Bartlett State Bank v. Johnston

195 N.W. 108, 110 Neb. 782, 1923 Neb. LEXIS 300

• Court: Nebraska Supreme Court
• Decided: September 22, 1923
• Docket: No. 22482
• Status: Published

Opinion

Good, J.

This is an appeal from an order confirming a judicial sale of real estate, made pursuant to an order of sale issued after decree in an action to foreclose a real estate mortgage. The only objection made is that the land was sold for less than its fair and reasonable value. This presents only a question of fact. The evidence has not been preserved in a 'bill of exceptions, so that this court is not advised as to evidence which was presented to the trial court. We must therefore presume that the finding and order was based on sufficient evidence.

Appellant in his brief directs our attention to two affidavits, appearing in the transcript, which purport to give the views of affiants as to the value of the land in question. This court has repeatedly held that affidavits, used as evidence on any issue of fact tried in the district court, cannot be considered in this court unless they are incorporated in a bill of exceptions. The reason for such holding is that, in the absence of a bill of exceptions properly authenticated, the court is not advised whether such affidavits were presented or considered by the trial court, nor does it know what other evidence may have been presented on the question. Among the many decisions of this court sustaining this view are: Morris v. Hines, 107 Neb. 788; Amos v. Eichenberger, 107 Neb. 416; Carmichael v. McKay, 81 Neb. 725; Duffy v. Scheerger, 91 Neb. 511; Schmidt v. Village of Papillion, 92 Neb. 511; Taylor v. American Radiator Co., 93 Neb. 24; Burrowes v. Chicago, B. & Q. R. Co., 85 Neb. 497; Crocker v. Steidl, 82 Neb. 850; Mercer v. Armstrong, 98 Neb. 645; Koepke v. Delfs, 95 Neb. 619.

The judgment of the district court is

Affirmed.