dissenting.
Under the technical rules of law announced by the majority, cases long since fairly tried and correctly determined may now be reopened and tried over again. A plaintiff Whose suit was properly dismissed and whose petition stated no cause of action may have a new trial granted at a subsequent term of court without alleging that he was injured or prejudiced by the dismissal. Parties with real *800•controversies may be delayed by a litigious person having no grievance to redress in court, though his, lawsuit was fully and fairly tried and decided without error. The dispatch of judicial business and the proper procedure in ■courts of justice will be disturbed by the decision announced by the majority. A plaintiff may obtain more by negligence in failing to assert his rights in court than by making a timely demand for statutory relief. Alleged oral remarks of a judge in advance of a decision may have a greater import in determining rights than a solemn judgment when recorded in the journal of the court. These are unavoidable deductions from the decision of the majority.
The majority, in sustaining the petition herein, authorize a new trial in an independent suit at a subsequent term of ■court without requiring plaintiff to allege that her dismissed petition in the original case stated a cause of action. The petition for a new trial does not contain an allegation showing that the court committed an error, or that plaintiff was prejudiced by the decision. It does show, however, that plaintiff could have conferred appellate jurisdiction on the supreme court by filing in the office of the clerk a transcript of the judgment without a bill of exceptions. Did the trial court refuse to perform any duty enjoined upon him by law in connection with the bill of exceptions? If so, upon a proper application to the appellate court, either in the appeal or in an original action for a writ of mandamus, the performance of that duty would have been coerced. By the assertion of legal rights .a resort, to equity for relief could have been avoided. The first rule of law announced by the majority to justify a new trial is stated in the syllabus as follows: “A court of ■equity will grant a new trial in a proper case where a party has been deprived of a bilí of exceptions by reason •of the inability of the stenographic reporter to furnish a transcript of the testimony in time.”
The petition for a new trial shows on its face that plaintiff was not deprived of a bill of exceptions “by reason of the inability of the stenographic reporter to furnish a tran*801script of the testimony in time.” The statutory time, had it been properly extended, was ample. Within that time the reporter, in fact, extended his notes. The petition shows that plaintiff understood an extension of time was necessary, because she orally asked for it in advance of a decision, and relied on an oral announcement from the bench, ignoring the public journal, which disclosed the truth. The petition for a new trial shows on its face that plaintiff was deprived of a bill of exceptions through failure of the trial judge to conform to an oral announcement of his purpose to allow plaintiff 40 days for the preparation of a bill of exceptions, in the event'of a dismissal, and through failure of her counsel to discover the omission and to procure such an order within the statutory period. Under the facts pleaded in the petition for a new trial, it was the duty of plaintiff to ascertain from the journal that the trial judge had forgotten to grant an extension of time, to remind him of that fact, and to procure the necessary order. This negligence on the part of plaintiff was not an “unavoidable casualty,” within the meaning of that term as used in the statute enumerating the grounds for setting aside a judgment after expiration of the term at which it was rendered. Code, sec. 602 (Eev. St. 1913, sec. 8207). Had plaintiff procured a bill of exceptions and prosecuted her appeal to the supreme court within the time allowed by law, a new trial would not have been granted, unless the petition stated a cause of action and the record disclosed a prejudicial error. After expiration of the term at which the judgment was rendered, the majority, by sustaining the petition in equity, have authorized a new trial, for what, in reality, is plaintiff^ negligence, without knowing that a cause of action was stated in the original petition, and without a showing that there was error in the proceedings. Under the rules announced by the majority, therefore, plaintiff may obtain more by negligence than by a proper and timely assertion of legal rights. The constitutional right of appeal was never intended to make a farce of appellate procedure or of equity jurisdiction by reopen*802ing litigation settled by a fair trial and a proper judgment. Tbe law, after a full bearing, was once declared by a unanimous court to be different from tbe decision in tbe present case. In Zweibel v. Caldwell, 72 Neb. 53, it was said:
“In an action in equity to obtain a new trial of an action at law on tbe ground tbat tbe party complaining bas been deprived of tbe right to bave bis case reviewed in the supreme court, it must appear tbat there was a genuine controversy in tbe law action, and tbat in tbe trial thereof matters were determined adversely to tbe party complaining to tbe prejudice of bis interests, and tbat be was by fraud or accident deprived of bis constitutional right to be beard thereon in tbe court of last resort, and tbat be was himself without fault.”
I am unwilling to depart from this wholesome doctrine, and therefore dissent from the opinion and judgment of tbe majority.
Sedgwick, J., concurs in above dissent.