Storey v. Burns

74 N.W. 39, 53 Neb. 535, 1898 Neb. LEXIS 451

• Court: Nebraska Supreme Court
• Decided: February 2, 1898
• Docket: No. 7821
• Status: Published

Opinion

Harrison, C. J.

This action was commenced by the defendant in error in the district court of Adams county December 29, 1893, to procure the foreclosure of a real estate mortgage. Issues were joined, and on June 23, 1894, as a result of a trial, the defendant in error was awarded a decree.

The cause is presented to this court by petition in error on behalf of the defendants in the district court. There ivas no motion for a new trial filed for plaintiffs in error in the trial court. It is the rule that to obtain a review in this court by petition in error of the proceedings during the trial of such an action as this a motion for a new trial must be made in the trial court as in a law action. (Carlow v. Aultman, 28 Neb. 672; Hansen v. Kinney, 46 Neb. 207.) In an error proceeding to this court, where it appears that no motion for a new trial ivas filed in the district court, no further examination will be made than to ascertain whether the pleadings state a cause of action or defense and support the judgment or decree rendered, (Hansen v. Kinney, supra.) The petition in the present case states a cause of action and supports the decree. The latter must therefore be

Affirmed.