Younie v. Specht

99 Neb. 621 | Neb. | 1916

Letton, J.

Action to restrain the execution and delivery of a sheriff’s deed in proceedings taken under a judgment alleged by plaintiff to be void. The petition alleges that the judgment is wholly void on account of jurisdictional defects in the constructive service, and that the deed, if executed, will cast a cloud upon the title of plaintiff. The coart found that the allegations of the petition were not supported by the evidence and for the defendant generally.. Plaintiff appeals.

A transcript of the judgment was filed in this court in due time. Attached to it are filed two papers, one purporting to be a copy of an affidavit for service by publication, the other a copy of an order for service by publication in-the action on which the judgment was based. A stipulation is also attached, which states that the. papers of which these are copies “were the only extraneous evidence of any kind offered or considered by the court,” and “that attached to this stipulation are full, true and correct copies of said affidavit for service by publication and the order for service by publication hereinabove described, and by agreement they are to be considered by the supreme court in reviewing the ruling of the district court upon the pleadings in the case first entitled herein.”

Such, a stipulation cannot he considered unless brought up by a bill of exceptions. State Ins. Co. v. Buckstaff, 47 Neb. 1. It is there said: “A stipulation of the attorneys in a cause is no more part of the record than a deposition or any other evidence which may have been improperly included in the transcript. Matters which are not properly part of the record cannot be made so by being improperly inserted in the transcript. A stipulation of facts or mode of proof cannot take the place of a bill of exceptions. Credit Foncier of America v. Rogers, 8 Neb. 34; State v. Knapp, 8 Neb. 436; Herbison v. Taylor, 29 Neb. 217; McCarn v. Cooley, 30 Neb. 552. This stipulation could have been brought into the record by a bill of exceptions; but, that not having been done, it is not properly before the court, and -hence it cannot be considered.” Keeler v. Manwarren, 61 Neb. 663.

We must follow the settled policy of the court. It would be manifestly unfair to the district courts to review their proceedings upon evidence which has never been brought into the record, nor examined and certified as a part of it by the district judge.

The pleadings are sufficient to sustain the judgment, and it is therefore

Affirmed.

Fawcett and Sedgwick, JJ., not sitting.