Omaha daily bee., 1905-12-07
Attorney General Brown Says This De-
oision is Final,
ERROR OF PRouT FATAL TO THE STATE
Fails to Have Bill Of Exceptions to su-
prsme COur. Properly Certified.
TRIBUNAL REFUSES TO coNslOtR IT
Last Round was the Fifth Time Case
Had Been Before the sapreme
Court, BeinG sent Back
Four Times.
tFrom a sian corresnondent.l u

LINCOLN, Neb.. Dec. 6.--(Special Tele-
gram. )-After eight years OF litigation In
which the state sought to recover from the
bondsmen OF former Treasurer ]. s. Bart
ley the sum OF 1855, 7s0.e0, lost through his
speculations, the case has been finally de-
cided in favor OF the defendants on the
technical ground that the bill OF excep-
tions in the case was not properly authen-
ticated. The court, in an opinion by Com
missioner Dune, says that there is nothing
by which to determine whether the bill OF
exceptions is genuine and entire. Former
Attorney General Prout was in ofhce when
the defective bill was fled II was certi-
ned by District Clerk Broadwell OF Douglas
county.
Attorney General Brown refused to dis
cuss the matter until he can see the opin-
ions. 1t Is believed that no further steps
will be taken and that the state is at last
| irrevocably deprived of every chance TO
secure the money, because OF the careiess-
ness In the preparation of the bill OF ex-
ceptions.
The bondsmen against whom the suit
was brought are Z. r. Brown and John II.
Ames, Lincoln; w. A. Paxton, w. A.
swobe and Cadet Taylor, Omaha, and C.
C. McNish, Fremont. They have been seek
| ing for several years to compromise the
suit by the payment of small sum. and
a special board Of state officials was Gre
ated to effect that purpose. with the ac-
cumulated interest the total claim OF the
state at the present time amounted to nearly
$7OO000 The Douglas county jury gave a
verdict for the defendants at the last trial.
but the state has eontcrded that their
verdict was not based on the eviuence
The defect in the bill of exceptions left
1t impossible for the court to determine
the only vital issue raised by the attorney
general
John II. Ames. one Of the victorious de-
PENDANTS, is member of the supreme
court commission.
Opinion OF the Court.
The opinion was prepared by Commits.
sioner Duffie, concurred in by the court,
Chief Justice HoIcomb not sitting. The
decision closes: ie~-e
We have held tfis, case AN unusual time
cusion that, because of Hf the failure enc 81 eG the
Statute relating to P Sfs ' of ] exeeptons q ahs Ind
their authentication, that this so-called
bill cDNS cannot be cons Gonsdersd by us i e net
the contrary, we are disposed TO give Z, to
s Rs eour anf e mos ss
liberal construction In order that the
to the parties OF record ana to the court
itself; but: under the most liberal con
bills of exceptions is capable. the bill pre-
, sented by the state IN this case IL SO
the eaTmarks reouired by % our iaw -, ~
} identify it, that we have no alternative
, but to sustain the motion to quash made by
the defendants. We cannot In this case
more than another OF less Importance dis
regard the plain reading OF the statute or
! establish precedent which would allow
: the presentation to this court OF records
which may or may not contain. the evidence
S on which the trial court acted. TO do so
would give opportunities for imposition
: and fraud which would endanger the In
e terest OF those who seek this court to
= The responsibility for this disposition Of
the case does not rest with us. but those
i whose duty 1t was to see that the appeal
s was taken in due form, and the necessary
statutory steps taken to secure a record
: which this court could consider The bill
or exceptions being quashed we have moth
n ing to consider, further than to see whether
the judgment is supported by the pleadinRs
the judgment Must II be S sffmed @ ana ana Is H0'S5 81
recommend.
: Not Properly CertIned.
In this case the jury returned verdict
q for the defendants and the state took the
suit to the supreme court on error, pre-
senting to that court the single question
whether the verdict was against the svi.
= dence. This required an examination OF
- all the evidence introduced on the trial
u and which can be preserved and presented
n to the supreme court only by properly
n authenticated bill OF exceptions. The de.
,s PENDANTS objected that the state had failed
"a to preserve TO have bill OF exceptions
Is certified to in legal manner OF in sucf
In way that the supreme court could know
,r what evidence was before the trial courr
ID on which the verdict OF the jury was based
IN and moved to quash the bill
L The state filed three separate bound rec
n ords or volumes. First is a transcript o
m the pleadings and proceedings The sec
ond marked bill OF exceptions. volume 1
contains what purports to be oral evidenc,
I and reference is made 70 numerous .docu
ments and exhibits. but which are not con
Ie tanned In this volume. The third volume 4
entitled state OF Nebraska against WA
liam a. Paxton ct al. volume 2-exhibits
and contains copies OF a large number o
exhibits. Attached TO a volume marked
an is a certificate OF Frank A. Broadwel
C. clerk of the district court. certifying tina
r. this is the original bill OF exceptions. Thi
n certificate makes no reference TO anothe
at volume as a part OF the bill and contain
ne no intimation that the court Is TO loo
on outside OF the volume for any part OF tn
al evidence in the case. This is a separat
volume and ends with the following:
"Mr. Ransom: The answering surety de
i PENDANTS rest.
I'm "Mr. Prout: The state rests. (Both side
'or rest.)'
There was nothing TO connect two OF IN
9" volumes or to show that they are a pRi
IA. OF the same case except the title endorse
X on the outside cover, and this title eve
~ does not correspond.
,m The syllabus OF the case is as follows;
,a- syllabus OF the Case. Sft
A bill OF exceptions will be quashe
om where Il is not certified and Identified
such manner that this court may kno
1m that II is the Identical bill allowed by n
trial court and the whole thereof. q
~ The statute provides that bill OF excel
tions, where the original bill 10 uso4, 4hA
ON be attached to the transcript Of the recor