Appelget v. McWhinney

59 N.W. 918, 41 Neb. 253, 1894 Neb. LEXIS 155

• Court: Nebraska Supreme Court
• Decided: June 26, 1894
• Docket: No. 5161
• Status: Published

Opinion

Noryal, C. J.

This was an action brought by plaintiff in error to foreclose a real estate mortgage. The district court found the issues in favor of the defendants, and dismissed the action. Plaintiff prosecutes a petition in error to this court, alleging the following grounds for reversal: » .

1. The findings and decree are not sustained by the evidence, and are contrary to law.

2. The findings and decree should have been in favor of the plaintiff and against the defendants.

This record presents no question for review, for two reasons:

1. No motion for a new trial was made in the lower court.

2. There is no bill of exceptions in the case preserving the testimony taken on the trial.

The rule is firmly established in this state that a motion 'for a new trial is necessary to obtain a review of the findings of the trial court in an equity cause, by proceedings in error. (Dunham v. Courtnay, 24 Neb., 627; Carlow v. Aultman, 28 Neb., 672; Gaughran v. Crosby, 33 Neb., 33.) It is equally well settled that the supreme court will not consider an assignment in a petition in error that the verdict of the jury or the finding of the court is not sustained by sufficient evidence, unless the evidence is before the court by a proper bill of exceptions. (Schroeder v. Rinehard, 25 Neb., 75; Leech v. Philpott, 12 Neb., 577; Robberts v. Hershiser, 20 Neb., 594.) The judgment is

Affirmed.