
    James Barry v. Patrick Barry.
    Filed March 6, 1894.
    No. 5328.
    1. Appeal from County Court: Failure to File Transcript: Dismissal. In case an appeal is taken from the county court to the district court, except in matters of prohate jurisdiction, the appellant must file, or cause to be filed, with the clerk of the district court of the proper county a transcript of the proceedings on or before the thirtieth day after the rendition of the judgment, and in case such transcript is not so filed within the thirty days, the district court, upon motion of the appellee, may dismiss the appeal and remand the cause to the county court, to be there proceeded in as if no appeal had been taken.
    2. Review: Affidavits: Motions: Bill of Exceptions. Affidavits used on the hearing of a motion in the district court, to be available in this court, must be incorporated in a bill of exceptions.
    Error from tbe district court of Dakota county. Tried below before Norris, J.
    
      Jay & Beck, for plaintiff in error.
    
      John T. Spencer, contra.
    
   Nor val, C. J.

On the 9th day of December, 1891, defendant in error obtained a judgment in the county court of Dakota county against plaintiff in error for the sum of $193.18, with costs. On the 14th day of December, plaintiff in error filed with said court an appeal undertaking, and the same was duly approved. On the 12th day of January following, a transcript of the proceedings was filed in the district court. The defendant in error filed in said court a motion to dismiss the appeal on the ground that the transcript was not filed within thirty days after the rendition of the judgment. The court sustained the motion, dismissed the appeal, and remanded the cause to the county court for proceedings therein as though no appeal had been taken. This ruling is before us for review.

This court has more than once held that in order to perfect an appeal taken from the judgment of a justice, the appellant must file a transcript of the proceedings in the office of the clerk of the district court of the proper county within thirty days after the rendition of the judgment, and in case the same is not so filed, the district court is authorized, on motion of the appellee, to dismiss the appeal and remand the cause to the justice court, to be there proceeded with as if no appeal had been taken. (Slaven v. Hellman, 24 Neb., 646; Converse Cattle Co. v. Campbell, 25 Neb., 37; Lincoln Brick & Tile Works v. Hall, 27 Neb., 874.)

Section 26, chapter 20, Compiled Statutes, relating to appeals from county courts, provides that “either party may appeal from the judgment of the probate [county] court, or prosecute a petition in error, in the same manner as provided by law in cases tried and determined by justices of the peace,” etc. Under the foregoing provision an appeal from a judgment of the county court must be taken and perfected in the same time as allowed by law for appeals from judgments of justice courts; that is to say, the appeal undertaking must be filed within ten days after judgment is entered and the transcript of the proceedings must be delivered to the clerk of the district court on or before the thirtieth day after the rendition of the judgment. In this case the appeal was not perfected in time, since plaintiff in error did not file his transcript in the district court until the thirty-fourth day. (Maggard v. Van Duyn, 36 Neb., 862.)

Plaintiff in error contends that the affidavit of Mell C. Jay, copied into the transcript prepared for this court, contains sufficient facts to excuse the failure to file the transcript in the statutory period. The affidavit referred to cannot be considered by us, for the reason that the same is not made a part of the record of the case by a bill of exceptions. We have no means of knowing whether the affidavit was called to the attention of the district court on the hearing of the motion, or whether any evidence was produced on such hearing. Often this court has decided that affidavits used in support of a motion in the trial court will not be considered in the reviewing court, unless the same are embodied in a bill of exceptions.' This rule cannot be departed from. (Tessier v. Crowley, 16 Neb., 369; Bradshaw v. State, 17 Neb., 147; Graves v. Scoville, 17 Neb., 593; Olds Wagon Co. v. Benedict, 25 Neb., 372; Maggard v. Van Duyn, supra; Aldrich v. Bruss, 39 Neb., 569.)

The district court did not err in dismissing the appeal, and the decision is

Affirmed.  