party hold-filing a bond in the sum of $50.00 with one ing the affirmative may serve a printed brief ment of the costs of this court, which bond,
or more sureties, conditioned for the pagof his points and citations on the opposite in cases brought on error or appeal, must be party or his attorney of record, by whom in turn a like brief in answer may be served obligation of the surety shall be complete,
approved by the clerk of this court. The within thirty days after the service of the
simply by endorsing the summons in error first required brief, or after the service of a notice that the party holding the affirmative or notice of appeal, or by the execution of a will stand on his original brief, to which an. be bound for the payment of all costs which
formal bond for costs, and such surety shall swer brief the first party may reply within ten days at his own expense. Fifteen copies relator, whether either of them obtain judg
may be adjudged against the appellant, or of each brief so prepared and served on re- ment or not, and after final judgment this hearing, together with proof of service, shall be filed in the clerk's office before the case is ent, or any other person having a right to
court on motion of the appellee, or respondsubmitted.
such costs, or any part thereof, after ten | f. Leave to file-A party in default for days' notice of such motion, may enter up want of briefs shall only be permitted to judgment in the name of the appellee, or the
ther, against the surety for costs, his execu- | notice of appeal has been filed in the district tors, or administrators for the amount of the court within ninety days after the rendition costs adjudged against the appellant, or the of the judgment or decree, the clerk shall isrelator, or so much thereof as may remain sue a notice of appeal which shall designate unpaid, and for accruing costs. Execution as appellants the names of the parties joinmay be issued on such judgment, as in other ing in the appeal, and as appellees the names cases for the use and benefit of the persons of all other parties. It shall also designate entitled to such costs. But these provisions the court from which the appeal is taken, the shall not apply in causes where a bond or date of judgment appealed from and sepaundertaking has been filed in the court be- rately state the names of the parties plaintiff low, in accordance with the provisions of sec- and the parties defendant respectively in the tions 588 and 677 of the Code of Civil Pro- district court. The notice shall be returnable cedure, where such bond is conditioned to pay within thirty days after it is issued, and costs, but in such causes the transcript filed shall be served upon the appellees named must show the giving of such bond or under-therein or their attorney or attorneys of rectaking, with the names of the sureties there-ord in the district court. The service shall be on. Besides the security for costs above re-made by the sheriff of the county in which quired to be given when cause is docketed, the parties or attorneys may be found and as the party docketing such cause shall deposit provided by law for the service of summons with the clerk $10.00 to cover clerk's costs in civil actions in the district court. The isthat may be made by such party in the cause; suing and service of the notice may be waivand if the deposit shall at any time be ex-ed by writing, signed by the parties to be serv. hausted by the party making the same, the ed, but neither such waiver nor the filing of clerk may from time to time require such notice of appeal in the district court will disparty to deposit a further sum of $5.00. Up- pense with the filing of the præcipe. on the termination of a cause any sum re 15. ATTORNEYS OF RECORD BELOW maining from such deposit not applicable to ATTORNEYS IN THIS COURT.-The attorthe clerk's costs incurred by the party mak. neys of record and guardians ad litem of the ing the deposits shall be returned to him.
respective parties in the court below shall be 11. CAPITAL CASES-SUSPENSION OF deemed the attorneys and guardians of the SENTENCE.-In all criminal cases brought same parties respectively in this court, until on error to this court, where it appears that others are retained or appointed and notice the court below has passed sentence of death thereof served on the adverse party. upon the plaintiff in error, it shall be the duty of the clerk to enter the constitutional suspension of sentence upon the journal and he shall immediately transmit to the officer
ABSTRACTS. charged with the execution of the sentence 16. In all cases the party bringing a cause a certified copy of such suspension.
into this court shall print and furnish a com12. QUESTIONS NOT INVOLVED IN plete abstract or abridgment of the record LITIGATION.—Only questions involved in with references to the pages of the record matters of actual litigation before the court abstracted. And where the record contains will be entertained or judicially determined, the evidence, it shall be condensed in narraand no opinion will be filed in answer to any tive form in the abstract, so as to clearly merely hypothetical question.
and concisely present its substance; provid13. PRÆCIPE.
ed, that in felony cases when the question to a. On Appeal-The party or parties appealing sball file with the tran- be presented is as to the sufficiency of the script a præcipe which shall state the court evidence the abstract may refer to the bill of from which the appeal is taken, the date of exceptions with or without abstracting the the judgment appealed from, the names of all
same as the parties elect. Such parts of the
evidence as bear upon other questions preparties and their relations to the case as they
sented must be duly abstracted. The abstract appeared in the court below. The præcipe
shall contain a complete index, alphabeticalshall also specify the party or parties appealing and designate all others made parties to ly arranged, giving the page where each pa
per or exhibit may be found, with the names the appeal as appellees.
