Prokop v. Mlady
| Decision Date | 11 July 1939 |
| Docket Number | 30617. |
| Citation | 287 N.W. 55,136 Neb. 644 |
| Parties | PROKOP v. MLADY ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. 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. In such case, if the pleadings sustain the judgment, it will be affirmed.
2. A written stipulation of facts forms no part of a record for review unless made so by a bill of exceptions.
3. New matter in the reply to the answer is treated as denied.
4. Pleadings examined and found to sustain the judgment of the district court.
Appeal from District Court, Knox County; Adolph E. Wenke, Judge.
Suit on a note by Thomas Prokop against Charles S. Mlady and Charles Pavlik, Sr. From a judgment in favor of Charles Pavlik, Sr. the plaintiff appeals.
Judgment affirmed.
James P. Marron, of O'Neill, and D. E. Rissler, of Crofton, for appellant.
A. L Burbridge, of Bloomfield, and Leigh & Krajicek, of Omaha, for appellees.
Heard before ROSE, EBERLY, PAINE, CARTER, MESSMORE and JOHNSEN, JJ., and LIGHTNER, District Judge.
Suit on a promissory note executed by Charles S. Mlady and Charles Pavlik, Sr. Mlady made all the payments and Pavlik pleads the statute of limitations. The finding was in favor of Pavlik, and plaintiff appeals.
The note was dated April 7, 1925, due in two years, and plaintiff alleged in his petition that interest was paid up to and including April 7, 1930. Suit was filed March 3, 1933. Plaintiff claims that the note did not outlaw by reasons of a provision in it to the effect that payment may be extended from time to time by agreement without notice and that after such extension or extensions the liability of all parties shall remain as if no extension had been made. The case was tried to the district court upon a stipulation of facts, and it also appears from the findings of the district court that defendant Pavlik testified at the trial. There is no bill of exceptions, but what purports to be a stipulation of facts is found in the transcript. Mr. Pavlik's testimony no where appears. The court did not make any special findings, but only a general finding in favor of defendant Pavlik.
" 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, also, State v. Barney, 133 Neb. 676, 276 N.W. 676; Hayes v. Pilger, 110 Neb. 609, 194 N.W. 727; In re Estate of Raymond, 128 Neb. 568, 259 N.W. 522.In such case, if the pleadings sustain the judgment, it will be affirmed.
A written stipulation of facts forms no part of a record for review unless made so by a bill of exceptions. State Ins. Co. v. Buckstaff Bros. Mfg. Co., 47 Neb. 1, 66 N.W. 27; Keeler v. Manwarren, 61 Neb. 663, 85 N.W. 839.Other cases to the same effect are Herbison v. Taylor, 29 Neb. 217, 45 N.W. 626; Bankers' Life Ass'n v. Commissioners of Douglas County, 61 Neb. 202, 85 N.W. 54.
Hayes v. Pilger, 110 Neb. 609, 194 N.W. 727, 728.
An examination of the pleadings shows that the petition sets forth the promissory note in question in the first paragraph and in the...
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Prokop v. Mlady
...136 Neb. 644287 N.W. 55PROKOPv.MLADY ET AL.No. 30617.Supreme Court of Nebraska.July 11, Syllabus by the Court. 1. 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 d......