Storey v. Burns

Harrison, C. J. This action was commenced by the defendant in error in the district court of Adams county December 29, 1893, to procure the foreclosure of a real estate mortgage. Issues were joined, and on June 23, 1894, as a result of a trial, the defendant in error was awarded a decree. The cause is presented to this court by petition in error on behalf of the defendants in the district court. There ivas no motion for a new trial filed for plaintiffs in error in the trial court. It is the rule that to obtain a review in this court by petition in error of the proceedings during the trial of such an action as this a motion for a new trial must be made in the trial court as in a law action. (Carlow v. Aultman, 28 Neb. 672; Hansen v. Kinney, 46 Neb. 207.) In an error proceeding to this court, where it appears that no motion for a new trial ivas filed in the district court, no further examination will be made than to ascertain whether the pleadings state a cause of action or defense and support the judgment or decree rendered, (Hansen v. Kinney, supra.) The petition in the [536] present case states a cause of action and supports the decree. The latter must therefore be Affirmed.