a sufficient supersedeas bond as required by law to stay proceedings pending a review of the judgment in the appellate court, upon the plaintiff executing, with at least two sufficient sureties, the undertaking prescribed by section 591 of the code of civil procedure and obtaining leave from the court below, or a judge thereof in vacation, to enforce the collection of the judgment. Bodewig v. Standard Cattle Co., 56 Neb. 217 (76 N. W. 580).

735. (1898.) Where plaintiff has complied with the provisions of section 591 of said code, the defendant is not entitled to an order restraining the enforcement of the judgment during the pendency of error proceedings to review such judgment. Bodewig v. Standard Cattle Co. 56 Neb. 217 (76 N. W. 580).

IX. RECORD AND PROCEEDINGS NOT IN RECORD.

Burden of showing error in the record, see post, §§ 1568-1578.

Dismissal for defects relating to record, see post, §§ 1436-1444.

Effect of filing, as election to proceed by error instead of appeal, see ante, §§ 48-49. Presumption where record fails to show error, see post, §§ 1560-1659.

A. Matters Which Should Be Contained in Record.

Necessity of bill of exceptions to bring matters into record, see post, §§ 893-951. Tribunal where proceedings were had.

736. (1871.) Transcripts of records of proceedings had in the district court, when filed in the supreme court for the purpose of reviewing the action appearing thereby, must show when and where the court was held, its term, and the names of the judges and other officers present, and be duly authenticated by its clerk. McDonald v. Penniston,

1 Neb. 324. 737.

(1872.) A transcript of the record of the proceedings of the district court filed in the supreme court must show upon its face when, where, and before what court proceedings were had, so as to make it appear that they were before a court known to the law, held at a time and place authorized by law, and were coram judice. Orr v. Orr, 2 Neb. 170; (1877) Clark v. Wright, 6 Neb. 413.

Jurisdiction of lower court.

738. (1901.) The records of inferior courts must affirmatively show that such

courts have acted within the scope of their authority. Kuker v. Beindorff, 63 Neb. 91 (88 N. W. 190).

739. (1902.) Ordinarily, when a judg ment or order of an inferior court is assailed on the ground of a want of jurisdiction, every fact essential to jurisdiction must affirmatively appear; but such rule has no application, when the transcript before the reviewing court shows on its face that the jurisdictional steps, actually taken, are omitted therefrom. Biart v. Myers, 3 Unof. 196 (91 N. W. 573).

Rules of lower court.

740. (1899.) The supreme court will not take judicial notice of the rules of practice of the district court. To be considered, such rules must be made a part of the record. Dunn v. Bozarth, 59 Neb. 244 (80 N. W. 811).

Docket of lower court.

741. (1898.) Entries made upon the trial docket of the district court cannot be. considered on review for the purpose of ascestaining what were the proceedings in that court. Barker v. State, 54 Neb. 53 (74 N. W. 427).

Contents of record on former appeal or in another case.

742. (1894.) A bill of exceptions must contain all the evidence upon which questions of fact are to be determined, a reference in such bill to evidence to be found by reference to another bill filed in an independent case not being sufficient. Lowe t. Riley, 41 Neb. 812 (60 N. W. 96); (1887) Tecumseh Nat. Bank v. Best, 50 Neb. 518 (70 N. W. 41).

743. (1896.) The parties cannot by stipulation make the bill of exceptions settled and allowed in another case the record. State Ins. Co. v. Buckstaff Bros. Mfg. Co. 47 Neb. 1 (66 N. W. 27).

744. (1898.) A second appeal to the supreme court is so far independent of a former appeal that pleadings filed in the original appeal cannot be referred to in that subsequently taken, for the purpose of ascer taining what issues had been originally joined and presumably were tried, when there was entered the decree sought to be reversed. Calmelet v. Sichl, 54 Neb. 97 (74 N. W. 407).

745. (1898.) Solely by stipulation, a bill of exceptions in one case cannot be made a part of the record of another case, even

though the two cases be between the same parties. Murphy v. Warren & Co., 55 Neb. 220 (75 N. W. 575).

Examination of juror.

746. (1888.) Examination of juror on his voir dire must be preserved in the record, so that it may appear he was examined on the question of whether he has expressed an opinion or not. Everton v. Esgate, 24 Neb. 235 (38 N. W. 794).

