1. An assignment of error in overruling a demurrer to an answer is not available where the plaintiff afterwards replied to the answer.

2. Unless there is a bill of exceptions containing all the evidence, this court will not review the findings of fact in the lower court.

3. Evidence tending to show an arrangement whereby property purchased at foreclosure sale by a prior lienholder was to be held for the benefit of a subsequent lienholder, and that the latter afterwards became the beneficial owner thereof by a conveyance pursuant to such arrangement, does not contradict or vary the sheriff's return setting forth the sale and the sum realized therefrom.

Commissioners' Opinion. Department No. 3. Error to District Court, Cherry County; Westover, Judge.

"Not to be officially reported."

Action by Irwin H. Emery against David Hanna, ex sheriff of Cherry county, and others. Judgment for defendants, and plaintiff brings error. Affirmed.

John M. Tucker, for plaintiff in error. A. M. Morrissey, for defendants in error.

The

POUND, C. The plaintiff was the holder of a third lien under a decree of foreclosure. Sale was had pursuant to the decree, and the sheriff's return showed a small surplus over and above the first and second liens for application upon the plaintiff's claim. plaintiff alleges that, relying upon the sheriff's return, he purchased the second lien, and he seeks to recover the amount shown by the return as available for satisfaction of such second lien, and for application upon his third lien. The answer is, in substance, that the property was purchased by the holder of the first lien in trust for the plaintiff, under an agreement whereby the former was to hold it until the plaintiff paid him the amount of the first lien, and was then to turn it over, and that afterwards, in pursuance of such arrangement, the property was conveyed to a third person at the instance and request of plaintiff, and is now held in trust for him by such third person; the plaintiff himself being in possession, and being the real and beneficial ownIt is further alleged that no money was

er.

1. See Pleading, vol. 39, Cent. Dig. § 1406.

ever paid, but that the plaintiff by said arrangement obtained credit upon his lien for the amount of the surplus. A demurrer was filed to this answer and overruled, whereupon the plaintiff replied. There was a verdict and judgment for the defendant.

The errors assigned are that the court erred in overruling the demurrer, that the findings are contrary to the evidence, and that the court erred in admitting parol evidence to contradict or vary the sheriff's return. The assignment that the court erred in overruling the demurrer to the answer cannot be sustained, for the reason that error in that respect, if any, was waived by replying. Harral v. Gray, 10 Neb. 188, 4 N. W. 1040; Dorrington v. Minnick, 15 Neb. 400, 19 N. W. 456. There is no assignment that the judgment is contrary to law or not sustained by the pleadings, and the sufficiency of the answer is not in any way presented. No bill of exceptions was settled, but, instead, there is a mere stipulation purporting to set forth "the substance" of the evidence. It is well settled that the findings of fact in the trial court will not be reviewed in the absence of a bill of exceptions containing all the evidence. Faulkner v. Meyers, 6 Neb. 414; Aspinwall v. Sabin, 22 Neb. 73, 34 N. W. 72, 3 Am. St. Rep. 258. If a material portion of the evidence has been omitted, a verdict or finding of fact will not be reviewed. Anderson v. Beeman, 52 Neb. 387, 72 N. W. 361. This is true even where the bill of exceptions purports to contain all the evidence, if there is a palpable omission. Scott v. Society of Russian Israelites, 59 Neb. 571, 81 N. W. 624. In view of these authorities, we cannot be expected to review the findings of fact upon a stipulation which goes no further than to state the substance of the evidence in the most meager fashion.

The stipulation sets forth that evidenco was introduced in support of the allegations in the answer, and was objected to as incompetent on the ground that the sheriff's return could not be varied or contradicted by parol. We do not see any reason to think that the parol-evidence rule is involved in this case. The defendant did not seek to impeach or vary his return by the answer. He admitted that there had been a sale as returned,. and that the amount set forth in the return had been realized at such sale. Admitting this, he pleaded and sought to show an arrangement between the plaintiff and the prior lienholder whereby, in effect, the plaintiff received credit upon his lien for the proceeds in excess of the prior liens. So far as the answer discloses, the defendant's case was that plaintiff had been paid, not that the amount returned had not been realized at the sale.

We therefore recommend that the iudgment be affirmed.

DUFFIE and KIRKPATRICK, CC., con

cur.

PER CURIAM. The conclusions reached by the Commissioners are approved, and, it appearing that the adoption of the recommendations made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

GATZMEYER v. PETERSON.

