Opinion
No. 83-551.
Filed March 2, 1984.
Records: Appeal and Error. In the absence of a bill of exceptions it will be presumed that the evidence sustained the findings of the trial court. The only issue that can be considered is whether the pleadings support the judgment.
Appeal from the District Court for Keith County: KEITH WINDRUM and JOHN P. MURPHY, Judges. Affirmed.
Patrick B. Hays, for appellant.
Donald E. Girard of Girard and Gale, for appellee Bank.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
This is an appeal from a judgment of foreclosure and subsequent sale of mortgaged real estate.
Appellant urges two errors on appeal: The court erred (1) in refusing to allow an answer to be filed out of time, and (2) in confirming the sale. We affirm.
There is no bill of exceptions. Assuming that the court abused its discretion in refusing to allow the appellant to file an answer out of time (a questionable assumption, since the tendered answer contained in the transcript admits the execution of the note and mortgage and pleads no affirmative defenses), the appellant waived the error by consenting in writing to the entry of the decree. In the brief the appellant simply ignores the execution of the consent. The assigned error is without merit and totally frivolous.
The appellant did not appear at the hearing on confirmation, did not request the court to set aside the sale, but simply appealed. In Caynor v. Caynor, 213 Neb. 143, 144, 327 N.W.2d 633, 634 (1982), we said: "No bill of exceptions has been filed in this case. The applicable rule is that in the absence of a bill of exceptions it will be presumed that the evidence sustained the findings of the trial court. The only issue that can be considered is whether the pleadings support the judgment."
The pleadings support the finding of the trial court that a subsequent sale would not realize a greater amount. Therefore, the judgment must be affirmed.
AFFIRMED.