Process.

747. (1902.) The supreme court cannot decide whether the district court erred in permitting an amendment to the return of a process, unless the process and the original return thereto, or authenticated copies of them, are preserved in the record or bill of exceptions. Saussay v. Lemp Brewing Co., 64 Neb. 429 (89 N. W. 1048). Pleadings.

748. (1880.) The omission to give a copy of the petition on which the judgment claimed to be erroneous was rendered, makes it impossible for the reviewing court to say whether it contained facts sufficient to warrant it or not, but the presumption will be that it did, unless the subject of the suit be one on which no cause of action could possibly be shown to exist. Reynolds v. Reynolds, 10 Neb. 574 (7 N. W. 322).

749. (1883.) Every case submitted to the supreme court for review should contain a transcript of the pleadings constituting the issue tried in the district court, otherwise the judgment of the court below will be affirmed. Galley v. Knapp, 14 Neb. 262 (15 N. W. 329).

750. (1887.) It is an inflexible rule of practice, that in order to predicate error upon the refusal of a trial court to permit a supplemental pleading to be filed, the paper proposed, or at least the substance of it, must be made a part of the record. Killinger v. Hartman, 21 Neb. 297 (31 N. W. 918). 751. (1895.) Assignments of error based on an order sustaining a demurrer will not be considered where the demurrer has been omitted from the transcript. Ball v. Nelson, 45 Neb. 205 (63 N. W. 361).

752. (1896.) Should a party desire to urge in the supreme court that he was entitled to a judgment in his favor upon the pleadings, they must be copied into the transcript. Lewis Investment Co. v. Boyd, 48 Neb. 604 (67 N. W. 456).

753. (1896.) Where the record shows

that a reply was filed, defendant will not be heard to insist that his answer should be taken as true because of his failure to have the reply copied into the transcript. Lewis Investment Co. v. Boyd, 48 Neb. 604 (67 N. W. 456).

754. (1898.) When there is filed in the supreme court on appeal no pleading but a supplemental petition, and the decree discloses that it was rendered upon consideration of a petition and supplemental petition, the decree may be affirmed. Calmelet v. Sichl, 54 Neb. 97 (74 N. W. 407).

755. (1899.) Alleged error in striking out portions of a pleading omitted from the transcript for review will be disregarded. Doolittle v. American Nat. Bank, 58 Neb. 454 (78 N. W. 926).

756. (1900.) An assignment of error predicated upon the insufficiency of a petition will not be considered upon review, unless a copy of the proceeding is included in the transcript. Western Seed & Irrigation Co. v. Morton, 59 Neb. 579 (81 N. W. 616).

757. (1902.) Where the ground of complaint is that the findings of themselves would entitle the plaintiff in error to more relief than was granted, a record containing the findings and judgment only is insufficient to procure modification or reversal, since the prayer of the petition may have been more limited than the relief warranted by the facts alleged and found. Shelby v. Creighton, 2 Unof. 264 (96 N. W. 382).

758. (1902.) Where the findings show a narrower liability than that enforced by the judgment of the court, or show no liability and the judgment enforces one, or in any other way a discrepancy between findings and judgment is presented which no possible state of the pleadings could justify, modification or reversal may be had upon a record showing such findings and judgment only. Shelby v. Creighton, 2 Unof. 264 (96 N. W. 382).

Amendment of pleadings.

759. (1895.) A ruling amending a pleading below cannot be reviewed on error unless it affirmatively appears what particular amendment was allowed. German-American Ins. Co. v. Hart, 43 Neb. 441 (61 N. W. 582).

760. (1896.) A record containing a journal entry "Now on this day came the parties hereto with their attorneys and leave is hereby granted the plaintiff to amend the petition herein by interlineation, to which the defendant duly excepts," held,

too indefinite to present for review the question of the propriety of the action of the trial court, there being no statement of what was embodied in the amendment; anu furthermore, in order to make any error in such order available for review a statement of what was allowed to be done and the matter of the amendment should have been made a part of and preserved by the bill of exceptions. Imhoff v. Richards, 48 Neb. 590 (67 N. W. 483).

761. (1902.) The supreme court cannot take judicial notice of the records of the district court, and when the record in this court shows that an amended petition was filed in the district court, but does not show that a new cause of action was set up in the amended petition, the statute of limitations will cease to run from the commencement of the action. Bush v. Tecumseh Nat. Bank, 64 Neb. 451 (90 N. W. 236).

