Estep v. Schlesinger

Sullivan, J. This action was brought in the district court of Douglas county to foreclose three real estate mortgages. Isaac Wood and Eliza Wood were the fee owners of an undivided one-half of the mortgaged property. The other half was owned by two other defendants. The Woods answered denying plaintiff’s ownership of the mortgages and questioning the amount claimed to be due thereon. They also filed a cross-petition containing the usual allegations in actions for partition, and asked that the several shares and interests of the parties as therein alleged be confirmed and that referees be appointed to make allotment accordingly. To this pleading the plaintiff demurred, and the demurrer was sustained. It is now urged that the ruling on the demurrer was erroneous and that the judgment of foreclosure should, therefore, be reversed. We cannot consider the correctness of the decision, for the reason that no exception ivas taken. The order [63] being interlocutory, in the absence of an exception, is not reviewable. (Abbott v. Barton, 47 Neb. 822; Yager v. Lemp, 39 Neb. 93; Weich v. Calhoun, 22 Neb. 166.) Besides, this being an appeal, the only question for our determination is whether the judgment rendered is the one which ought to have been rendered on the pleadings and evidence. There is nothing whatever in the record before us that would warrant a decree for partition. The judgment is Affirmed.