(Supreme Court of Nebraska. April 30, 1903.) BASTARDY-CONSTITUTIONAL LAW CONTINUANCE-DENIAL-CROSS-EXAMINATION EVIDENCE-INSTRUCTIONS-DAMAGES.

1. Chapter 37, Comp. St., held constitutional and valid.

2. If sufficient time is given from denial of a motion for a continuance sought in order to obtain a deposition to enable it to be taken under ordinary circumstances, and from the showing made upon the motion there is no ground to believe it can be procured in any reasonable time if not in that allowed, it is not error to deny the continuance.

3. The trial court has a certain discretion in determining the limits of cross-examination, and reasonable limitation with respect to matters not necessarily material, in the exercise of such discretion, is not erroneous.

4. An offer by the defendant in bastardy proceedings to take the prosecutrix away to a physician for the purpose of getting rid of the child is not an offer of compromise, and may be shown as an admission.

5. Errors in giving and refusing instructions are not prejudicial, and need not be reviewed, where the verdict rendered is required by the evidence.

6. An instruction that the unsupported testimony of the prosecutrix should be received with caution and weighed carefully, on the theory that she should be regarded as an accomplice, is properly refused. Her interest in the event of the case may be considered, but the instruction should go no further.

7. The amount which a defendant in bastardy proceedings shall be adjudged to pay is largely in the discretion of the district court, and its award will not be disturbed unless manifestly excessive.

(Syllabus by the Court.)

Commissioners' Opinion. Department No. 2. Error to District Court, Cuming County; Graves, Judge.

Action by Dovey Peterson against George Gatzmeyer. Judgment for plaintiff. Defendant brings error. Affirmed.

Ira Thomas and W. W. Sinclair, for plaintiff in error. Anderson & Keefe, for defendant in error.

POUND, C. Although the numerous points urged upon our attention present nothing which has not been passed upon in this court more than once in like cases, the diligence and ingenuity of counsel in endeavoring to give some of them new phases, or put them in new lights, requires us to pass upon them in some detail. The points going to the merits relate to the constitutionality of the bastardy law, under which this proceeding is prosecuted, and the sufficiency of the evidence to support the verdict. Every possible objection to the constitutionality of the stat

17. See Bastards, vol. 6, Cent. Dig. §§ 196, 197.

ute has been presented in prior cases. Ex parte Donahoe, 24 Neb. 66, 38 N. W. 2: Stoppert v. Nierle, 45 Neb. 106, 63 N. W. 382 See, also, In re Walker, 61 Neb. 803, 86 N. W. 510. Moreover, the construction of the stat ute upon which counsel base their argument in large part was rejected in State v. Me Bride (Neb.) 90 N. W. 209. As to the suffciency of the evidence, we need only say that to our minds, the verdict is not only supported by the evidence, but is clearly right. Bearing in mind that the defendant did rot see fit to testify, which is a matter proper to be considered in such cases (Ingram v. State, 24 Neb. 33, 37 N. W. 943), we do not see how any other conclusion could have been reached.

Most of the other errors assigned have to do with matters of procedure and rulings at the trial. At the opening of the term of court the defendant moved for a continuanez in order to enable him to procure the testimony of a witness. It appears that he had made an attempt to secure the deposition of this witness, and had not succeeded owing to failure of the witness to attend at a time and place agreed on for that purpose. Defendant testified that he was informed the witness had left for some temporary purpose, and that his exact whereabouts could not be learned. The motion was overruled on September 12th, and the cause was thereupon passed to the foot of the docket, and not called for trial until September 24th. If the absence was temporary only, this postponement ought to have enabled the defendant to locate the witness and take his deposition, since be was known to be somewhere in a particular portion of a neighboring state. If he could not be reached in that time, there was very little likelihood that his testimony could be had at all in any reasonable time, and the affidavit filed shows no reason for thinking the contrary. Under such circumstances, it was not error to deny the continuance. Me Clelland v. Scroggin, 48 Neb. 141, 66 N. W. 1123.

