CROSS-REFERENCES.

Necessity of bill of exceptions, see Ap-
peal and Error, §§ 893-951.

Abstract as sufficient, see Appeal and Er-
ror, $$ 1087-1089.

Sufficiency and necessity of bill of excep-
tion on review of ruling on motion for con-
tinuance, see Continuance, §§ 68-71.

In criminal prosecutions, see Criminal
Law, $$ 997-1044.

Transcript on appeal from determination
of liquor remonstrance, see Intoxicating
Liquors, §§ 189-191.

I. NATURE, FORM AND CONTENTS.
Nature and purposes in general.

1. (1885.) The purpose of a bill of ex-
ceptions is to identify the paper or instru-
ment and designate it as the paper or in-
strument used on the hearing. Graves v.
Scoville, 17 Neb. 593 (24 N. W. 222).

2. (1894.) Where, upon an inspection of
the bill of exceptions, palpable omissions
appear, and the bill is so illegible and so
unsystematically arranged that an intelli-
gent examination is impracticable, the su-
preme court will upon review assume that
there was evidence to sustain the findings
of the trial court upon questions of fact.
Badger Lumber Co. v. Mayes, 38 Neb. 822
(57 N. W. 519).

3 (1901.) The function of a bill of ex-
ceptions is to bring into the record the
facts on which the trial court decided the
questions of law presented for review.
State, ex rel. Pierson, v. Fawcett, 2 Unof.
243 (96 N. W. 219).

Requisites and sufficiency in general.

4. (1895.) A bill of exceptions should
begin with a proper caption, the matter
should be systematically arranged, and the
judge should, by reference, identify the ex-
hibits. Vaughn v. Crites, 44 Neb. 812 (62
N. W. 1098).

5. (1903.) The supreme court is under
no obligation to consider a bill of excep-

8. (1886.) The statute relating to bills
of exceptions being remedial in its nature
will be liberally construed. Morehead v.
Adams, 18 Neb. 569 (26 N. W. 242). [Over-
ruled. Scott v. Overall, 50 Neb. 144.]

9. (1888.) The provisions of the code
relating to bills of exceptions are to be lib-
erally construed. Greenwood v. Cobbey, 24
Neb. 648 (39 N. W. 833).

10. (1901.) The statute relating to bills
of exceptions, being remedial in its nature,
will be liberally construed. Williams v.
Miles, 62 Neb. 566 (87 N. W. 315).
Right to bill.

11. (1894.) The right to a bill of ex-
ceptions is not implied from the right to
prosecute proceedings in error, and a bill
of exceptions cannot be allowed except in
pursuance of statutory authority. Hopkins
v. Scott, 38 Neb. 661 (57 N. W. 391).
Matters included in general.

Matters which must be brought into rec-
ord by bill of exceptions, see Appeal and
Error, IX, B.

12. (1881.) Instructions, motion for new
trial, and all matters required by the stat-
utes to be filed with the clerk and entered

upon the journal of the court, should not Eaton be embodied in a bill of exceptions. v. Carruth. 11 Neb. 231 (9 N. W. 58). 13. (1881.) Where the exception is for the admission of illegal evidence on the trial it is not necessary that bill contain more of the testimony than is necessary to explain the exception taken. Dietrichs v. Lincoln & N. R. Co., 12 Neb. 225 (10 N. W. 718).

14. (1887.) Bills of exceptions should contain all the evidence considered by a cause. If not, it court in the trial of a must be presumed that the findings of the trial court on questions of fact are rect. Aspinwall v. Sabin, 22 Neb. 73 (34 N. W. 72; 3 Am. St. Rep, 258).

cor

15. (1890.) Where no reply is filed below, a certificate of the trial judge that the the answer was new matter set up in treated as denied by a reply, will, not be considered by the supreme court, as it is neither an amendment of the record nor a supplement to the bill of exceptions. Ley v. Miller, 28 Neb. 822 (45 N. W. 174).

16. (1892.) Where it appears from an inspection of a bill of exceptions that important and material evidence introduced on the trial of the cause has been omitted therefrom, the bill of exceptions will not be considered by the supreme court for the purposee of determining whether the verdict is Schneider v. supported by the evidence. Tombling, 34 Neb. 661 (52 N. W. 283).

17. (1895.) Where objection to the introduction of a written instrument was that it had been altered, and the copy in the bill of exceptions did not show such alteration, an affidavit not used on the hearing in the district court, but attached to the record, is incompetent to show that the original Chadinstrument appeared to be altered. ron Banking Co. v. Mahoney, 43 Neb. 214 (61 N. W. 594).

18. (1897.) A bill of exceptions is sufficient if it contains all of the record of the proceedings to be reviewed necessary to explain the exception taken. Sanford v. Modine, 51 Neb. 728 (71 N. W. 740).

19. (1899.) A bill of exceptions may properly include a record of events transpiring in the presence of the court, but not formally introduced in evidence. State, ex rel. Bankers' Reserve Life Ass'n, v. Scott, 59 Neb. 499 (81 N. W. 305).

20. (1899.) The rules of practice of the district court may be incorporated into

the bill of exceptions without being formally introduced in evidence. State, ex rel. Bankers' Reserve Life Ass'n, v. Scott, 59 Neb. 499 (81 N. W. 305).

21. (1900.) A motion to vacate a sale, when filed, is a part of the record and should not be embodied in the bill of exceptions. Mandell v. Weldin, 59 Neb. 699 (82 N. W. 6).

22.

the

merely in (1902.), Matters judge's mind, and which were in no way a part of the public proceedings at a hearing, are not properly a part of a bill of exceptions. State, ex rel. Cobb, v. Fawcett, 63 Neb. 523 (88 N. W. 681).

