Appelget v. McWhinney

• Decision Date: 26 June 1894
• Citation: 59 N.W. 918,41 Neb. 253
• Parties: APPELGET v. MCWHINNEY ET AL.
• Court: Nebraska Supreme Court

41 Neb. 253

59 N.W. 918

APPELGET

v.MCWHINNEY ET AL.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

1. When no motion for a new trial is made in an equity case, the sufficiency of the evidence to sustain the finding will not be reviewed on petition in error.

2. This 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 supported by the evidence, unless the evidence is before the court by a proper bill of exceptions.

Error to district court, Johnson county; Broady, Judge.

Action by Anthony Appelget against Mary J. McWhinney and others. Decree for defendants, and plaintiff brings error. Affirmed.A. M. Appelget and T. Appelget, for plaintiff in error.

L. C. Chapman, for defendants in error.

NORVAL, 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, 39 N. W. 784;Carlow v. Aultman, 28 Neb. 672, 44 N. W. 873;Gaughran v. Crosby, 33 Neb. 33, 49 N. W. 776.

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, 40 N. W. 593;Leech v. Philpott, 12 Neb. 577, 12 N. W. 116;Roberts v. Hershiser, 20 Neb. 594, 31 N. W. 237. The judgment is affirmed.