Bemenderfer v. Walker

Decided November 19, 1908

Nebraska Supreme Court · decided 1908-11-19

<p>Wills: Probate: Review. Where an appeal is taken to the district court from an order of the county court correcting an order admitting a will to probate, and the district court in disposing of said proceedings considers evidence and passes upon an issue of fact, its order and judgment concerning said issue will not be reviewed in this court, in the absence of a motion for a new trial in the district court.</p>

Cited by 3 later decisions — most recently October 1939

3 state decisions

Relies on Carmack v. Erdenberger · Whalen v. Kitchen · Wollam v. Brandt

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1908-11-19

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Root, C.

¶1Appeal from a judgment of the district court for Fillmore county confirming an order of the county court correcting the record of the probate of the last will and testament of Charles A. Swan, deceased. Charlotte Bemen*743derfer, an heir of the deceased and a legatee under his will, appeals.

¶2The only question presented in the brief of counsel for the appellant is that the. evidence is not sufficient to sustain the findings and order of the district or the county court. A motion for a new trial was not filed in the district court, and therefore the sufficiency of the evidence is not before us for review. Wollam v. Brandt & Shipman, 56 Neb. 527; Whalen v. Kitchen, 61 Neb. 329; Carmack v. Erdenberger, 77 Neb. 592.

¶3It follows necessarily that the judgment of the district court should be affirmed, and we so recommend.

Fawcett and Calkins, CC., concur.

¶4By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

¶5Affirmed.