¶1dissenting.
¶2I do not agree with the basis of the court’s opinion as to the necessity of a bill of exceptions. In denying the motion to set aside the default judgment, the trial court made an extended finding of facts in the form of a memorandum. This memorandum formed the basis of and was specifically referred to in the court’s order. The findings of fact are here as a part of the transcript. The appellant does not challenge those findings. It accepts them. The appellee here adopts those findings. The appellant here challenges the correctness of the order based upon those findings. It submits questions of law and not fact. Under these circumstances “an examination of the evidence adduced in the trial court” is not required. The reason for the rule requiring a bill of exceptions has no application to this situation. It would be. a futile thing, a needless expense, and encumber the record to bring up a bill of exceptions containing the showing upon which the findings are based.
¶3The absence of a bill of exceptions raises a presumption that the evidence supports the findings of fact made by the trial court. Joyce v. Tobin, 126 Neb. 373, 253 N. W. 413. This presumption becomes conclusive when the time for preparing, serving, settling and filing a proper bill of exceptions has passed. Adkisson v. Gamble, 143 Neb. 417, 9 N. W. 2d 711. So we have here a conclusive presumption that the evidence supports the findings of fact, reinforced by the fact that both parties so hold. Obviously, there is no need for a bill of exceptions, and no occasion to resort to a rule that requires a bill of exceptions to find out what the facts are. It is assignments of error that require an examination of the evidence that will not be considered here in the absence of a bill of exceptions. Anthony Doll & Co. v. Strien, 121 *241Neb. 43, 236 N. W. 149; In re Estate of Abts, 122 Neb. 714, 241 N. W. 270.
¶4In Reigle v. Cavey, 107 Neb. 446, 186 N. W. 323, we said: “When a case is brought to the supreme court on appeal without a bill of exceptions or special findings, the only question that can be considered by this court is the sufficiency' of the pleadings to sustain the judgment of the lower court.” In Clarke v. Penn Mutual Life Ins. Co., 128 Neb. 107, 257 N. W. 667, following the Reigle case, we said: “The rule is well settled that, in the absence of a bill of exceptions or special findings, only the sufficiency of the pleadings to sustain the judgment will be considered.” In Plantz v. Peony Park, 129 Neb. 338, 261 N. W. 826, we affirmed this ruling, and did again in Slosburg v. Hunter, 132 Neb. 529, 272 N. W. 571.
¶5' Authoritative texts state the rule as follows: “Where the error sought to be remedied appears upon the record, the party aggrieved may avail himself of it on appeal or writ of error without bill of exceptions, case, statement, or other statutory remedy, and in such case it is improper to bring a bill of exceptions, case, or other substitute therefor, to the appellate court. Accordingly, no bill'of exceptions, case, or statement is necessary where the matters presented for review sufficiently appear from the pleadings and proceedings of record, such as the question whether the pleadings or findings support the judgment, ….” 4 C. J. S., Appeal and Error, § 785, p. 1268. “If there is no bill of exceptions or settled case the findings are ordinarily controlling on appeal, and the only question for review is whether the pleadings and findings sustain the judgment, or the proper construction of the order appealed from.” 4 C. J. S., Appeal and Error, § 788, p. 1276. “Where the facts are specially found by the court, no bill of exceptions is necessary.” 3 Am. Jur., Appeal and Error, § 625, p. 240.
¶6We should answer the questions of law presented, so far as necessary to determine the appeal.