#### State of Nebraska, ex rel. Grant S. Cobb, v. Jacob Fawcett, Judge.

Filed April 17, 1902.

No. 12,467.

Commissioner’s opinion, Department No. 2.

1. Bill of Exceptions: Judicial Notice. A bill of exceptions may properly include a record of events which took place in the presence of or under the direction of the court and matters of which the court took judicial notice, if in fact considered by the court in arriving at a decision, although not formally introduced in evidence.

*4972. -—: -—. Review: Appeal: Rejection of Improper Evidence. If any matter of which a trial court takes judicial notice in coming- to a decision is incompetent, irrelevant or otherwise improper to be considered, this court, in hearing- the cause on appeal, will reject it and put it out of the way in considering whether the order complained ,of is sustained by sufficient evidence.

3. -: Mandamus: Plain and Adequate Remedy in the Ordinary Course of Law. A party who complains that a trial judge has incorporated incompetent, irrelevant or imxmoper matter in a bill of exceptions by way of amendment on the ground that he took judicial notice thereof at the hearing, has a “plain and adequate remedy in the ordinary course of the law,” within the purview of section 046, Code of Civil Procedure, by obtaining-a review of the action of the judge in considering the matter complained of.

Original application for a writ of mandamus to compel the settling of a bill of exceptions. Rehearing of case reported in 63 Nebr., 523.

*Former judgment vacated. Writ denied.*

*Frome & Burnett, Virgil O. Striclder*and *J. II. McIntosh,*for relator.

*Ralph W. Breckenridge, contra.*

Pound, C.

The facts are stated in the former opinion. *State v. Fawcett,*63 Nebr., 523. It is said in that opinion that “the office of a bill of exceptions is to exhibit to the appellate court those portions of the public proceedings at the trial which the complaining party deems material for the appellate court’s consideration, and which would otherwise not go into the record.” Such was the office of the bill of exceptions at common law, where either party might have any number of separate bills of exceptions relating to particular rulings as a trial progressed. But under our practice the scope of a bill of exceptions has been enlarged materially. This is necessary in actions at law by reason of the power of this court to pass on assignments of error that verdicts and judgments are contrary to or not sup*498ported by the evidence. It is even more necessary under our equity practice, wherein all the evidence considered by the trial court is brought to this court on appeal by bill of exceptions, instead of being transcribed and transmitted directly. Code of Civil Procedure, sec. 676. In suits in equity the bill of exceptions provided for by the Code is intended to bring before the appellate court everything which was before the trial court and was considered by that court in making its findings and rendering its order or decree. Hence it would seem clear that a bill of exceptions may properly include a record of events which took place in the presence of or under the direction of the court and matters of which the court took judicial notice, if in fact considered by the court in arriving at a decision, although not formally introduced in *evidence. State v. Scott,*59 Nebr., 499. In my opinion, the relator has an adequate remedy for every tiring of which he complains, in due course of law, rjdthin the purview of section 646, Code of Civil Procedure. That section provides expressly that the writ of mandamus “may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law,”*’ and in so doing merely declares a wholesome and well-settled rule of the common law. If the matters to which relator objects, or any of- them, are incompetent, irrelevant, or improper .to be considered, this court, on hearing the cause on its merits, will reject them and put them out of the way in considering whether the order complained of is sustained by sufficient evidence. Some of them appear proper to be considered, and have a place in a bill of exceptions. Others at first sight appear very doubtful. But this is not the time nor the occasion to consider the propriety of the court’s action in taking-such matters into consideration. Whthe we will not review rulings on evidence as such on appeal, the competency or admissibility of the evidence received may be passed upon in reviewing the order appealed from on its merits. *McConnell v. First Nat. Bank,*38 Nebr., 252, 262, and cases cited. Then is the time to review what the district *499judge did. Now we can only require Mm to make what lie did a part of the record. It is for Mm to say what evidence he received and what matters he took notice of judicially in reaching his conclusion. We ought not to require him to certify to a hill as containing all the evidence considered by him when he considered other matters not set forth therein as well. If he erred in considering them, there is ample opportunity for correcting his error in due course of law.

*Note.—Judicial*Notice.—We are bound to take judicial notice of historical facts, matters .of public notoriety occurring in our midst. 70 Me., 609.—Reporter.

It is recommended that the former judgment be vacated, and that the writ be denied.

Barnes and Oldham, CC., concur in the recommendation.

By the Court: For the reasons stated in the foregoing opinion, the former judgment is vacated and the writ is denied.

Writ denied.