Snyder v. Nelson

Decision Date04 March 1983
Docket NumberNo. 81-746,81-746
Citation213 Neb. 605,331 N.W.2d 252
PartiesJim SNYDER, doing business as Jim Snyder Drilling Company, Appellee, v. Dale NELSON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment. Summary judgment may be properly granted where there exists no genuine issue as to any material fact in the case, the ultimate inferences to be drawn from those facts are clear, and the moving party is entitled to judgment as a matter of law.

2. Records: Appeal and Error. Assignments of error requiring an examination of the evidence are not available on appeal in the absence of a bill of exceptions, the bill of exceptions being the only vehicle for bringing evidence to this court. This remains so even though certain evidence has been physically filed in the office of the clerk of the trial court.

3. Records: Appeal and Error. Where there is no bill of exceptions, we are limited to an examination of the pleadings; if they are sufficient to support the judgment, we will not reverse the trial court.

4. Records: Appeal and Error. Where there is no bill of exceptions, it will be presumed on appeal that the evidence supports the trial court's judgment.

5. Foreign Judgments. Where the party against whom registration of a foreign judgment is sought appears in the proceeding, evidence has been taken, and there is no bill of exceptions, strict compliance with the statutory requirements relative to authentication as to subsequent entries affecting the judgment is not required.

John D. Sykora, Omaha, for appellant.

John B. Ashford of Bradford, Coenen & Ashford, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ.

CAPORALE, Justice.

Dale Nelson, defendant below, appeals from the granting of summary judgment to plaintiff-appellee, Jim Snyder, doing business as Jim Snyder Drilling Company, registering the latter's Colorado judgment in the principal sum of $20,934.64. We affirm.

The appellant Nelson contends the Nebraska trial court erred, first, in finding that the Colorado court had personal jurisdiction over his person and, second, in determining there were no disputed material facts such as would preclude decision of the case as a matter of law.

Summary judgment may be properly granted where there exists no genuine issue as to any material fact in the case, the ultimate inferences to be drawn from those facts are clear, and the moving party is entitled to judgment as a matter of law. First National Bank v. Rose, 213 Neb. 611, 330 N.W.2d 894 (1983); Mutual Benefit Life Ins. Co. v. Chisholm, ante p. 301, 329 N.W.2d 103 (1983); Stolte v. Blackstone, ante p. 113, 328 N.W.2d 462 (1982); Oehlrich v. Gateway Realty of Columbus, Inc., 209 Neb. 417, 308 N.W.2d 327 (1981); Metro. Tech. Community College v. South Omaha Industrial Park, 207 Neb. 472, 299 N.W.2d 535 (1980). It is in accordance with the foregoing rule that we must test this case.

Although it is appellant's responsibility to see that a bill of exceptions is filed in this court (see Neb.Ct.R. 5c(5) (Rev.1982)), Mr. Nelson, for whatever reason, has elected to not so favor us. There is, consequently, no evidence for us to review. It appears we most recently addressed this problem with respect to motions for summary judgment in DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 816, 316 N.W.2d 772, 774 (1982), wherein we stated: "In order to receive consideration on appeal, any affidavits used on a motion for summary judgment must have been offered in evidence in the trial court and preserved in and made a part of the bill of exceptions.... Included within the transcript is an affidavit ... and a copy of a petition .... However, neither of these items was received in evidence ... they do not form a part of the bill of exceptions, and under the rule cited above may not be considered on appeal." It has long been the rule that assignments of error requiring an examination of the evidence are not available on appeal in the absence of a bill of exceptions, the bill of exceptions being the only vehicle for bringing evidence to this court. This remains so even though certain evidence has been physically filed in the office of the clerk of the trial court. Hanson v. Hanson, 198 Neb. 675, 254 N.W.2d 699 (1977); Hubbell v. Farmers Ins. Group, 200 Neb. 472, 263 N.W.2d 863 (1978); Bulger v. McCourt, 179 Neb. 316, 138 N.W.2d 18 (1965). See, also, Neb.Ct.R. 5A(2) (Rev.1982), formerly rule 7.d.2. (Rev.1977).

We are limited, therefore, to an examination of the pleadings; if they are sufficient to support the judgment, we will not reverse the trial court. Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979); Hubbell v. Farmers Ins. Group, supra. Moreover, where there is no bill of exceptions, it will be presumed on appeal that the evidence supports the trial court's judgment. Tedco Development Corp. v. Overland Hills, Inc., 205 Neb. 194, 287 N.W.2d 49 (1980); Schroeder v. Homestead Corp., 171 Neb. 792, 107 N.W.2d 750 (1961), cert. denied 368 U.S. 32, 82 S.Ct. 146, 7 L.Ed.2d 90.

Appellee Snyder filed a petition pursuant to the Uniform Enforcement of Foreign Judgments Act, Neb.Rev.Stat. §§ 25-1587 et seq. (Reissue 1979). The petition, filed July 28, 1980, alleged the Colorado judgment, alleged the date of its entry, alleged the amount of the judgment, alleged that there were no subsequent entries affecting it, and prayed for its registration. In his answer appellant Nelson denied the operative allegations of the petition, including the allegation that there had been no subsequent entries affecting the judgment, and alleged a myriad of defenses and purported defenses. He also counterclaimed, praying, among other things, for return of the interest he had paid on the underlying promissory note, in one cause of action, and for sundry damages, in the second cause of action. The judgment of the Nebraska trial court recites that the matter was heard "upon the Motion of the Plaintiff for summary judgment, the pleadings in the case, the evidence submitted in support of and in opposition of said motion for summary judgment and the Court being fully advised in the premises finds that a judgment was entered against Defendant and in favor of Plaintiff on April 18, 1980 by the District Court for the City and County of Denver, State of Colorado, in the amount of $20,934.64, with interest at the rate of 8% per annum from April 18, 1980, plus Plaintiff's costs incurred in said proceeding in the amount of $195.60 and the Court further finds that the Plaintiff is entitled to have said foreign judgment registered in the District Court of Saunders County, Nebraska."

In order to answer the question as to whether appellee Snyder's petition supports the Nebraska trial court's judgment of registration, we must look to the requirements found in § 25-1589. That statute provides: "A petition for registration shall set forth a copy of the judgment to be registered, the date of its entry and the record of any subsequent entries affecting it, such as levies of execution, payments in partial...

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