NE Code § 25-1925 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-1925 - Appeal; suits in equity; trial de novo.

25-1925.  Appeal; suits in equity; trial de novo.In all appeals from the district court in suits in equity in which review of some or all of the findings of fact of the district court is asked by the appellant, it shall be the duty of the Court of Appeals or the Supreme Court to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions and, upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.Source   Laws 1903, c. 125, § 1, p. 631;   R.S.1913, § 8198;   C.S.1922, § 9150;   C.S.1929, § 20-1925;   R.S.1943, § 25-1925;   Laws 1991, LB 732, § 61. Annotations  1. Scope 2. Findings of trial court 3. Miscellaneous 1. Scope In an appeal of an action in equity, this court tries the factual issues raised by the appellant's assignments of error de novo on the record and reaches its conclusions independent of the findings of the trial court. Romshek v. Osantowski, 237 Neb. 426, 466 N.W.2d 482 (1991). An action to rescind a written instrument is an equity action. In an appeal of an equity action, the Supreme Court tries factual questions de novo on the record. Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990). In an appeal in a dissolution of marriage action, the Supreme Court's review of the trial court's action is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. Brandt v. Brandt, 227 Neb. 325, 417 N.W.2d 339 (1988). In an equitable action, the Supreme Court reviews the facts de novo without reference to the findings of fact made by the trial court, and reaches an independent conclusion. Lanphier v. OPPD, 227 Neb. 241, 417 N.W.2d 17 (1987); Dupuy v. Western State Bank, 221 Neb. 230, 375 N.W.2d 909 (1985); Haller v. Chiles, Heider & Co., Inc., 195 Neb. 65, 236 N.W.2d 822 (1975); Hansen v. Commonwealth Co., 174 Neb. 70, 115 N.W.2d 895 (1962); Nitzel & Co. v. Nelson, 144 Neb. 662, 14 N.W.2d 197 (1944); Sherwood v. Salisbury, 139 Neb. 838, 299 N.W. 185 (1941); Thurston v. Travelers Ins. Co., 128 Neb. 141, 258 N.W. 66 (1934); Kline v. Department of Public Works, 126 Neb. 587, 253 N.W. 861 (1934); Chizek v. City of Omaha, 126 Neb. 333, 253 N.W. 441 (1934). In an appeal of a declaratory judgment action concerning an equity case, the Supreme Court reviews the trial court's findings of fact de novo on the record. Millard Rur. Fire Prot. Dist. No. 1 v. City of Omaha, 226 Neb. 50, 409 N.W.2d 574 (1987). The record of an equity action is reviewed de novo on appeal. Lincoln East Bancshares v. Rierden, 225 Neb. 440, 406 N.W.2d 337 (1987). Action in equity for restitution of value of improvements to leasehold is reviewed by Nebraska Supreme Court by trial de novo. Schmeckpeper v. Koertje, 222 Neb. 800, 388 N.W.2d 51 (1986). Findings of fact in declaratory judgment decrees are reviewed de novo on the record by the Supreme Court. OB-GYN v. Blue Cross, 219 Neb. 199, 361 N.W.2d 550 (1985). The district court may simply affirm a decision of the county court after giving that decision a de novo review. The Supreme Court will review probate matters de novo. In re Testamentary Trust of Criss, 213 Neb. 379, 329 N.W.2d 842 (1983). An action for specific performance is an equity action and will be tried de novo on the record in the Supreme Court. Rybin Investment Co., Inc. v. Wade, 210 Neb. 707, 316 N.W.2d 744 (1982); Dowd Grain Co., Inc. v. Pflug, 193 Neb. 483, 227 N.W.2d 610 (1975); Friehe Farms, Inc. v. Haberman, 191 Neb. 292, 214 N.W.2d 916 (1974); Smith v. Hornkohl, 166 Neb. 702, 90 N.W.2d 347 (1958); Mainelli v. Neuhaus, 157 Neb. 392, 59 N.W.2d 607 (1953). Acquisition of a prescriptive easement is an equitable action and, as such, it is the duty of the Supreme Court to try the issues de novo on the record and reach independent conclusions without being influenced by the findings of the trial court, except, where the credible evidence is in conflict, to give weight to the fact that the trial court observed the witnesses and their demeanor. Sturm v. Mau, 209 Neb. 865, 312 N.W.2d 272 (1981). A lien foreclosure is an action in equity, and it is therefor the duty of the