23. (1902.) A bill of exceptions may properly include a record of events which took place in the presence of or under the direction of the court and matters of which the court took judicial notice, if in fact considered by the court in arriving at a decision, although not formally introduced in evidence. State, er rel. Cobb, v. Fawcett, 64 Neb. 496 (90 N. W. 253).

Incorporating evidence at former trial.

24. (1898.) Where there have been two or more trials, the bill of exceptions cannot, after the ruling on the final motion, reach back indefinitely and bring into the record the evidence adduced on former trials. State, ex rel. Morton, v. Dickinson, 56 Neb. 251 (76 N. W. 543).

25. (1907.) Where, upon the final hearing of a case, the trial judge makes an order permitting the defendant to offer the testimony taken at a former trial, and afterwards includes the evidence so taken in the bill of exceptions, the same will not be stricken from the record in the supreme court. Anthes v. Schroeder, 79 Neb. 355 (11 N. W. 593).

Incorporating exhibits.

26. (1899.) Ballots which have been used in evidence, in an election contest, can be made part of a bill of exceptions, though not physically attached to such bill at the time of the settlement. Mauck v. Brown, 59 Neb. 382 (81 N. W. 313).

27. (1901.) Where ponderous articles, which do not admit of physical attachment to the record proper, are part of the evidence in the case, are referred to in the bill of exceptions, and articles, answering to such reference, are filed in the supreme court with the record in the case, and produced at the hearing, bearing the marks of identification of the official reporter of the

trial court; and their identity is unchallenged, save in the course of the argument, the articles produced will be treated as a part of the bill of exceptions. O'Neill v. Chicago, R. I. & P. R. Co., 62 Neb. 358 (86 N. W. 1098).

Incorporating grounds of objection.

28. (1899.) Grounds of objection to a ruling, order or judgment which do not appear in the record may be brought into the bill of exceptions by the party complaining, by reducing such grounds of objection to writing and asking to have them incorporated into such bill of exceptions. State, ex rel. Bankers' Reserve Ins. Co., v. Scott, 59 Neb. 499 (81 N. W. 305).

Use in other cases.

29. ( 1894.) A bill of exceptions must contain all the evidence upon which questions of fact are to be determined, a reference in such bill to evidence to be found by reference to another bill filed in an independent case not being sufficient. Lowe v. Riley, 41 Neb. 812 (60 N. W. 96).

30. (1898.) Solely by stipulation, a bill of exceptions in one case cannot be made a part of the record of another case, even though the two cases be between the same parties. Murphy v. Warren & Co., 55 Neb. 220 (75 N. W. 575).

Duty of stenographer to furnish transcript.

31. (1896.) The supreme court will not make an order on a stenographer below to prepare a transcript of evidence for a bill of exceptions where the district judge made such an order upon condition that the fees should be paid, there being shown neither a compliance with the order nor an attempt to review it. Argabright v. State, 46 Neb. 822 (65 N. W. 886).

II. SETTLEMENT, SIGNING, AND

FILING.

Time for presentation, allowance and filing.

32. (1873.) Exceptions relating to instructions given to a jury must be reduced to writing during the term at which the trial took place. Holmes v. Wilhite, 3 Neb. 147.

33. (1874.) To make exceptions to the charge of the court to the jury available to the party excepting, or to the ruling of the court in the refusal to give instructions asked for, or to the admission of testimony, the exceptions must be reduced to writing

at the same term at which the trial took place. Hughes v. Kellog, 3 Neb. 186.

34. (1876.) In vacation a judge has no authority to allow a bill of exceptions. And if the record discloses that it was so allowed, it will not be considered. Mewis v. Johnson Harvester Co., 5 Neb. 217. [Overruled. State v. Weaver, 11 Neb. 165.]

35. (1882.) The same procedure is to be observed in preparing a bill of exceptions in an equity case as in an action at law. Uhling v. Schellenberg, 12 Neb. 609 (12 N. W. 272).

36. (1891.) In a term case in a county court the authority to prepare a bill of exceptions, in any case where such bill is authorized, continues during the entire term without any order of the judge extending the time, and he may sign a correct bill at any time before the term closes. Osborne v. Canfield, 33 Neb. 330 (50 N. W. 167).

37. (1893.) The cause was tried in the district court on the 17th day of December, 1889, and forty days were given to reduce the exceptions to writing. The term of court adjourned without day December 23, and on the 29th day of the following month the trial judge, on a showing of diligence, granted an extension of thirty days' additional time in which to complete and serve a bill of exceptions. A draft of the bill was served on the attorneys of the successful party on February 19, 1890. Held. That the same was presented in time. First Nat. Bank of Denver v. Lowrey, 36 Neb. 290 (54 N. W. 568).

38. (1894.) A bill of exceptions, to be settled by the clerk upon agreement of parties, must be acted upon by such clerk within the time fixed by statute, or within the time allowed by the court or judge for the settlement of such bill of exceptions. Reynolds v. Deitz, 39 Neb. 180 (58 N. W. 89).

39. (1894.) Where amendments are proposed to a bill of exceptions, the draft of the bill, with the proposed amendments, must be presented to the trial judge within ten days after the return of the same to the party seeking the allowance of the bill, upon five days' notice to the adverse party or his attorney of record of the time and place of such presentation. Schields v. Horbach, 40 Neb. 103 (58 N. W. 720). [Overruled. State v. Scott, 53 Neb. 571.]

40. (1898.) Where forty days are given to prepare a bill of exceptions, the draft of the bill and proposed amendments are