762. (1903.) Where it is claimed that the court erred in permitting a pleading to be amended during trial, the alleged fact must be shown by the record; its existence will not be presumed. Pratt v. Smith 68 Neb. 151 (94 N. W. 104.)

Motions.

763. (1891.) The supreme court will not review the action of the district court in overruling a motion for a change of venue, where the motion is not included in the records brought up. Van Etten v. Butt, 32 Neb. 285 (49 N. W. 365).

764. (1896.) The supreme court cannot determine that the ruling of the district court upon a motion was without justification, when there is presented for review neither the motion nor the proofs submitted in support of it. Hudson v. Pennock, 48 Neb. 359 (67 N. W. 188).

765. (1899.) A ruling on a motion not included in the transcript will not be considered. Brown v. Johnson, 58 Neb. 222 (78 N. W. 515).

766. (1900.) A motion to set aside a sale cannot be considered, unless certified in the transcript by the clerk of the district court. Mandell v. Weldin, 59 Neb. 699 (82 N. W. 6).

Proceedings for removal of cause.

767. (1876.) Upon suggestion of diminution of record, certificates of the clerk of the United States circuit court were produced to show that before judgment was rendered, the case had been removed to that

court. Held, That the question of removal could only be reviewed upon a bill of exceptions showing the course taken to obtain it, and the action of the district court thereon. Singleton v. Boyle, 4 Neb. 414. Evidence.

Necessity for bill of exceptions to bring evidence into record, see post, §§ 902-917.

768. (1875.) Where the finding of the court below upon the facts is not disputed, and the only error complained of is one of law, the testimony taken need not be em bodied in the record brought to the su preme court. Rogers v. Omaha Hotel Co., 4 Neb. 54. 769. (1883.) Where, in the assessment of damages for right of way for a railroad by a jury, a plat of the land, showing the location of the road, etc., is used, a record of the evidence is not complete without it. Missouri P. R. Co. v. Hays, 15 Neb. 224 (18 N. W. 51).

770. (1884.) The decision of an inferior court in admitting evidence on the trial of a cause will not be reversed unless the evidence is before the supreme court, and prejudicial error is shown. Wilson v. Young, 15 Neb. 627 (19 N. W. 487).

771. (1889.) Plats introduced in evidence should be attached to the bill of exceptions. Fink v. Republican V. R. Co., 27 Neb. 660 (43 N. W. 418).

772. (1891.) Errors of trial court in overruling motions to exclude evidence will not be considered unless the motion, the ruling, and the evidence are presented in Zimmer. the record by bill of exceptions. man v. Klingeman, 31 Neb. 495 (48 N. W. 268).

773. (1892.) Proceedings in district court, to contest an election to locate county seat, will not be reviewed by the supreme court in the absence of bill of exceptions. Peters v. Morey, 34 Neb. 82 (51 N. W. 312).

774. (1892.) A party is not entitled to review, on error or appeal, the decision of a trial court in denying a new trial upon the ground of newly discovered evidence, unless all the testimony given on the hearing of the motion is set out in a bill of exceptions. Wohlenberg v. Melchert, 35 Neb. 803 (53 N. W. 982); (1894) National Lumber Co. v. Ashby, 41 Neb. 292 (59 N. W. 913).

775. (1894.) Allegations of error in admitting and refusing evidence will not be considered in absence of a bill of exceptions.

Haskell v. Valley County, 41 Neb. 234 (59 N. W. 680).

776. (1896.) The supreme court will take judicial notice of the boundaries of a judicial district and of the counties therein. Chicago, B. & Q. R. Co. v. Hyatt, 48 Neb. 161 (67 N. W. 8).

777. (1896.) In order to entitle the unsuccessful party to a petition for a new trial under section 318 of the code to a review in the supreme court, the evidence on the former trial must, when material, he preserved in the bill of exceptions. Western Gravel Co. v. Gauer, 48 Neb. 246 (67 N. W. 150).

778. (1897.) Alleged error in admitting an account-book in evidence was disregarded upon review, where the party complaining failed to make the book or its contents a part of the bill of exceptions. Anderson v. Beeman, 52 Neb. 387 (72 N. W. 361).