Supreme Court to retry the issues of fact upon the evidence in the record and reach an independent conclusion. O'Neill Production Credit Assoc. v. Mitchell, 209 Neb. 206, 307 N.W.2d 115 (1981). A real estate foreclosure action is an action in equity, and upon appeal to the Supreme Court is tried de novo in conformity with this section, subject however to the condition that when the evidence on material questions of fact is in irreconcilable conflict, the court will, in determining the weight of the evidence, consider the fact the trial court observed the witnesses and their manner of testifying and has accepted one version of the testimony rather than the opposite. Tilden v. Beckmann, 203 Neb. 293, 278 N.W.2d 581 (1979). An action based on the claim of adverse possession is an action in equity and the Supreme Court will try the issue de novo on the record without reference to findings of the trial court; such independent conclusions of fact will be determined in accordance with ordinary rules governing burden of proof and competency and materiality of the evidence. Rentscheler v. Walnofer, 203 Neb. 84, 277 N.W.2d 548 (1979). Equity appeals in Supreme Court are retried de novo on the record to reach an independent conclusion. Schupack v. McDonald's System, Inc., 200 Neb. 485, 264 N.W.2d 827 (1978); Rogers v. Petsch, 174 Neb. 313, 117 N.W.2d 771 (1962). Appeal from district court finding involving dependent children, voluntarily relinquished, is heard de novo on the record. State v. Worrell, 198 Neb. 507, 253 N.W.2d 843 (1977). Appeals in proceedings to transfer land from one school district to another are governed by this section. Klecan v. Schmal, 196 Neb. 100, 241 N.W.2d 529 (1976). An action to quiet title is an action in equity and is considered de novo on appeal. Bartlett v. Kloepping, 195 Neb. 755, 240 N.W.2d 592 (1976); Neylon v. Parker, 177 Neb. 187, 128 N.W.2d 690 (1964); Fitch v. Slama, 177 Neb. 96, 128 N.W.2d 377 (1964); Walker v. Bell, 154 Neb. 221, 47 N.W.2d 504 (1951); Eirich v. Ostwald, 154 Neb. 8, 46 N.W.2d 686 (1951); Duke v. Durfee, 308 F.2d 209 (8th Cir. 1962). In appeals in equity, Supreme Court must try issues of fact de novo in accordance with rules governing burden of proof and competency and materiality of the evidence and reach independent conclusion. Campbell v. Buckler, 192 Neb. 336, 220 N.W.2d 248 (1974). Issues of alimony and attorney's fees made de novo by Supreme Court on appeal. Barnes v. Barnes, 192 Neb. 295, 220 N.W.2d 22 (1974). Trial de novo on appeal in Supreme Court not required by this section in proceeding under Political Subdivision Tort Claims Act. Craig v. Gage County, 190 Neb. 320, 208 N.W.2d 82 (1973). Where appeal was pending in divorce case when the no fault divorce law became effective, the cause was triable de novo by the Supreme Court on the record in compliance with the provisions of that act. Lienemann v. Lienemann, 189 Neb. 626, 204 N.W.2d 170 (1973). Issue of whether, under terms of the joint venture involved herein, one of its members had duty to account to joint venture was triable de novo in the Supreme Court. Cedars Corp. v. H. Krasne & Son, Inc., 189 Neb. 220, 202 N.W.2d 205 (1972). Final order of separate juvenile court is triable de novo on the record in the Supreme Court. Grant v. Doeschot, 189 Neb. 121, 200 N.W.2d 252 (1972). Review in the Supreme Court of proceedings in Court of Industrial Relations is in the manner provided by law for disposition of equity cases including an independent conclusion as to disputed issues of fact. City of Grand Island v. American Federation of S. C. & M. Employees, 186 Neb. 711, 185 N.W.2d 860 (1971). Action in equity to establish a highway by prescription was required to be tried de novo upon appeal. Satterfield v. Dunne, 180 Neb. 274, 142 N.W.2d 345 (1966). Proceeding for disconnection of land from a village is triable de novo in Supreme Court. Shelton Grain & Supply Co. v. Village of Shelton, 178 Neb. 695, 134 N.W.2d 815 (1965). On review in Supreme Court, examination of the conclusion of the district court is not prohibited. Weise v. Klassen, 177 Neb. 496, 129 N.W.2d 527 (1964). Proceeding to determine statutory allowances in estate proceeding was triable de novo in Supreme Court. Parker v. Comstock, 177 Neb. 197, 128 N.W.2d 696 (1964). Proceeding for formation of sanitary and improvement district was triable de novo in Supreme Court. Zwink v. Ahlman, 177 Neb. 15, 128 N.W.2d 121 (1964). On appeal in divorce case, Supreme Court is required to try case de novo on the record. Upah v. Upah, 175 Neb. 606, 122 N.W.2d 507 (1963); Jones v. Jones, 173 Neb. 880, 115 N.W.2d 462 (1962); Jablonski v. Jablonski, 173 Neb. 544, 114 N.W.2d 1 (1962); Scholz v. Scholz, 172 Neb. 184, 109 N.W.2d 156 (1961); Spencer v. Spencer, 158 Neb. 629, 64 N.W.2d 348 (1954); Schwarting v. Schwarting, 158 Neb. 99, 62 N.W.2d 315 (1954); Hoffmeyer v. Hoffmeyer, 157 Neb. 842, 62 N.W.2d 138 (1954); Mason v. Mason, 157 Neb. 279, 59 N.W.2d 365 (1953); McNamee v. McNamee, 154 Neb. 212, 47 N.W.2d 383 (1951); Zoppelli v. Zoppelli, 153 Neb. 577, 45 N.W.2d 599 (1951); Nickerson v. Nickerson, 152 Neb. 799, 42 N.W.2d 861 (1950); Ristow v. Ristow, 152 Neb. 615, 41 N.W.2d 924 (1950); Peterson v. Peterson, 152 Neb. 571, 41 N.W.2d 847 (1950); Eicher v. Eicher, 148 Neb. 173, 26 N.W.2d 808 (1947). Action to declare zoning ordinance void was triable de novo in Supreme Court. Bucholz v. City of Omaha, 174 Neb. 862, 120 N.W.2d 270 (1963). Proceeding for remission of bail is equitable in nature. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960). Action to quiet title against tax deed alleged to be void was triable de novo in Supreme Court. Thomas v. Flynn, 169 Neb. 458, 100 N.W.2d 37 (1959). Action to enjoin liquor nuisance was triable de novo on appeal to Supreme Court. State ex rel. Fitzgerald v. Kubik, 167 Neb. 219, 92 N.W.2d 533 (1958). Claims for benefits under Employment Security Law are tried de novo in Supreme Court. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958). Where suit at inception was one in equity, review in Supreme Court was governed by this section. Dargue v. Chaput, 166 Neb. 69, 88 N.W.2d 148 (1958). Action for rescission of a contract is triable de novo. Caruso v. Moy, 164 Neb. 68, 81 N.W.2d 826 (1957). Action to detach lands from municipality is triable de novo in Supreme Court. Egan v. Village of Meadow Grove, 159 Neb. 207, 66 N.W.2d 425 (1954). Action to set aside deed was triable de novo in Supreme Court. Eggert v. Schroeder, 158 Neb. 65, 62 N.W.2d 266 (1954); Cain v. Killian, 156 Neb. 132, 54 N.W.2d 368 (1952); Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786 (1952). Action to enjoin violation of restrictive covenant was triable de novo on appeal. Gallagher v. Vogel, 157 Neb. 670, 61 N.W.2d 245 (1953). Action to enjoin construction of ditches to drain land was triable de novo. Bussell v. McClellan, 155 Neb. 875, 54 N.W.2d 81 (1952). Appeals in guardianship matters are heard de novo in Supreme Court. Cass v. Pense, 155 Neb. 792, 54 N.W.2d 68 (1952). Action to establish oral agreement of joint adventure was triable de novo. Rossbach v. Bilby, 155 Neb. 575, 52 N.W.2d 747 (1952). Action for accounting of partnership assets was triable de novo in Supreme Court. Byram v. Thompson, 154 Neb. 756, 49 N.W.2d 628 (1951). Contest over sufficiency of election by widow to take under statute was triable de novo in Supreme Court. In re Estate of Bergren, 154 Neb. 289, 47 N.W.2d 582 (1951). Equity case is tried de novo on appeal. Molczyk v. Molczyk, 154 Neb. 163, 47 N.W.2d 405 (1951); Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950); Pitman v. Henkens, 125 Neb. 621, 251 N.W. 282 (1933). Action of partition was triable de novo in Supreme Court. Frankenberger v. Holm, 154 Neb. 80, 46 N.W.2d 901 (1951). Action to establish plaintiff's right to a road was triable de novo. Magnuson v. Coburn, 154 Neb. 24, 46 N.W.2d 775 (1951). Action to have warranty deed declared void for lack of delivery was an equitable action reviewable de novo in Supreme Court. Cerveny v. Cerveny, 154 Neb. 1, 46 N.W.2d 632 (1951). Action in equity to recover proceeds of insurance policy was triable de novo on appeal. Hall v. Modern Woodmen of America, 153 Neb. 600, 45 N.W.2d 630 (1951). Actions