
    Tolerton & Stetson Company v. McClure, Haggerty & Company.
    Filed June 18, 1895.
    No. 6313.
    1. Trial to Court: Admission or Incompetent Testimony. In a cause tried to the court without the intervention of a jury the admission of incompetent evidence is not reversible error. Following Whipple v. Fowler, 41 Neb., 675.
    2. Sufficiency of Evidence: Review. The findings of fact of the district court which are supported by sufficient evidence will not be disturbed in error proceedings upon the assignment that the judgment is against the weight of the evidence.
    Error from the district court of Holt county. Tried below before Bartow, J.
    
      W. H. Farnsworth, for plaintiff in error.
    
      H. M. Uttley, contra.
    
   Ryan, C.

In this court Tolerton & Stetson Co., an Iowa corporation, is the plaintiff in error, and the firm of McClure, Haggerty & Co. is the sole defendant in error. The party j last named began this action May 18, 1888, in the district court of Holt county for the foreclosure of a morlgage made by John C. Hayes and his wife. This mortgage was of date, and was filed for record, November 3, 1887. On the day last mentioned suit was begun in said district court by plaintiff in error against John C. Hayes, in which suit on the same day an attachment was levied upon the real property described in the aforesaid mortgage. There was rendered a judgment on December 12, 1887, in favor of plaintiff in error against John C. Hayes in the aforesaid attachment suit for the sum of $1,033, and the attached property was ordered sold. In the foreclosure action the plaintiff in error, as a judgment creditor of John C. Hayes, was joined with him as a defendant and answered in denial of the existence of an indebtedness from Hayes to the petitioner for foreclosure, and alleging that the mortgage was fraudulent as to creditors of Hayes. A decree was entered as prayed by the defendant in error.

There are assignments of error pertaining to the competency of certain evidence which need not be considered, since this cause was tried to the court without the intervention of a jury. (Whipple v. Fowler, 41 Neb., 675.) There was ample evidence to sustain the findings of the district court. Its judgment is therefore

Affirmed.  