of the witnesses and the pages of the direct, b. On Cross-Appeal_Co-parties of appel- cross and re-direct examination. The ablants may join in the appeal or take cross-stract must be sufficient to fully present appeal, or any appellee may take cross-ap- every error and exception relied upon, and peal, by filing with the clerk of this court, it will be taken to be accurate and sufficient within thirty days before the time fixed as for a full understanding of the questions prerule day, a præcipe which shall designate the sented for decision, unless the opposite party Dame of such party as cross-appellant, and shall file a further abstract, making necessathe names of all adverse parties as cross-ap- ry corrections or additions. Such further abpellees.
stract may be filed if the original abstract is 14. NOTICE OF APPEAL.–Upon the file incomplete or inaccurate in any substantial
17. ABSTRACT IN ORIGINAL CASES.- during the progress of the trial. In abstractThe rules herein established for printing ab- ing evidence use the narrative form, abbreviatstracts shall apply to all cases wherein the except such as may be necessary to a correct
ing and condensing, omitting interrogatories court is called on to exercise original juris- understanding of the answers thereto and on diction. In such cases the plaintiff or his which error is assigned.) attorney must print and serve such abstract
Instructions. on the defendant or his attorney within thir
Where no objection is made to the giving or ty days after issue is joined, or, if evidence refusing of any instruction, omit all, but where is taken within thirty days after the evidence there is objection as to the giving or refusal to is returned to this court, and the defendant give any instruction or instructions, set out the or his attorney in like manner if he deem the structions excepted to.
whole charge pointing out specifically the inabstract of plaintiff imperfect or unfair, may within twenty days thereafter print and
Verdict. serve upon the plaintiff or his attorney, such turned the following verdict into court: (Štate
On the day of -19, the jury refurther abstract as he may deem necessary. substance of the verdict.) 18. Abstracts shall be printed and in all the instructions and verdict of the jury, set out
(If the case be tried by the court, instead of respects, including service and filing, conform so much of the findings of fact and conclusions to rule 9, and shall be bound separately from of law, and requests for findings, if any, togeththe brief. The cost of printing abstracts er with the exceptions relating thereto, as may shall be taxed as provided by rule for taxing of.)
be necessary to present the errors complained costs of briefs.
Motion for Nero Trial. 19. FORM OF ABSTRACT.—Abstracts of (or defendant) moved for a new trial upon the
On the day of 19, the plaintiff records shall be made substantially in the following grounds: following form:
(Set out the grounds for new trial, relied
upon, and omit all others.)
19, the court John Doe
sustained (or overruled) said motion:
(State exception, if any.) Richard Roe
day of 19, the followAppeal from (or error to) county, ing judgment was entered: (Set out the judgJudge.
ment or order appealed from.) A. B. for plaintiff and appellant (or appellee appeal was filed in the district court.
19—, notice of or plaintiff in error).
(If any D. E. for defendant and appellant (or appel- question is raised on this notice set out a lee or defendant in error).
if supersedeas bond or other undertaking On the day of 19, the plaintiff filed below, state the fact with the amount and filed petition in court below, stating the cause names of sureties. of action to be:
19—, the cause (Set out only so much of petition necessary was filed in the Supreme Court. to an understanding of the questions to be presented and no more. Omit all formal parts; (This outline is presented for the purpose abbreviate and condense.
If there is an ap- of indicating the character of the abstracts pearance, or if no question is raised about summons, return, etc., omit.)
contemplated by the rule, which, like all the On the
day of 19-, defendant rules, is to be substantially complied with. demurred. (State grounds. If defendant filed of course no formula can be laid down apmotion and the ruling thereon is one of the plicable to all cases. The rule to be observ. questions to be considered, set it out in the same way.)
ed in abstracting a case is: PRESERVE And on the
day of - 19–, the EVERYTHING MATERIAL TO THE QUEScourt sustained (or overruled) the same. (In TION TO BE DECIDED AND OMIT EV. every instance let every abstract be in chronological order of the events in the case; let
ERYTHING ELSE.) each ruling appear in the proper connection. 20. Abstracts will be required pursuant to If the defendant pleaded over and thereby waived his right to be heard upon these rulings, no these rules in all cases filed in this court on mention need be made of them.)
or after the 7th day of April, 1911, and also And on the day of , 194, the de- in all other cases in which the brief of apfendant filed his answer setting up his defense as follows: (Set out substance of defense, and pellant, or plaintiff in error, or plaintiff in reply, if any, omitting formal parts. Frame cases of original jurisdiction, is not served the abstract so as to present all questions to or filed on or before June 1, 1911. be reviewed, raised before issue joined.)
At the trial on the day of - 19-, In all cases docketed in this court prior to (to a jury or the court, as the case may be) April 7, 1911, either party may prepare and the following proceedings were had: (Set out so much of the bill of exceptions as
file abstracts of the record under these rules, is necessary to show the ruling of the court to in which case the cause shall be advanced which exceptions were taken and relied upon for hearing.