In re Raymond's Estate

• Decision Date: 22 March 1935
• Docket Number: 29220.
• Citation: 259 N.W. 522,128 Neb. 568
• Parties: IN RE RAYMOND'S ESTATE. v. SMITH. RAYMOND
• Court: Nebraska Supreme Court

259 N.W. 522

128 Neb. 568

IN RE RAYMOND'S ESTATE.

RAYMOND v. SMITH.

No. 29220.

Supreme Court of Nebraska.

March 22, 1935

Syllabus by the Court.

1. Where a cause is brought to the Supreme Court on appeal without a bill of exceptions or special findings, the only question that can be considered by the court is the sufficiency of the pleadings to sustain the judgment of the lower court.

2. " In the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined." Backes v Schlick, 82 Neb. 289, 117 N.W. 707.

Appeal from District Court, Dawson County; Nisley, Judge.

In the matter of the Estate of Benjamin F. Raymond, deceased. Proceedings by W. Rollin Smith, as administrator, for confirmation of sale of decedent's realty, in which Henry Raymond intervened. From an adverse judgment, intervener appeals.

Affirmed.

M. O Bates, of Lexington, for appellant.

Hamer & Tye, of Kearney, and W. A. Stewart, Jr., of Lexington, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOOD Justice.

Henry Raymond, intervener in the above entitled cause, appeals from a judgment dismissing his petition in intervention and from an order confirming an administrator's sale of realty.

There is no bill of exceptions. The rule is that, where a case is brought to the Supreme Court on appeal without a bill of exceptions or special findings, the only question that can be considered by the court is the sufficiency of the pleadings to sustain the judgment of the lower court. Stuart v Burcham, 50 Neb. 823, 70 N.W. 383; Beatrice Savings Bank v. Beatrice Chautauqua Assembly, 54 Neb. 592, 74 N.W. 1065; Kerr v. Adams County, 96 Neb. 178, 147 N.W. 683; Reigle v. Cavey, 107 Neb. 446, 186 N.W. 323; Gaines v. Warrick, 113 Neb. 235, 202 N.W. 866; Troyer Furniture Co. v. Orchard & Wilhelm Co., 121 Neb. 301, 237 N.W. 144.

It is also the rule that, " in the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined." Backes v. Schlick, 82 Neb. 289, 117 N.W. 707, 708.See Reigle v. Cavey, supra; Kerr v. Adams County, supra.

From the pleadings it appears that W. Rollin Smith, as administrator of the estate of Benjamin F. Raymond, deceased by proper proceedings duly asked for and obtained a license to sell real estate of his decedent for the payment of debts. The realty, for the sale of which license was granted, consisted of 160 acres of land in Custer county and a residence property in the city of Lexington. Pur suant to the license, both of the properties were advertised for sale, and the residence property in Lexington was sold; the administrator reported such sale to the court and asked for confirmation thereof. The land in Custer county was not sold for want of bidders. At this point in the proceedings Henry Raymond, a brother of Benjamin F. Raymond, intervened and alleged in his petition that the real estate in question did not belong to the estate of Benjamin F. Raymond but that the realty belonged to and was owned by intervener. He further alleged that he and his wife had executed a deed in which the name of grantee was left blank, and left the...