German Ins. Co. v. Rounds. fire, sent the policy to the company, but no notice was ever given Mr. Rounds of the intention of the company to cancel the risk, or that it desired so to do; nor was the unearned premium ever paid or tendered to the assured. The policy was never delivered to the agent for cancellation, but had been left in his hands for the purpose of having the indorsements above referred to entered thereon, and was never returned to the insured. The third stipulation in the policy reads as follows: "This company may cancel this policy at any time by returning the premium pro rata for the unexpired time, or by tendering it to the representative of the insured." The company had no power or authority to terminate the insurance without complying with the above provision by refunding or tendering back a ratable proportion of the premium for the unexpired term. Since this was not done, the policy remained in force and was binding upon the company. (May, Insurance, sec. 67; Franklin Ins. Co. v. Massey, 33 Pa. St., 221; Ins. Co. v. Botto, 47 Ill., 516; White v. Ins. Co., 120 Mass., 330; Lattan v. Royal Ins. Co., 45 N. J. L., 453; Home Ins. Co. v. Curtis, 32 Mich., 402; Albany Ins. Co. v. Keating, 46 Ill., 395; Van Valkenburgh v. Lenox Ins. Co., 51 N. Y., 465; Griffey v. Ins. Co., 100 Id., 417; Farnum v. Phenix Ins. Co., 23 Pac. Rep. [Cal.], 872.) There being no error in the record the judgment is affirmed with costs. THE other judges concur. AFFIRMED. Bickel v. Dutcher. ANTHONY A. BICKEL ET AL., APPELLEES, V. WARREN [FILED NOVEMBER 23, 1892.] 1. Bill of Exceptions: MOTION TO SUPPLY EXHIBITS. This court will not, on the motion of an appellant, require the appellee to supply exhibits claimed by the former to have been introduced in evidence in the district court, when such exhibits have never been attached to or made a part of the bill of exceptions. : The appellant, on presenting his bill of exceptions for settlement and allowance, objected to certain exhibits attached thereto by the official stenographer on the ground that they were not true copies of the original, whereupon they were stricken out by order of the trial judge and the bill of exceptions allowed without them. Held, That this court will not entertain a motion by appellant to require appellee to supply such exhibits. 3. Appeal: LIMITATIONS AS TO TIME. The time within which an appeal may be taken from a decree of the district court does not begin to run until such decree has been entered of record, so that it is within the power of the appellant to comply with the statute regulating appeals, by filing in this court a certified transcript of the proceedings of the district court. 4. The case of Horn v. Miller, 20 Neb., 98, overruled. MOTION by appellants to require appellees to supply certain exhibits used in the court below, which were not made a part of the bill of exceptions, and motion by appellees to dismiss appeal from the decree of the district court for Douglas county. Motions overruled. David Van Etten, for appellants. Howard B. Smith, and G. W. Covell, for appellees. This is an appeal by the defendants Galligher and wife from a decree of the district court of Douglas county fore Bickel v. Dutcher. closing certain mortgages and mechanics' liens, and for the sale of the property in controversy in satisfaction thereof. The questions submitted for consideration at this time are presented by the motion of appellants to require appellees to supply certain exhibits which they allege were introduced in evidence before the district court and which are not included in the bill of exceptions filed in this court, and the motion of appellees to dismiss the appeal for the reason that it was not taken within the time allowed therefor by law. It is alleged in appellants' motion that Exhibits C and D, the plans and specifications for the building which is the subject of the controversy, were introduced in evidence, "which exhibits have disappeared from said records and have never been attached to said bill of exceptions as such, notwithstanding appellants' written objections attached thereto, and appellants move the court that appellees be required severally to produce said exhibits to be attached to the bill of exceptions," etc. Numerous affidavits have been filed by the respective parties in support of and against the motion, from which it appears that when the bill of exceptions was prepared by the official stenographer at the request of appellants the two exhibits in question could not be found. The stenographer thereupon procured from one of the appellees the original plans and specifications, of which the exhibits in question were duplicates, and attached them to the bill of exceptions. Objection being made by Mr. Van Etten, attorney for appellants, to such copies, they were excluded by the trial judge, Hon. E. Wakeley, and the bill of exceptions allowed and signed without such exhibits having been attached thereto. The motion of appellants is without merit. The exhibits were a part of the evidence in the district court, and if the copies furnished by the court reporter were incorrect, appellants should have had them corrected in that court or before the trial judge. They appear to overlook the fact that it was their own bill of exceptions and that it was their duty to present Bickel v. Dutcher. for allowance a true bill. If the missing papers had been introduced in evidence by appellees and remained in their possession, or under their control, we have no doubt the district court would have required them to be supplied upon motion of appellants. It is alleged by appellants that Exhibits C and D were introduced in evidence by them and left in the custody of the stenographer, but the part of the record to which we have been referred contains no reference to them except that they were identified by the witness Finley and marked by the stenographer. Nor are we able, after a careful examination of the voluminous record, to discover that they were ever offered in evidence. in no event is it the province of this court to correct the bill of exceptions, and the motion of appellants should be denied. But 2. The question presented by appellees' motion to dismiss the appeal is attended with more embarrassment, in view of the conclusion of the majority of the court in Horn v. Miller, 20 Neb., 98. Before making further reference to that case let us examine the facts disclosed by the record in this. The decree begins with the following recital: "Afterwards, at the May term of said court and on the 30th day of July, 1891, a decree was rendered herein as follows." At the end of the decree, and immediately above the clerk's certificate thereto, appears the following: "Dated July 27, 1891." The only other record evidence on the subject is an entry in the appearance docket indicating that the decree was entered on the 1st day of August, 1891. The clerk of the district court testifies that the decree was filed in his office July 30. From the affidavits of appellees it appears that on the 14th day of July, Judge Wakeley from the bench publicly announced his findings of fact and conclusions of law, or, in the language of the affidavits, "his findings and judgment," and that Mr. Smith, of counsel for appellees, was directed to draft a decree in accordance with the opinion so announced; that a decree was prepared Bickel v. Dutcher. and submitted to the attorney for appellants, by whom it was returned to Mr. Smith on the 22d day of July with written objections to the form thereof. Subsequently it was approved by the judge over the objections of appellauts and filed with the clerk July 30. It does not appear that any notes were made by the district judge at the time of the announcement of his conclusion, or any entry in the trial docket or other record or entry of the decree, until it was approved by the judge presumably on the 27th. The question therefore is, When did the time allowed for appeal begin to run against appellants? If from the time of the delivery of the opinion of the judge on the 14th, the time had expired before the appeal was taken; but, if it is to be reckoned from the date of the approval, to the decree on the 27th, or from the date it was filed with the clerk on the 30th, it is clear that the appeal was taken in time and the motion to dismiss should be denied. This case might be distinguished from Horn v. Miller on the facts, since here there is no record evidence whatever that the decree was entered on the 14th; hence the effect of the affidavits of appellees is to impeach or contradict their own judgment. We have, however, re-examined the question and the conclusion reached is in accordance with the views expressed in that case in the dissenting opinion of the present chief justice. We can agree with the learned author of the majority opinion, that for some, perhaps most, purposes the date of a judgment is the time when the decision was made and announced by the court, rather than the time when it was entered upon the records. But in most, we believe all, of the cases cited in the opinions and text-books in support of that proposition the judgment was subsequently entered in conformity with the decision, and that in none of them was the testimony of witnesses received by the appellate court to prove that the judgment or decree was wrong in fact and was entered at a time other than that shown by the record. According to the practice in the chancery |