Keeler v. Manwarren

• Decision Date: 10 April 1901
• Docket Number: 9,456
• Citation: 85 N.W. 839,61 Neb. 663
• Parties: WILLIAM KEELER, APPELLEE, v. CHARLES MANWARREN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

85 N.W. 839

61 Neb. 663

WILLIAM KEELER, APPELLEE, v. CHARLES MANWARREN ET AL., APPELLANTS

No. 9,456

Supreme Court of Nebraska

April 10, 1901

APPEAL from the district court for Hitchcock county. Heard below before NORRIS, J. Affirmed.

AFFIRMED.

John W Cole, for appellants.

B. F Smith, contra.

OPINION

HOLCOMB, J.

On an application to confirm a sale of real estate made under a decree in proceedings of foreclosure of a real estate mortgage the defendant objected to the confirmation on the ground that the notice of sale had not been published in a legal newspaper, within the meaning of chapter 49, Session Laws, 1895. We are prevented from reviewing the ruling of the trial court on the objection, because the evidence on which the same was had has not been properly preserved in a bill of exceptions. In the absence of a record containing the evidence, the presumptions are all in favor of the correctness of the ruling made, and the presumption will be that the same was based on sufficient evidence to sustain it. There is in the record no bill of exceptions or anything purporting to be one.

A stipulation of the parties as to the purported facts regarding the publication of the newspaper in which the notice was published is copied in, and sought to be made a part of, the transcript of the proceedings in the case, and certified to as such by the clerk. Such a stipulation is however, no part of the transcript, and can not be considered for the purpose of determining the sufficiency of the evidence introduced before the trial court in passing on the objections to confirmation. Says this court, in State Ins. Co. v. Buckstaff Bros. Mfg. Co., 47 Neb. 1, 66 N.W. 27: "The steps requisite to preserve the evidence upon which the jury found their verdict and the rulings of the court during the trial have...