779. (1900.) The supreme court does not take judicial cognizance of the net earnings of railroad companies, and can not assume, without proof, that the "Maximum Rate Law" (Session Laws, 1893, ch. 24) is not, or was at the time of its enactment, confiscatory legislation. Nebraska Telephone Co. v. Cornell, 59 Neb. 737 (82 N. W. 1).

780. (1903.) The ruling of the district court on a motion for a judgment on the pleadings, can not be reviewed on appeal if it appears that the judgment is sustained by and conforms to the pleadings and there is no bill of exceptions. Danforth v. Fowler, 68 Neb. 452 (94 N. W. 637).

781. (1906.) Evidence not having been preserved in the manner provided by law in the bill of exceptions cannot be considered on appeal. Parker v. State, 76 Neb. 765 (108 N. W. 121).

782. (1906.) Under the practice of the supreme court, where the record contains no bill of exceptions and the pleadings are sufficient to support the judgment of the trial court, it will be affirmed. McIntyre v. Mote, 77 Neb. 418 (109 N. W. 763).

All of the evidence.

783. (1871.) All the evidence adduced on the trial should be preserved in the bill of exceptions, and the fact be accordingly stated, in order to justify a claim that the court below erred in refusing a new trial, asked for on the ground that the verdict was not sustained by sufficient evidence. Midland P. R. Co. v. McCartney, 1 Neb. 398. 784. (1875.) Bills of exceptions should

state affirmatively that they contain "all the evidence." To state that they contain "the substance of the evidence introduced bearing upon the issues," is not sufficient. Omaha & Northwestern R. Co. v. Menk, 4 Neb. 21; (1877) Faulkner v. Meyers, 6 Neb. 414.

785. (1876.) If the bill of exceptions does not affirmatively show that it contains all the evidence, the supreme court will not examine the question whether the verdict is against evidence. Wilcox v. Saunders, 4 Neb. 569; (1877) Faulkner v. Meyers, 6 Neb. 414.

786. (1887.) Bills of exceptions should contain all the evidence considered by a court in the trial of a cause. If not, it must

be presumed that the findings of the trial Ascourt on questions of fact are correct. pinwall v. Sabin, 22 Neb. 73 (34 N. W. 72; 3 Am. St. Rep. 258); (1889) Chamberlain v. Brown, 25 Neb. 434 (41 N. W. 284); (1892) Becker v. Simonds, 33 Neb. 680 (50 N. W. 1129); (1896) Greene v. Greene, 49 Neb. 546 (68 N. W. 947; 59 Am. St. Rep. 560; 34 L. R. A. 110); (1899) Barr v. Post, 59 Neb. 361 (80 N. W. 1041; 80 Am. St. Rep. 680).

787. (1889.) A verdict of a jury and judgment thereon will not be set aside as being unsupported by the evidence when the bill of exceptions shows upon its face that all the evidence submitted to the trial jury is not before the supreme court; all presumptions being in favor of the regularity of the proceedings of the district court. Garneau Cracker Co. v. Palmer, 28 Neb. 307 (44 N. W. 463); (1895) Omaha Fire Ins. Co. v. Berg, 44 Neb. 522 (62 N. W. 862); (1896) Warner v. Hutchins, 48 Neb. 672 (67 N. W. 745); 1901) Chicago, B. & Q. R. Co. v. Bigley, 1 Unof. 225 (95 N. W. 344)

788. (1892.) Where it appears from an inspection of a bill of exceptions that important and material evidence introduced on the trial of the cause has been omitted therefrom, the bill of exceptions will not be considered by this court for the purpose of determining whether the verdict is supported by the evidence. Schneider v. Tombling, 34 Neb. 661 (52 N. W. 283).

789. (1894.) Findings if a referee will not be reviewed where his certificate to the bill of exceptions fails to show that the bill contains all evidence adduced. McClain v. Morse, 42 Neb. 52 (60 N. W. 334).

turbed as being contrary to the evidence where important testimony has been omitted from the bill of exceptions. Conger v. Dodd, 45 Neb. 36 (63 N. W. 125); (1897) Anderson v. Beeman, 52 Neb. 387 (72 N. W. 361); (1897) Dunn v. Eberly, 52 Neb. 468 (72 N. W. 485).

