Winchell v. McKinzie. tures and official capacities of county officers are matters of public notoriety, and the court will officially take notice of them. The district court of Perkins county is presumed to know, and was bound to take judicial notice, that B. F. Hastings was at the time county judge of that county and of the genuineness of his signature to the order in question. (Wade on Notice, sec. 1413; Jones v. Gales's Curatrix, 4 Mart. [La.], 635; Scott v. Jackson, 12 La. An., 640; Templeton v. Morgan, 16 Id., 438; Wetherbee v. Dunn, 32 Cal., 106.) Counsel for defendants in error cite in their brief authorities from other states which lay down the doctrine that an execution or writ of attachment without the seal of the court from whence it issues is invalid, and that the defect is of such a character that it cannot be cured by amendment. Such is not the rule in this state. In Taylor r. Courtnay, 15 Neb., 190, the seal had been omitted from an execution; lands had been sold, and the sale confirmed, after which leave was given to amend the execution by affixing the seal to the same. It was held that the execution without a seal is not void, but may be amended, although the sale made thereunder has been confirmed. Many cases are cited in the opinion to sustain the proposition, and there can be no doubt as to the soundness of the rule stated. The failure to attach the seal would not render the process absolutely void. Counsel concede that the order of the county judge granting the attachment could be amended by attaching the seal. In effect, this is an admission that the order is not void, for there must be something to amend before an amendment can be made, and a void order is a nullity, and cannot be amended. Counsel for defendants in error urge that this case is controlled by the decisions of this court, wherein it is held that when an officer attempts to justify the seizure of goods found in the possession of a stranger claiming title, that the mere production of the writ is not a sufficient justifi Winchell v. McKinzie. cation, but that the officer must go further and show affirmatively that the writ was regularly issued. In none of the authorities cited by counsel, nor in any of our cases, so far as we are aware, has it been held that when a sheriff or other officer seeks to justify the seizure of property under a process regular on its face, mere technical errors intervening after the issuing of the writ may be shown in a collateral attack, and when proven will invalidate the entire proceedings. True, in the cases referred to in defendants' brief it is said, that it must be "shown affirmatively that the writ was regularly issued." By that it was meant that it must appear that the process was issued by a court having jurisdiction of the parties and the subject-matter of the action, and that the steps taken leading up to the writ were not void. It was not meant that the officer was required to prove that the proceedings were free from mere errors and irregularities which are not of such a nature as to affect the jurisdiction, although they might be sufficient grounds for reversal by a suitable proceeding in a tribunal having authority to review them. There are many errors occurring in a trial of a cause which may be waived by the parties, and if the one against whom they are made fails to take advantage of the same, strangers to the record cannot do so. Suppose an attaching creditor files the proper affidavit in attachment, and the writ issues without his having given a bond for the indemnity of the defendant, in a case where one is required by statute, his failure to file an undertaking would not render the attachment absolutely void. It would be a mere irregularity, of which the defendant in attachment alone could take advantage. The case of Connelly v. Edgerton, 22 Neb., 82, was a suit in replevin against an officer who claimed possession of the property by virtue of the levy of certain writs of attachment. The court in the syllabus say: "Where proceedings in attachment are irregular and amendable, but not State, ex rel. Cochran, v. Hopewell. void, and no objection is made thereto by the defendant in the action, such proceedings cannot be attacked or questioned collaterally by third parties." (See Rudolf v. MeDonald, 6 Neb., 166.) The defendants in the case of M. E. Smith & Co. never called the attention of the court in which the case was pending to the fact that the seal was omitted from the order of the county judge granting the attachment therein, although they both appeared in the action. Had the court's attention been challenged to the defect, doubtless it would have permitted an amendment. As the defendants in that suit were satisfied, the defendants in error herein cannot be heard to complain. Our conclusion is that the records and files in the attachment cases should have been received in evidence, and that the court below erred in excluding the same. The judgment is reversed and the cause re manded. REVERSED AND REMANDED. THE other judges concur. 35 822 36 412 35 822 47 9 47 238 35 822 51 688 35 822 60 14 STATE OF NEBRASKA, EX REL. CHARLOTTE A. COCHRAN [FILED DECEMBER 16, 1892.] 1. Bill of Exceptions: TIME FOR PREPARATION: LIMITATION. The time within which a party must prepare and serve a bill of exceptions begins to run from the final adjournment of the term of court at which the cause was decided, and not from the date of the formal entry of the judgment by the clerk upon the court journal. 2. : Bickel v. Dutcher, 35 Neb., 761, distin guished. 3. : State, ex rel. Cochran, v. Hopewell. -. When a cause is tried to the court, without the intervention of a jury, at one term of the district court and taken under advisement, and final decree rendered at a subsequent term of said court, the time for settling of a bill of exceptions begins to run from the close of the term at which the decision was rendered. 4. Record: CONCLUSIVENESS OF RECITALS: REMEDY FOR ERRONEOUS RECORD. The recitals of the record of a trial court are conclusive upon the parties as to the term at which a decree was rendered. If the record is incorrect, the remedy is by a proper proceeding in the trial court to secure a correction of the same. ORIGINAL application for mandamus. Brome, Andrews & Sheean, for relators. B. G. Burbank, contra. NORVAL, J. This is an original application for a writ of mandamus to compel the defendant to sign a bill of exceptions in the case of Thomas Hines against the relators and others, which was tried before respondent in the Douglas county district court. The action above mentioned was to foreclose a mechanic's lien. Affidavits were filed to the effect that the cause was tried at the May, 1891, term of said court, and the decision was orally announced in open court in the presence of the parties on the 8th day of August, 1891, the same being a day in said May term of court; that on the same day a draft of the decree was prepared by the attorney for the successful party, which was presented to the attorney for the relators as well as the attorneys for all the other parties interested in the litigation, who approved the same; that immediately thereafter, and on the said 7th day of August, the said draft of the decree was filed with the clerk of the district court, who indorsed thereon the following: "Filed August 8, 1891. Frank E. Moores, Clerk." That, by the terms of the decree so State, ex rel. Cochran, v. Hopewell. drawn, relators were given forty days from the rising of the court to prepare and serve their bill of exceptions; that the May term of the district court of Douglas county finally adjourned on the 15th day of August, 1891; that the said draft of the decree was not presented to respondent for his signature until the 30th day of December, 1891, which was a day in the September term, when the draft of the decree was approved by him, and it was then recorded in the journal of the district court as a final decree as of the September term; that the September, 1891, term of the district court of Douglas county adjourned without day on the 23d day of January, 1892; that on the 20th day of March, 1892, and within forty days from the rising of said court for said term, relators caused to be prepared and served upon counsel for the adverse parties a true bill of exceptions, who refused to receive the same, and declined to propose any amendments thereto; that the proposed bill was thereupon presented to respondent for his signature, who refused to sign or allow the same on the ground that it had not been served upon the adverse parties within forty days from the final adjournment of the term of court at which the decree was rendered. It is conceded that the proposed bill is correct. Was it completed, served upon the parties in interest, and presented to the judge for his signature within the time allowed by statute? Section 311 of the Code of Civil Procedure, relating to bills of exceptions, provides that "When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing within fifteen (15) days, or in such time as the court may direct, not exceeding forty (40) days from the adjournment of the court sine die, and submit the same to the adverse party or his attorney of record for examination and amendment if desired," etc. Manifestly under the above statutory provision the time within which a party must complete and |