Several rulings upon the admission of eridence are complained of. The prosecutrix testified, and it was not denied, that she and the defendant were engaged to be married. It appears from her testimony and that of other witnesses that, except while the defendant was away at school, he had been calling upon her, taking her out riding, and going with her to dances and other entertainments, with more or less regularity during two years. Her relations with him for some four months of this period are testified to positively, circumstantially, and repeatedly by the prosecutrix, and not denied by the defendant. The latter, relying on the expert evidence of a physician as to the probable date of conception, attempted to show an allbi as to certain particular occasions, without taking the stand himself. It is admitted, substantially, that the statements of the prosecutrix are true, except as to these particular

occasions. On cross-examination she was asked if she was not "keeping company" with another man also at that time. We cannot say that the court committed prejudicial error in excluding this and like questions. The defendant was allowed to show fully all the facts as to her conduct with other men, and seems to have established everything that was to be shown. So long as the existence of improper relations between the prosecutrix and defendant are clearly established, and the evidence as to her conduct with others goes no further than to suggest some possible grounds for suspicion, we do not think the case comes within the facts of Burris v. Court, 34 Neb. 187, 51 N. W. 745. There the trial court excluded evidence of other witnesses tending strongly to show improper relations with third parties. Here it went no further than to limit cross-examination as to a point not necessarily material. This was a proper exercise of the discretion which exists in such cases. Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N. W. 744; Stough v. Ogden, 49 Neb. 291, 68 N. W. 516.

Other assignments of error relate to the admission of evidence as to an alleged offer to compromise. If the circumstances testified to amounted fairly to an attempt at compromise, counsels' points might be well taken. But we think they must be considered as admissions on the part of the defendant, and were provable as such. In Robb v. Hewitt, 39 Neb. 217, 58 N. W. 88, this court held that "an offer made by the defendant to the father of the prosecutrix to contribute money for the purpose of sending the prosecutrix away' is not an offer of compromise, and is admissible in evidence." In the case at bar it is shown that the defendant, when the prosecutrix became pregnant, and he was asked to marry her pursuant to his promise, offered to take her to a physician in Omaha for the purpose of "getting rid" of the child. The evidence was received properly.

A large number of errors are assigned upon the charge of the court and its rulings on requests for instruction. We are of opinion that we need not consider them in view of the conclusion we have reached upon the evidence. Jeffres v. Cashman, 42 Neb. 594, 60 N. W. 895. But we have examined the instructions given and refused, and think the objections urged are hypercritical, and that nothing prejudicial has been shown. Among the requests refused was one based upon the theory that the prosecutrix was to be regarded as an accomplice in weighing her evidence, and that her statements were to be received with caution, and weighed carefully. We know of no warrant for such an instruction. Her unsupported evidence would have sustained a conviction. Olson v. Peterson, 33 Neb. 358, 360, 50 N. W. 155; Robb v. Hewitt, 39 Neb. 217, 58 N. W. 88. An instruction that her interest in the event of the case might be considered was all that the defendant was entitled to.

Finally, it is urged that the award made by the court is excessive. The amount of the judgment in such cases is largely in the discretion of the district court, and will not be reduced unless such discretion has been manifestly abused. Clark v. Carey, 41 Neb. 780, 60 N. W. 78; Wurdeman v. Schultz, 54 Neb. 404, 74 N. W. 951. That court has a clear advantage over this one in that it sees the parties, and is better able to form an opinion as to their circumstances, and the expense of suitably maintaining the child in view thereof. In the case at bar we see no reason to think that any wrong has been done.

It is therefore recommended that the judgment be affirmed.

GLANVILLE, C. This is an action commenced by the defendant in error William Lell in the district court of Holt county to restrain the collection of a judgment rendered against him in justice court in Lancaster county, and to quiet title to certain real estate in Holt county against the lien of the judgment which had been duly transcripted and docketed in that county. The plaintiffs in error were made defendants to the action, and demurred to the petition upon the ground that it does not state facts sufficient to constitute a cause of action. Their demurrer being overruled, they, having excepted, elected to stand thereon, and judgment was rendered against them according to the prayer of the petition. The case is brought here upon petition in error questioning the correctness of the ruling of the district court upon the demurrer and its judgment upon the petition.

