Western Gravel Co. v. Gauer

Post, C. J. The plaintiff, against which decree had been entered by the district court for Cass county, prosecuted a pro247 eeeding by petition for a new trial under the provisions of section 318 of the Code. Said petition, upon final hearing thereof, was dismissed and a new trial denied, to Avhich order and judgment exception was taken and the cause by appropriate proceeding removed into this court for review. The only proposition necessary to notice at this time is that the record does not present the merits of the controversy, since the evidence upon the former hearing is not included in the bill of exceptions herein. Where a new trial is sought by means of a petition filed after the term at which the judgment or decree was rendered, the petitioner is required to show the evidence at the former trial when material, as well as the newly-discovered evidence or other ground alleged therefor, and both must be preserved in the bill of exceptions in order to entitle the unsuccessful party to a review of such proceeding by this court. (Omaha, N. & B. H. R. Co. v. O’Donnell, 24 Neb., 753.) The sole question presented by the petition in this case was whether, in view of the issues as finally made, the decree was warranted by the evidence. It is, there-, fore, clearly within the rule stated, and the judgment complained of must be Affirmed.