
    Omaha National Bank, appellee, v. H. B. Graham, appellant.
    Filed October 30, 1915.
    No. 18310.
    Pleading: Affirmative Defense: Burden of Proof. Where the answer admits the material allegations in the petition, and pleads an affirmative defense thereto, the burden is upon the defendant to establish such defense by a preponderance of the evidence.
    Appeal, from the district court for Douglas county: Alexander G. Troup, Judge.
    
      Affirmed.
    
    
      Brome & Brome and Westerfield & Crossman, for appellant.
    
      Stout, Rose & Wells, contra.
    
   Fawcett, J.

This suit was instituted in the district court for Douglas .county, to recover on a promissory note executed by defendant, and for the foreclosure and sale of certain stock in two corporations, pledged as collateral security for the payment of the note. The pledge was in writing and contained an express power of sale. The consideration for the note was a loan of money to the full sum named in the note. Plaintiff was granted the relief prayed. Defendant appeals.

The answer admits the execution of the note and delivery of the collateral, and then pleads an affirmative defense, based upon transactions wbicb defendant alleges he bad with W. H. Bucholz, who at tbe beginning of tbe transactions was cashier, but later on became vice-president, and during all of the time was one of tbe directors and managing officers of plaintiff.

It would avail nothing to set out even tbe substance of tbe pleading, as defendant has failed to establish tbe facts alleged, by a preponderance of tbe evidence, tbe burden of doing wbicb was upon him. This being tbe condition of tbe record, tbe question of tbe sufficiency of tbe facts alleged, if proved, to constitute a defense becomes immaterial. We concede that it is our duty to consider tbe case de novo and to reach an independent conclusion without reference to that reached by tbe trial court. This we have done, and, if tbe record were before us as an original case, we would be forced to tbe same conclusion as that reached by tbe trial court.

It follows that tbe judgment of tbe district court must be, and it is

Affirmed.

Rose and Hamer, JJ., not sitting.  