Phillippe v. Barbera

240 N.W.2d 50 (1976)

195 Neb. 727

Paul PHILLIPPE, Appellant, v. Joseph P. BARBERA et al., Appellees.

No. 40333.

Supreme Court of Nebraska.

April 1, 1976.

Brandt & Horan, William B. Brandt, John J. Horan, Nebraska City, Healey, Healey, Brown, Wieland & Burchard, Lincoln, for appellant.

Otto H. Wellensiek, Wellensiek & Davis, Syracuse, for appellees.

Heard before WHITE, C. J., BOSLAUGH, NEWTON and CLINTON, JJ., and REAGAN, District Judge.

REAGAN, District Judge.

This is an appeal from an order of the District Court modifying a judgment of the county court in favor of the appellant.

The trial on appeal in the District Court was on the record, no additional evidence being received. The record consisted of the county court transcript and bill of exceptions, both of which were apparently marked as exhibits in the District Court, and received in evidence by the District Judge. The District Court thus had jurisdiction of the appeal. § 24-541, R.S.Supp., 1974; Riggert v. King, 192 Neb. 607, 223 N.W.2d 155.

The appellant filed no praecipe requesting a bill of exceptions, and no bill of *51 exceptions has been certified and filed in this court. Since the record before us contains no bill of exceptions, and the pleadings support the judgment, the action of the District Court must be, and is, affirmed. Occidental Bldg. & Loan Ass'n v. Carlson, 134 Neb. 574, 279 N.W. 162.

Both parties have cited State v. Clark, 194 Neb. 487, 233 N.W.2d 898, and argue that a District Court should affirm a judgment rendered by a county court unless there is error or an abuse of discretion. This contention may have resulted from the original opinion in State v. Clark, supra, which cited section 24-541, R.S.Supp., 1974, as the statute governing appeals from county court to the District Court in criminal matters. The applicable statute governing appeals in criminal matters as indicated in the substituted opinion in State v. Clark, supra, at p. 490, 233 N.W.2d 898, is section 29-613, R.S.Supp., 1974. Under that statute, the District Court has no discretion to receive additional evidence, and under the rule now announced in State v. Clark, supra, should examine the record presented only for error or abuse of discretion. Section 24-541, R.S.Supp., 1974, governs appeals from county courts to District Court in matters other than criminal, and allows the District Court to receive additional evidence. Whether the District Court exercises its discretion to receive additional evidence, it is the obligation of the court to reach an independent conclusion without reference to the decision of the county court, with the caveat that where evidence is in irreconcilable conflict, the District Court should consider the lower court's opportunity to observe the witnesses and their manner of testifying.

For the reasons previously stated, the judgment of the District Court is affirmed.

AFFIRMED.