The judgment in question was rendered

upon a promissory note given by the defendant in error, which he claims was fraudulently procured by J. A. Huddelson, as the agent of Anna M. Huddelson, his wife, and which he claims to have repudiated long before the action was brought, and which he also alleges was then barred by the statute of limitations. That portion of the petition which it is necessary to consider in determining this case is as follows: "That for the fraudulent and illegal purpose of enforcing said note of $70.60 against this plaintiff, and the fraudulent and illegal purpose of recovering a judgment against this plaintiff on said note, the defendant J. A. Huddelson caused said note to be indorsed over to him without recourse by Anna M. Huddelson, and delivered the same to the defendants Hess & Salisbury, his attorneys. That the defendants Hess & Salisbury then instituted an action before one Fritz Westerman, a justice of the peace of Lancaster county, Nebraska, on the said $70.60 note, against this plaintiff and J. A. Huddelson in the month of June, 1900. That said J. A. Huddelson was in no manner liable on said note, and neither was this plaintiff, and said J. A. Huddelson was only joined as a defendant for the fraudulent purpose of vesting said justice of the peace with apparent jurisdiction over this plaintiff. That a summons was thereupon served on this defendant in Holt county in said action, and no other service was ever made on this plaintiff in said action, and this plaintiff never entered any appearance in said action. That said cause was tried before said justice of the peace of the 9th day of July, 1900, and in his own behalf, and by the procurement of the plaintiffs in that action, and by collusion with them, the said J. A. Huddelson falsely, knowingly, and feloniously testified to the following facts, knowing the same to be false. That in the trial before said justice of the peace said J. A. Huddelson testified that this plaintiff, in the city of O'Neill, Nebraska, in the spring of 1895, had signed a written agreement extending the time of payment of said note until the 1st day of October, 1895, and he further testified that he had lost or mislaid said written agreement. That all of said testimony was material in said action, and was for the express purpose of preventing the running of the statute of limitations. That this defendant never signed any agreement for any extension of the time of the payment of said note. That by said testimony the said court was imposed upon, and said court believed the testimony of said J. A. Huddelson, and thereupon judgment was entered in said action in favor of Hess & Salisbury and against this plaintiff and J. A. Huddelson for $113.60, and costs taxed at $6.80."

Conceding that the entire petition states facts constituting a meritorious defense to the action upon the note, and also conceding that it states facts constituting a good plea in abatement to the action as brought in Lan

caster county, yet we think the demure should have been sustained. The petites states, "This plaintiff never entered any ap pearance in said action." The defense at the statute of limitations was, therefore waived, and the testimony of J. A. Hudder son complained of was irrelevant, did not bear upon any issue, was entirely unneces sary as to the determination of their action and cannot be made the basis of an action to cancel the judgment as having been obtaine! by fraud. There is no other allegation that the plaintiffs in any manner procured th judgment by fraud, except that the said I. A. Huddelson was joined as a defendant for the fraudulent purpose of allowing the justice of the peace in Lancaster county to obtais jurisdiction over the defendant Lell. The petition shows that Huddelson was joined as a defendant, and served with summons a Lancaster county, that the defendant Le was served with summons in Holt county, that judgment was rendered against both Huddelson and Lell, and that the defendant Lell made no appearance in said action. He could have appeared and pleaded that the action was not prosecuted in the name of the real party in interest, that the action was barred by the statute of limitations, or any other defense to the action, and at the same time questioned the jurisdiction of the court by proper averments as to Huddelson's liability, and collusion between him and the plaintiffs. The defendant Lell therefore had a plain, adequate remedy at law, which he neglected, but rather allowed judgment to go against him by default in an action wherein the service of summons appears upon the face of the record to have been regular and sufficient to give the court jurisdiction.

The case of Mayer v. Nelson, 54 Neb. 431, 74 N. W. 841, was one where a defendant was served with summons in Lancaster county while attending court therein in response to a subpoena. He appeared, specially challenging the jurisdiction of the court, and. when his objection to the jurisdiction of the court was overruled, he failed to appear further, but allowed judgment to go against him by default. He afterwards attempted to restrain its collection by proceedings in equity, and this court dismissed his action, be cause "a court of equity will not enjoin the enforcement of a judgment of a justice of the peace where it appears that a plain and adequate remedy existed at law." In that opinion Norval, J., uses the following language: "Nelson had an adequate remedy at law by appealing from the judgment or prosecuting a petition in error to the district court. Hurlburt v. Palmer, 39 Neh. 158 [57 N. W. 1019): Anheuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897 [60 N. W. 373]; Dunn v. Haines, 17 Neb. 560 [23 N. W. 501]. The doctrine of these cases is that an objection to the jurisdiction of the court over the person is not waived by appealing or prosecuting an error proceeding, and that the want of jurisdic

ion, which is not disclosed by the face of the record, may be set up by answer. As a plain and adequate remedy existed at law, a court of equity will not enjoin the enforcement of the judgment rendered by the justice. Gonld v. Loughran, 19 Neb. 392 [27 N. W. 397]; Langley v. Ashe, 38 Neb. 53 [56 N. W. 720]. * Plaintiff below has mistaken his remedy. The decree is reversed, and the action dismissed." We think the decision in that case is decisive of the case before us, and that the demurrer to the petition is good.