in equity are triable de novo in Supreme Court, subject to observance of witnesses rule. Sopcich v. Tangeman, 153 Neb. 506, 45 N.W.2d 478 (1951). Action to reform contract for purchase of lands is equitable in nature, and is triable de novo on appeal by the Supreme Court. Kear v. Hausmann, 152 Neb. 512, 41 N.W.2d 850 (1950). Action for specific performance of a contract to convey real estate was triable de novo in the Supreme Court. Nelson v. Cross, 152 Neb. 197, 40 N.W.2d 663 (1950). Action to establish rights of partners to assets of partnership was equitable in nature and required trial de novo in Supreme Court. Baum v. McBride, 152 Neb. 152, 40 N.W.2d 649 (1950). In proceeding by State Fire Marshal to condemn building, review in Supreme Court is by trial de novo as in equity. In re Application of Iverson, 151 Neb. 802, 39 N.W.2d 797 (1949). Proceedings to detach agricultural lands from municipality are triable de novo in the Supreme Court. Kuebler v. City of Kearney, 151 Neb. 698, 39 N.W.2d 415 (1949). Actions in equity are tried de novo on appeal in Supreme Court subject to specified conditions. Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547 (1949). Appeal in equity case presents entire record in Supreme Court for trial de novo. Security Investment Co. v. Golz, 151 Neb. 172, 36 N.W.2d 862 (1949). It is duty of Supreme Court to retry issues in equity case without reference to the conclusion reached in the district court. Garner v. City of Aurora, 149 Neb. 295, 30 N.W.2d 917 (1948); Gable v. Carpenter, 136 Neb. 669, 287 N.W. 70 (1939). Where damages are sought in an action for mandatory injunction requiring defendant to increase the carrying capacity of a canal, the case is properly triable de novo in the Supreme Court. Faught v. Platte Valley P. P. & I. Dist., 147 Neb. 1032, 25 N.W.2d 889 (1947). An appeal from a judgment quieting title on cross-petition of a defendant in mortgage foreclosure suit is tried in Supreme Court de novo. Evers v. Evers, 146 Neb. 104, 18 N.W.2d 673 (1945). In an equity case the Supreme Court must try the case de novo and reach an independent conclusion as to the findings of fact and of the law. Robinson v. Dawson County Irr. Co., 145 Neb. 32, 15 N.W.2d 231 (1944). An appeal to the district court from a county board of equalization is heard as an equity matter, and on appeal to Supreme Court is for trial de novo. Weller v. County of Valley, 141 Neb. 69, 2 N.W.2d 606 (1942). In suit by heirs against administrator of estate seeking to hold him liable as trustee, appeal to Supreme Court is tried de novo. Meade v. Van de Voorde, 139 Neb. 827, 299 N.W. 175 (1941). Appeal in suit to enjoin defendant from engaging in business in violation of contract is tried de novo on appeal to Supreme Court. Conrad v. Kaup, 137 Neb. 900, 291 N.W. 687 (1940). Appeal is for trial de novo hereunder. Petersen Baking Co. v. Bryan, 124 Neb. 464, 247 N.W. 39 (1933). In mechanic's lien foreclosure, Supreme Court is required to try case de novo. York Brick & Tile Co. v. Ude Motor Co., 123 Neb. 154, 242 N.W. 361 (1932). Action in nature of creditor's bill was for trial de novo in Supreme Court. Cary v. Reiter, 122 Neb. 476, 240 N.W. 582 (1932). Action for annulment of marriage was required to be tried de novo. O'Reilly v. O'Reilly, 120 Neb. 720, 234 N.W. 916 (1931). Interpleader suit is one in equity, and is determined de novo on appeal. Citizens Nat. Bank of Wisner v. McNamara, 120 Neb. 252, 231 N.W. 781 (1930). If allegations are sufficient to present executor's right to retain and apply legacy on debt, issue is determined on appeal de novo regardless of surplusage. First Trust Co. of Lincoln v. Cornell, 114 Neb. 126, 206 N.W. 749 (1925). Suit to rescind subscription to corporate stock is triable de novo on appeal. Edgar v. Skinner Packing Co., 112 Neb. 752, 200 N.W. 992 (1924); Brown v. Stroud & Co., 112 Neb. 210, 199 N.W. 33 (1924). Suit to cancel mortgages and remove cloud is triable de novo. King v. DeTar, 112 Neb. 535, 199 N.W. 847 (1924). Action originally commenced at law, but heard in equity below on motion of party, is triable de novo on appeal. Miller