
    Chicago, B. & Q. R. Co. v. Albert Goracke.
    [Filed May 6, 1891.]
    1. Justice of the Peace: Cannot Certify to Evidence. The provisions of the Code authorizing the taking of exceptions to the opinion of a justice of the peace upon questions of Jaw arising during the trial, in cases tried hy a jury, do not extend to or include questions touching the sufficiency of evidence to support the verdict.
    
      2. -: -: Reopening Case. In an action for the value of a cow killed by one of the defendant’s engines, the plaintiff, after he had rested his case and the defendant bad introduced part of its testimony, applied to the justice for leave to withdraw his rest, for the purpose of proving the value of the cow, which request was granted. Held, Not an abuse of discretion.
    Error to the district court for Johnson county. Tried below before Broady, J.
    
      Marquett & Deweese, and S. P. Davidson, for plaintiff in error.
    
      D. F. Osgood, contra, cited:
    
      London v. Headen, 76 N. Car., 72; Street v. Bryan, 65 Id., 619.
   Norval, J.

This action was brought by the defendant in error before a justice of the peace in and for Johnson county, to recover the value of a cow killed by one of the company’s engines. The cause was tried to a jury, who returned a verdict for the plaintiff, assessing his damages at $20, the full amount claimed in the bill of particulars. At the request of the railroad company a bill of exceptions, containing all the testimony, with the rulings and exceptions taken on the trial, was allowed and signed by the justice.

The railroad company filed in the district court a petition in error, where the judgment of the justice court was affirmed, and the cause was brought to this court on error.

The errors assigned in this court by the railroad company may be grouped under two heads: First, that the verdict is contrary to law and the evidence, and second, that the justice erred in allowing the plaintiff to reopen his case and introduce testimony in chief after having rested his case.

It is claimed that the verdict is not supported by the evidence. The defendant in error contends that the questions of facts are not subject to review in the district court, by a petition in error, from a judgment rendered by a justice of the p<eace; in other words, that a justice has'no-authority to preserve, by bill of exceptions, the evidence taken in a trial before him.

Section 988 of the Code of Civil Procedure. provides that “in all cases which shall be tried by a jury before a justice of the peace, either party shall have the right to except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exceptions it shall be the duty of the justice to sign and seal a bill containing such exceptions, if truly alleged, with the point decided, so that the same may be made part of the record in the case.”

Section 1086 requires every justice to keep a docket and enumerates what must be entered thereon. The eighth subdivision of the section requires him to enter on the docket “the exceptions to the rulings of the justice, on questions of law, taken by either party.”

Section 1087 provides that “the several particulars in the last section specified must be entered under the title of the action to which they relate, and at the time when .they occurred, except that the bills of exceptions in regard to the rulings on questions of law or evidence need not be entered until after the judgment, unless required by the justice or one of the parties,” etc.

These are the only provisions upon the statute books relating to bills of exceptions in justice courts, in cases tried by á jury. When exceptions are taken to the -opinion of the justice upon questions of law arising during the trial, such court is empowered to settle a bill of exceptions, but such bill is confined solely to the rulings of the court. It does not extend to or include questions touching the sufficiency of the evidence to sustain the verdict. The jury in a justice court are the sole judges of the facts, and the justice in such a case has nothing to do with their determination. A justice of the peace has power to set aside a verdict and grant a hew trial only on the ground of fraud, partiality, or undue means.. No motion of that kind was made in the case at bar. The statute having limited the right to the taking of exceptions to the opinion of a justice of the peace, upon questions of law in cases tried before a jury, the justice had no authority to certify to the evidence, and such evidence cannot be considered for the purpose of determining whether the verdict is contrary thereto. (Ohio v. Wood, 22 O. St., 537.)

It appears from the record that after the plaintiff had closed his case and the defendant had put in part of its testimony, the justice permitted the plaintiff, over the defendant’s objection and exception, to withdraw his rest and introduce evidence as* to the value of the cow. Allowing such evidence to be given was to prevent a failure of justice, and there was no abuse of discretion on the part of the justice. (Tomer v. Densmore, 8 Neb., 384 ; Gillette v. Morrison, 9 Id., 395; Goodman v. Kennedy, 10 Id., 270; Yeoman v. State, 21 Id., 171; Village of Ponca v. Crawford, 23 Id., 662.)

The value of the cow was placed at $30 by the plaintiff in his testimony. The value as sworn to by the defendant’s witnesses was $20, which latter sum was accepted by the jury. There is no error in the record and the judgment is

Affirmed.

The other judges concur.  