#### E. H. Andrews et al. v. William Kerr.

Filed April 21, 1898.

No. 8021.

1. Review Without Bill of Exceptions. If there is -no proper hill of exceptions in the record, no question can be determined which for its consideration necessitates a reference to matters which must be made of the record by or through such a document.

2. Review: Reversal. .To warrant a reversal, that errors have been committed and the rights of the complaining party were prejudicially affected thereby must affirmatively appear of the record.

Error from the district court of Adams county. Tried below before Beall, J.

*Affirmed.*

*Greene & Hostetler,*for plaintiffs in error.

*Capps & Stevens, contra.*

Harrison, C. J.

Action on a promissory note, in which, by answer filed, the defendant admitted the due execution and delivery-of the instrument in suit, but alleged that it was given to evidence in part an indebtedness arising in a contract of sale of a horse, of the terms of which there was a warranty that the animal was “sound and all right,” relied on by defendant, but which was untrue, in that the horse *619was a “cribber” or “crib-biter;” that by the breach of the warranty the defendant had been damaged in a stated snm. As the result of a trial of the issues joined the plaintiff was accorded a recovery of the full amount of his claim as asserted. Defendant seeks a review in this court. The bill of exceptions, on the hearing of a motion having such purpose, was quashed, and cannot be considered.

One of the assignments of error relative to the instructions given is that the court informed the jury “that the defendant had admitted the plaintiff’s cause of action, and the allegations of the petition were to be considered as true.” The complaint here is that by the petition it was asserted that the defendant was indebted to the plaintiff in the sum stated in the note in Suit, and interest thereon, and that this was true was not admitted. In this there was no error. The defendant did admit that he had become indebted to the plaintiff in the amount of the note and interest, but pleaded that by reason of the breach of the warranty of the horse, of the consideration for the sale of which, to the defendant, the note in suit evidenced a part, the defendant had been damaged, and for such damages asked an allowance.

There are other assignments in relation to the instructions, which are urged in argument in the brief, but to determine whether the errors, if any were committed, were prejudicial to the rights of the complainant would necessitate a reference to, and consideration in this connection of, the evidential matters in the bill of exceptions, and these are not before us. There may have existed conditions of the evidence with which any of this branch of the errors assigned could not have been prejudicially erroneous, and to establish that errors may have been or were committed is not sufficient to secure a reversal of a judgment in an action. It must further affirmatively appear from the record that the errors were prejudicial to the rights of the complaining party. *(Tracey v. State,*46 Neb. 361.)

*620There being no bill of exceptions, we cannot consider the assignment that the verdict lacked evidence to sustain it. *(Appelget v. McWhinney,*41 Neb. 253; *Becker v. Simonds,*33 Neb. 680.)

The petition contained statements sufficient to constitute a cause of action, and a proper prayer for relief. The material allegations Avere admitted, and no prejudicial errors appear of record; hence the judgment must be

Affirmed.