v. Baker, 112 Neb. 375, 199 N.W. 845 (1924). In suit to redeem by party not served with process, validity of sheriff's return showing service is triable de novo. First Nat. Bank of Lexington v. Anderson, 106 Neb. 204, 182 N.W. 1021 (1921). In ejectment, where only defense is equitable, case is triable de novo in Supreme Court. Tillson v. Holloway, 94 Neb. 635, 143 N.W. 939 (1913). Section is not applicable to trials to court in law cases. First Nat. Bank of West Point v. Crawford, 78 Neb. 665, 111 N.W. 587 (1907). Suit to enjoin payment of guaranty fund assessments was tried de novo in Supreme Court. Abie State Bank v. Weaver, 282 U.S. 765 (1931). 2. Findings of trial court In an appeal of an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the Supreme Court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Hughes v. Enterprise Irrigation Dist., 226 Neb. 230, 410 N.W.2d 494 (1987); Schmidt v. Chimney Rock Irrigation Dist., 209 Neb. 1, 305 N.W.2d 888 (1981); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981). An equitable matter is reviewed by this court de novo on the record, subject to the rules that where credible evidence on material issues is in conflict, this court will consider that the trial court observed the witnesses and accepted one version of the facts over another, and where the trial court has viewed the premises, this court is required to consider any competent and relevant facts revealed by the viewing and any finding made by the trial court, provided that the record contains competent evidence to support the findings. Burgess v. Omahawks Radio Control Org., 219 Neb. 100 362 N.W.2d 27 (1985). This court reviews matters equitable in nature de novo on the record, subject to the rule that where credible evidence is in conflict on material issues of fact, this court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another. Masid v. First State Bank, 213 Neb. 431, 329 N.W.2d 560 (1983); Seybold v. Seybold, 191 Neb. 480, 216 N.W.2d 179 (1974); Rettinger v. Pierpont, 145 Neb. 161, 15 N.W.2d 393 (1944); Otto v. L. L. Coryell & Son, 141 Neb. 498, 3 N.W.2d 915 (1942); Chitwood Packing Co. v. Warner, 138 Neb. 800, 295 N.W. 882 (1941); First Trust Co. of Lincoln v. Airedale Ranch & Cattle Co., 136 Neb. 521, 286 N.W. 766 (1939); Kennedy v. Buffalo County, 134 Neb. 744, 279 N.W. 464 (1938); Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254 N.W. 869 (1934); Gaunt v. Smith, 103 Neb. 506, 172 N.W. 365 (1919); Shafer v. Beatrice State Bank, 99 Neb. 317, 156 N.W. 632 (1916). On trial de novo of equity case with irreconcilable evidence on material issue, fact that district court made personal observation of physical facts should be considered. Winkle v. Mitera, 195 Neb. 821, 241 N.W.2d 329 (1976). Upon appeal in mechanics' lien actions, when the testimony of witnesses orally examined before the court upon the vital issues is conflicting, the Supreme Court, while trying the case de novo, will consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite. Modern Plumbing & Heating, Inc. v. Journey West Campground, Inc., 193 Neb. 781, 229 N.W.2d 192 (1975). Appeals from the Court of Industrial Relations are to be heard and disposed of de novo, but the superior position of the original trier of fact is to be respected and accorded great weight. Crete Education Assn. v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975); Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W.2d 747 (1972). In actions in equity, it is the duty of the Supreme Court to try the issues of fact de novo on the record and to reach an independent conclusion without reference to the findings of the district court. Shirk v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974); Stocker v. Wells, 150 Neb. 51, 33 N.W.2d 445 (1948). On appeal in equity, Supreme Court is required to make independent conclusions of fact and review is not restricted by fact there may be some evidence to support district court's conclusion or judgment. Schuller v. Schuller, 191 Neb. 266, 214 N.W.2d 617 (1974). This section does not disturb conclusiveness of decisions of fact by juries or by trial judges sitting in their stead in law cases. Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 N.W.2d 177 (1973). Where district court had only cold record before it, the rule pertaining to Supreme Court's consideration of the opportunity of the trial court in equity to observe the witnesses is inapplicable. C & L Co. v. Nebraska Liquor Control Commission, 190 Neb. 91, 206 N.W.2d 49 (1973). In equity, issues of fact are tried de novo in the Supreme Court and, in reviewing findings insofar as credibility of witnesses is concerned, the Supreme Court will take into consideration that the trial court observed the witnesses and their manner of testifying. First Nat. Bank of Omaha v. First Cadco Corp., 189 Neb. 553, 203 N.W.2d 770 (1973); O'Brien v. Fricke, 148 Neb. 369, 27 N.W.2d 403 (1947); Beskas v. Calkins, 135 Neb. 323, 281 N.W. 29 (1938); Ohme v. Thomas, 134 Neb. 727, 279 N.W. 480 (1938); Burrows v. Keebaugh, 120 Neb. 136, 231 N.W. 751 (1930); Peterson v. Winkelmann, 114 Neb. 714, 209 N.W. 499 (1926); Magill v. Magill, 114 Neb. 636, 209 N.W. 241 (1926); Enterprise Planing Mill Co. v. Methodist Episcopal Church of Sterling, 100 Neb. 29, 158 N.W. 386 (1916); Nelson v. City of Florence, 94 Neb. 847, 144 N.W. 791 (1913); Tillson v. Holloway, 94 Neb. 635, 143 N.W. 939 (1913). In equity case, Supreme Court is required to reach an independent conclusion without reference to findings of district court. Mid-America Appliance Corp. v. Federated Finance Co., 172 Neb. 270, 109 N.W.2d 381 (1961); Toelle v. Preuss, 172 Neb. 239, 109 N.W.2d 293 (1961). Supreme Court may take into consideration view of premises by trial court. Hehnke v. Starr, 158 Neb. 575, 64 N.W.2d 68 (1954); Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954). Actions in equity are triable de novo in the Supreme Court, subject to the condition arising from determination of credibility of witnesses by trial court. Parrott v. Hofmann, 151 Neb. 249, 37 N.W.2d 199 (1949). In equity suit, trial de novo is necessary and Supreme Court is required to reach an independent conclusion, without reference to the fact that there may be some evidence in support of findings of trial court. Goodwin v. Freadrich, 135 Neb. 203, 280 N.W. 917 (1938). In determination of appeals in equity, Supreme Court will reach independent conclusions as to findings under pleadings and evidence without reference to those of the district court. Ericson v. Nebraska-Iowa Farm Inv. Co., 134 Neb. 391, 278 N.W. 841 (1938). Where testimony is in conflict and principal fact to be determined rests on evidence of interested witnesses, court will give considerable weight to judgment of trial court. Dvorak v. Kucera, 130 Neb. 341, 264 N.W. 737 (1936). In trial de novo court will give weight to findings of trial court on questions of fact but if convinced that the facts are otherwise will so find. Coe v. Talcott, 130 Neb. 32, 263 N.W. 596 (1935). Where trial court has made a personal examination of physical facts involved and where oral evidence as to material issues is conflicting, appellate court will consider trial court's decision thereon in reaching independent conclusion hereunder. City of Wilber v. Bednar, 123 Neb. 324, 242 N.W. 644 (1932). Supreme Court is required to dispose of appeal without reference to conclusion of court below. State v. Lovell, 117 Neb. 710, 222 N.W. 625 (1929); Colby v. Foxworthy, 80 Neb. 239, 114 N.W. 174 (1907), rehearing denied 80 Neb. 244, 115 N.W. 1076 (1908). Where evidence on material issues is in irreconcilable conflict, court will consider findings below. In re Estate of Waller, 116 Neb. 352, 217 N.W. 588 (1928); Jones v. Dooley, 107 Neb. 162, 185 N.W. 307 (1921); Greusel v. Payne, 107 Neb. 84, 185 N.W. 336 (1921); Wetherell v. Adams, 80 Neb. 584, 114 N.W. 778 (1908). Where trial court has examined physical facts and oral evidence is conflicting, Supreme Court will consider trial court's examination and observation of witnesses. State v. Delaware-Hickman Ditch Co., 114 Neb. 806, 210 N.W. 279 (1926). It is the duty of Supreme Court to retry case. Coad v. Coad, 87 Neb. 290, 127 N.W. 455 (1910). Findings below are not conclusive but entitled to consideration if not to considerable weight. Corn Exchange Nat. Bank of Chicago v. Jansen, 70 Neb. 579, 97 N.W. 814 (1903). 