Brierly v. Federated Finance Co.

Decision Date19 June 1959
Docket NumberNo. 34582,34582
Citation168 Neb. 725,97 N.W.2d 253
PartiesKenneth BRIERLY, Appellant, v. FEDERATED FINANCE COMPANY, a corporation, et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. An affidavit used as evidence in the district court cannot be considered on an appeal of a cause to this court unless it is offered in evidence in the trial court and preserved in and made a part of the bill of exceptions.

2. The fact that an affidavit used as evidence in the district court was filed in the office of the clerk of the district court and made a part of the transcript is not important to a consideration and decision of an appeal in the cause to this court. If such an affidavit is not preserved in the bill of exceptions, its existence or contents cannot be considered by this court.

3. In the absence of a bill of exceptions it is presumed that issues of fact presented by the pleadings are established by the evidence, that they were correctly decided, and the only issue that will be considered on appeal is the sufficiency of the pleadings to support the judgment.

E. D. Warnsholz, Lincoln, for appellant.

Wagener, Marx & Galter, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an action in equity filed by Kenneth Brierly in the district court for Lancaster County against Federated Finance Company, both as a corporation and as a partnership. The plaintiff, by this action, seeks to have cancelled an alleged promissory note executed by him on December 18, 1956, in the amount of $965.60 and the return of all payments he has made under and pursuant thereto because, as he claims, its provisions violate certain of the inhibitory provisions of the Nebraska Installment Loan Act, being sections 45-114 to 45-158, R.R.S.1943, as amended. In answer thereto the defendants filed a general denial.

After issues were thus joined both plaintiff and defendants filed motions for summary judgment. The trial court had a hearing upon these motions and in consideration of the pleadings, depositions, interrogatories, admissions, and affidavits on file found there was no genuine issue as to any material fact and that defendants, by reason thereof, were entitled to a judgment as a matter of law. It thereupon sustained defendants' motion for summary judgment and rendered judgment for the defendants, dismissing plaintiff's petition. This was done under and pursuant to the authority granted the trial court by section 25-1332, R.R.S.1943.

Plaintiff thereupon filed a motion for new trial and has perfected this appeal from the overruling thereof. Appellant says that it is his position that the trial court erred in overruling his motion for summary judgment and sustaining that of appellees, stating: 'There is only one relevant question of...

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7 cases
  • Blanco v. General Motors Acceptance Corp.
    • United States
    • Nebraska Supreme Court
    • June 3, 1966
    ...present a record of the cause which establishes the contrary. Bulger v. McCourt, 179 Neb. 316, 138 N.W.2d 18; Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253; Peterson v. George, 168 Neb. 571, 96 N.W.2d We do not have the benefit of a bill of exceptions in this case as the one......
  • U.S. Ecology, Inc. v. Boyd County Bd. of Equalization
    • United States
    • Nebraska Court of Appeals
    • May 5, 1998
    ...may not be considered." Huddleson v. Abramson, 252 Neb. 286, 288, 561 N.W.2d 580, 582 (1997). See, also, Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253 (1959) (affidavit contained in transcript but not preserved in bill of exceptions cannot be considered). Accordingly, we can......
  • Buker v. Buker, 42633
    • United States
    • Nebraska Supreme Court
    • February 20, 1980
    ...considered in disposing of issues presented by this appeal. Frye v. Frye, 158 Neb. 694, 64 N.W.2d 468 (1954); Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253 (1959); Peterson v. George, supra. We now look at error assignments (2) through (4). In making determinations of alimon......
  • Miller, Application of, 34573
    • United States
    • Nebraska Supreme Court
    • June 19, 1959
  • Request a trial to view additional results

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