A case more exactly in point, perhaps, is Hobson v. Cummins, 57 Neb. 611, 78 N. W. 295, wherein a petition was filed asking a court of equity to restrain the collection of a judgment. and, a general demurrer to the petition having been overruled, the defendant elected to stand, and a decree was rendered against him. This court reversed the case, and the opinion contains the following language: "In the action in which the judgment sought to be enjoined was rendered, Hayden was served with process in Red Willow county, and summons was issued to and was served upon Cummins in Dawson county. Neither defendant appeared in the action. It is now argued that the county court of Red Willow county did not acquire Jurisdiction over the person of Cummins, for the reason that Hayden was a nominal defendant merely, and the service of summons upon him in the county in which the writ issued conferred no power to summon the other defendant in another county. The doctrine announced by this court in numerous cases, and which is invoked herein, is that in a personal action the service of a summons in a county where suit is brought on a nominal defendant merely does not confer authority to issue summons to another county for a real defendant. Dunn v. Haines, 17 Neb. 560 [23 N. W. 501]: Cobbey v. Wright, 23 Neb. 250 [36 N. W. 5051; Hanna v. Emerson, 45 Neb. 708 [64 N. W. 229]. The rule stated might have been urged in the county court of Red Willow county before the judgment against Cummins was rendered, and if it had been shown that his codefendant, Hayden, had no substantial interest in the subject of the suit, but was merely a nominal party to the proceeding, no judgment could have been obtained against Cummins." "If there was collusion or fraud between the execution and judgment plaintiff and Hayden, that was a matter which should have been made an issue in the county court of Red Willow county before the entry of the judgment. The question is not now available." "It is contended that the action brought against Cummins was barred by the statute of limitations. The defense of the statute was neither interposed by demurrer nor answer, and therefore is waived."

The case before us is ruled by the cases cited, as well as on principle by a long line of decisions of this state, commencing with 94 N.W.-62

Horn v. Queen, 4 Neb. 108, which holds that, to authorize a court of equity to grant relief against a judgment, it must appear that the party seeking relief has not been negligent. In Scofield v. State Nat. Bank, 9 Neb. 316, 2 N. W. 888, 31 Am. Rep. 412, it is held a petition to enjoin a judgment must set forth facts from which it is made to appear, among other things, that the plaintiffs were not guilty of neglect in not making their defense. In Young v. Morgan, 13 Neb. 48, 13 N. W. 1, it is stated: "The rule is well settled that equity will afford no relief against a judgment to a party who has purposely or negligently omitted to make his defense at law." In Shufeldt v. Gandy, 34 Neb. 32, 51 N. W. 302, it is said: "Equity will not interfere to relieve a party, who, being under no disability, has failed to make his defense at law on account of his own negligence." In Langley v. Ashe, 38 Neb. 53, 56 N. W. 720, it is held: "A petition in equity to enjoin the enforcement of a judgment of a justice of the peace which does not aver facts from which it appears (1) that the plaintiff has a meritorious defense to the cause of action on which the judgment is based, and (2) that his failure to interpose such defense in the justice court, and to avail himself of an appeal or proceedings in error, was not due to neglect or default on his part, does not state a cause of action." In Norwegian Plow Co. v. Bollman, 47 Neb. 186, 66 N. W. 292, 31 L. R. A. 747, it is held: "A court of equity will not enjoin a judgment at law upon the ground of fraud where it does not appear that such judgment is inequitable, or where it is disclosed that plaintiff has not exercised due diligence in the assertion of his rights." In Cleland v. Hamilton L. & T. Co., 55 Neb. 13, 75 N. W. 239, it is said: "A party seeking relief in equity from a judgment taken against him by default must exhibit a defense to the action, and also show that the rendition of such judgment was not due to his failure to take such proper steps for his own protection as an adequate foresight of consequences would naturally suggest." The rulings of this court in many other cases are to the same effect. The petition filed by the defendant in error neither states in terms nor shows by its statement of fact that he had no adequate remedy at law, but, on the contrary, affirmatively shows that he had such remedy, and neglected to pursue it, and he is not entitled to relief against the judgment in question in a court of equity upon facts pleaded.

Whether the petition can be so amended as to state a good cause of action for any relief in equity we are unable to determine.

We therefore recommend that the judgment of the district court be reversed, and the cause remanded to said court, with directions to proceed therein in accordance with the foregoing opinion.

ALBERT and BARNES, CC., concur.