3. Miscellaneous Specific performance of contract on realty denied where circumstances revealed time was of the essence. Menke v. Foote, 199 Neb. 800, 261 N.W.2d 635 (1978). Assignments of error are required even though trial is de novo. Smallcomb v. Smallcomb, 165 Neb. 191, 84 N.W.2d 217 (1957). Upon trial de novo, finding of nonexistence of valid option was sustained. Budde v. Anderson, 156 Neb. 812, 58 N.W.2d 204 (1953). In equity case, presumption obtains that trial court considered only such evidence as was competent and relevant. Rohn v. Kelley, 156 Neb. 463, 56 N.W.2d 711 (1953). In action in equity where trial is de novo, court may do that which in equity and good conscience should be done. Mangiameli v. Mangiameli, 153 Neb. 753, 45 N.W.2d 910 (1951). Where, in a trial in equity, the district court receives evidence over objection, and a motion for new trial is not made, the Supreme Court upon trial de novo will consider such evidence preserved in the bill of exceptions and give it whatever probative value it may have. Nemetz v. Nemetz, 147 Neb. 187, 22 N.W.2d 619 (1946). Since equity suit is tried de novo in Supreme Court, remarks of trial court indicating prejudice will not cause reversal. Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W.2d 634 (1944). Rule that appeals in equity must be tried de novo in Supreme Court is subject to the qualification that where defendant moves to dismiss at the close of plaintiff's case, and motion is sustained, the court on appeal will treat the plaintiff's testimony as true, together with every conclusion which may fairly and reasonably be drawn therefrom. Meyer v. Platt, 137 Neb. 714, 291 N.W. 86 (1940). On trial de novo evidence was insufficient to prove alleged lost or stolen contract on which plaintiff relied. Cohen v. Swanson Petroleum Co., 133 Neb. 581, 276 N.W. 190 (1937). In proceedings to establish heirship, where only questions of fact are involved, parties are entitled to jury; no trial de novo on appeal. In re O'Connor's Estate, 117 Neb. 636, 222 N.W. 57 (1928). Appeal suspends divorce decree, and brings case up for trial de novo. Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429 (1927). Facts alleged must be supported by competent evidence to entitle plaintiff to decree in trial de novo on appeal. Miksch v. Tassler, 108 Neb. 208, 187 N.W. 796 (1922). Judgment should be affirmed if, for sufficient reason appearing in record, it was correct. Dappen v. Weber, 106 Neb. 812, 184 N.W. 952 (1921). Evidence must be preserved in bill of exceptions for trial of issue of fact de novo. Thies v. Thies, 103 Neb. 499, 172 N.W. 364 (1919), affirmed on rehearing 103 Neb. 501, 175 N.W. 646 (1919). Supreme Court is not required to try whole case de novo, but to try and independently decide such issues only as are presented by appeal. Northwestern Mutual Life Ins. Co. v. Mallory, 93 Neb. 579, 141 N.W. 190 (1913). Ordinary rules as to burden of proof, competency, and materiality of evidence, apply. Beckman v. Lincoln & N. W. R. R. Co., 79 Neb. 89, 112 N.W. 348 (1907). Presumption in favor of findings exists where testimony was given orally but not by deposition. Roe v. Howard County, 75 Neb. 448, 106 N.W. 587 (1906). Amended petition to conform to facts proved in record may be filed. Raley v. Raymond Bros. Clarke Co., 73 Neb. 496, 103 N.W. 57 (1905). Findings based upon depositions are disregarded; if based on oral testimony are not regarded unless upon whole record appear correct. Naudain v. Fullenwider, 72 Neb. 221, 100 N.W. 296 (1904). There is no presumption in favor of findings. Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585, 96 N.W. 140 (1903), rehearing denied 69 Neb. 592, 98 N.W. 413 (1904). Court may still remand for further proceedings. Hanson v. Hanson, 4 Neb. Unof. 880, 97 N.W. 23 (1903). Plaintiff's death during de novo appeal has the same effect as if he or she had died before the trial court's judgment. Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001).