First National Bank & Trust Co. v. Lehl

Nebraska Supreme Court

First National Bank & Trust Co. v. Lehl

345 N.W.2d 25, 216 Neb. 704, 1984 Neb. LEXIS 979

CourtNebraska Supreme Court

DecidedMarch 2, 1984

DocketNo. 83-551

StatusPublished

This text of 345 N.W.2d 25 (First National Bank & Trust Co. v. Lehl) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First National Bank & Trust Co. v. Lehl, 345 N.W.2d 25, 216 Neb. 704, 1984 Neb. LEXIS 979 (Neb. 1984).

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Opinion

White, J.

This is an appeal from a judgment of foreclosure and subsequent sale of mortgaged real estate.

Appellant urges two errors on appeal: The court [705]*705erred (1) in refusing to allow an answer to be filed out of time, and (2) in confirming the sale. We affirm.

There is no bill of exceptions. Assuming that the court abused its discretion in refusing to allow the appellant to file an answer out of time (a questionable assumption, since the tendered answer contained in the transcript admits the execution of the note and mortgage and pleads no affirmative defenses), the appellant waived the error by consenting in writing to the entry of the decree. In the brief the appellant simply ignores the execution of the consent. The assigned error is without merit and totally frivolous.

The appellant did not appear at the hearing on confirmation, did not request the court to set aside the sale, but simply appealed. In Caynor v. Caynor, 213 Neb. 143, 144, 327 N.W.2d 633, 634 (1982), we said: “No bill of exceptions has been filed in this case. The applicable rule is that in the absence of a bill of exceptions it will be presumed that the evidence sustained the findings of the trial court. The only issue that can be considered is whether the pleadings support the judgment.’’

The pleadings support the finding of the trial court that a subsequent sale would not realize a greater amount. Therefore, the judgment must be affirmed.

Affirmed.

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White, J.

This is an appeal from a judgment of foreclosure and subsequent sale of mortgaged real estate.

Appellant urges two errors on appeal: The court [705]*705erred (1) in refusing to allow an answer to be filed out of time, and (2) in confirming the sale. We affirm.

There is no bill of exceptions. Assuming that the court abused its discretion in refusing to allow the appellant to file an answer out of time (a questionable assumption, since the tendered answer contained in the transcript admits the execution of the note and mortgage and pleads no affirmative defenses), the appellant waived the error by consenting in writing to the entry of the decree. In the brief the appellant simply ignores the execution of the consent. The assigned error is without merit and totally frivolous.

The appellant did not appear at the hearing on confirmation, did not request the court to set aside the sale, but simply appealed. In Caynor v. Caynor, 213 Neb. 143, 144, 327 N.W.2d 633, 634 (1982), we said: “No bill of exceptions has been filed in this case. The applicable rule is that in the absence of a bill of exceptions it will be presumed that the evidence sustained the findings of the trial court. The only issue that can be considered is whether the pleadings support the judgment.’’

The pleadings support the finding of the trial court that a subsequent sale would not realize a greater amount. Therefore, the judgment must be affirmed.

Affirmed.

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Bluebook (online)

345 N.W.2d 25, 216 Neb. 704, 1984 Neb. LEXIS 979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-trust-co-v-lehl-neb-1984.

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