791. (1899.) Where, upon an inspection of a bill of exceptions, palpable omissions appear, the reviewing court will not pass upon the sufficiency of the evidence. Davidson v. Gretna State Bank, 59 Neb. 63 (80 N. W. 256); (1900) Scott v. Society of Russian Israelites, 59 Neb. 571 (81 N. W. 624).

792. (1902.) Evidence will not be reviewed, where it is not disclosed that all of it is in the bill of exceptions. Dederick v. Gillespie, 63 Neb. 422 (88 N. W. 659).

Excluded evidence.

793. (1876.) To obtain a review of the action of the court in excluding evidence from the jury, the testimony offered, and the ground of its exclusion, should be preserved by bill of exceptions. Commissioners of Kearney County v. Kent, 5 Neb. 227. 794. (1884.) Where documentary evidence is excluded by the trial court, if such exclusion is sought to be assigned in the supreme court as error, the excluded evidence must be preserved by the bill of exceptions. Error cannot be presumed. O'Dea v. State, 16 Neb. 241 (20 N. W. 299); (1892) Schneider v. Tombling, 34 Neb. 661 (52 N. W. 283; (1892) Conner v. Draper, 34 Neb. 870 (52 N. W. 720); (1896) Graham Frazier, 49 Neb. 90 (68 N. W. 367); (1897) Brinckle v. Stitts, 53 Neb. 10 (73 N. W. 223). 795. (1889.) In the absence of a copy of the will in the bill of exceptions, the supreme court cannot say whether the property was improvidently distributed, and owing to such absence it cannot be presumed that the district court erred in excluding the evidence as to the financial condition of some who would naturally be the recipients of the bounty of the testator. Latham v. Schaal, 25 Neb. 535 (41 N. W. 354).

Depositions.

v.

796. (1881.) When error is assigned upon the refusal of the court to suppress and exclude depositions as evidence, to have a review of the ruling, it is necessary that such depositions be included in the record. Stevenson v. Anderson, 12 Neb. 83 (10 N. W. 552).

797. (1896.) Error in reading a deposi tion to the jury will not be held prejudicial where it was not preserved by a bill of exceptions. Keens v. Robertson, 46 Neb. 837 (65 N. W. 897).

For review of questions of fact. 798. (1888.) Where none of the evidence produced on the trial is preserved in the record, it is impossible to review the facts. Welborn v. Eskey, 25 Neb. 193 (40 N. W. 959); (1896) White v. Smith, 47 Neb. 625 (66 N. W. 638); (1897) Iowa Loan & Trust Co. v. Walker, 56 Neb. 667 (70 N. W 243); (1897) Everingham v. Harris, 51 Neb. 627 (71 N. W. 300); (1897) Alexander v. Overton, 52 Neb. 283 (72 N. W. 212); (1898) Mills v. Hamer, 55 Neb. 445 (75 N. W. 1105); (1901) Hammer v. Coglizer, 1 Unof. 633 (95 N. W. 681); (1903) Emery v. Hanna, 4 Unof. 491 (94 N. W. 973).

799. (1888.) In an appeal from the judgment setting aside a finding by a referee the bill of exceptions should contain all of the record as contained in the district court, and a motion to strike out certain matter of evidence, on the ground that the same was not before the referee, was properly overruled. Gibson v. Gibson, 24 Neb. 394 (59 N. W. 450).

800. (1888.) The assignment in a motion for a new trial, that the verdict of the jury was not sustained by sufficient evidence, cannot be considered by the supreme court in proceedings in error, unless the evidence submitted to the jury is before the court by a bill proper of exceptions. Schroeder v. Rinehard, 25 Neb. 75 (40 N, W. 593).

801. (1889.) The verdict of a jury was set aside and a new trial granted upon the motion of the losing party, based upon a number of assignments, among which were, misconduct of the jurors, and that the ver dict was not sustained by sufficient evidence. In the absence of a bill of exceptions showing what the evidence was, it is presumed that the decision of the court in granting the new trial was correct, the journal entry not showing the reasons for which the verdict was set aside. Latham v. Schaal, 25 Neb. 535 (41 N. W. 354).

802. (1890.) In a record without pleadings in which it appeared from a journal entry of the judgment that the plaintiff's cause of action arose from defendant's live stock trespassing upon cultivated ground and the defendant's answer an award of ar