Douglas v. Smith

70 N.W. 511, 50 Neb. 899, 1897 Neb. LEXIS 550

• Court: Nebraska Supreme Court
• Decided: March 17, 1897
• Docket: No. 7176
• Status: Published

Opinion

Post, C. J.

This was a proceeding by the plaintiff, George W. Douglas, in the district, court for Webster county to foreclose a certain real estate mortgage executed by Smith, the defendant. An answer was filed admitting the execution of the note and mortgage, and alleging as a defense thereto usury and payment in full, and which allegations were put in issue by the reply. A final decree was entered upon a finding in substantial accord with the allegations of the answer, and from which the plaintiff appeals.

No claim is made at this time that the decree is unsupported by the pleadings, the sole ground upon which a reversal is sought being the alleged insufficiency of the evidence. A paper purporting to be a bill of exceptions was at a previous term stricken from the files, on the ground that it was not allowed within the time or by any ■person authorized by law. The record accordingly presents for determination no question of law or fact, and the decree will therefore be affirmed. It is a rule settled by an unbroken line of decisions in this state that the unsuccessful party must preserve the evidence by means of a bill of exceptions in order to secure a review in this court of rulings upon questions of fact.

Affirmed.