Bohling v. Bohling, 304 Neb. 968

Willis Bohling died and his daughter, Kimberly, filed for informal probate; his son, Robert, contested, and the matter was transferred from county court to district court.
Kimberly moved for summary judgment in the district court but did not file the required evidence index or annotated statement of undisputed facts under Neb. Ct. R. § 6-1526, and she failed to have the will and her affidavits formally marked and received into evidence.
At the hearing, the district court orally said it would consider Kimberly’s affidavits and "note" the will, overruled Robert’s objection to procedural noncompliance, and later entered summary judgment finding the will valid.
The bill of exceptions on appeal contained only Robert’s exhibits and affidavits; Kimberly’s will and affidavits were absent from the bill of exceptions and thus not part of the appellate record.
The Nebraska Supreme Court reversed the summary judgment because the proponent (Kimberly), as the movant, failed to produce admissible evidence preserved in the bill of exceptions to make a prima facie case; the court also discussed § 6-1526 and urged trial courts to enforce it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether movant met prima facie burden for summary judgment	Robert: Kimberly failed to present admissible prima facie evidence	Kimberly: Her affidavits and motion contained the evidence; failure to follow form not prejudicial	Reversed — Kimberly’s evidence was not in the bill of exceptions, so movant failed to make a prima facie showing
Whether noncompliance with Neb. Ct. R. § 6-1526 requires denial	Robert: Motion should be denied for failure to file evidence index and annotated facts	Kimberly: Substantive evidence was before the court in motion and brief; no prejudice	Court admonished that § 6-1526 should be enforced; trial courts have discretion but should not lightly excuse noncompliance
Whether judicial notice of the will could substitute for exhibit admission	Robert: Judicial notice or informal filing cannot replace formal admission into record	Kimberly: Court orally noted the will and said it would consider the affidavits	Judicial notice is a species of evidence and does not replace proper admission and preservation in the bill of exceptions
Whether genuine issues exist on ambiguity, capacity, undue influence	Robert: His affidavits raise material factual disputes	Kimberly: Will is valid; no material disputes	Court did not resolve merits — substantive issues must be relitigated because Kimberly’s supporting evidence was not preserved on appeal

Gomez v. Gomez, 303 Neb. 539 (2019) (reinforcing that a bill of exceptions is the vehicle for bringing evidence on appeal)
Lombardo v. Sedlacek, 299 Neb. 400 (2018) (discussing appellate review and evidentiary preservation)
Kaiser v. Union Pacific RR. Co., 303 Neb. 193 (2019) (movant bears prima facie burden on summary judgment)
In re Estate of Radford, 297 Neb. 748 (2017) (papers judicially noticed must be made part of the bill of exceptions)
Peterson v. George, 168 Neb. 571 (1959) (affidavits used at trial must be preserved in the bill of exceptions to be considered on appeal)
Berg v. Griffiths, 127 Neb. 501 (1934) (historic articulation of the rule that affidavits must be in the bill of exceptions)
Everts v. School Dist. No. 16, 175 Neb. 310 (1963) (statement that the bill of exceptions is the only vehicle for bringing evidence on appeal)
Sovereign Camp, W. O. W. v. Wiggins, 238 Ala. 424 (1939) (Alabama precedent on the limitations of bills of exceptions)