In its motion for rehearing the plaintiff urges that, because we held that the affidavits upon which plaintiff relied to support its attachment ivere incompetent because sworn to before its attorney, who was a notary public, we should have remanded the case for a rehearing upon its merits. Plaintiff insists that defendant’s objections to the affidavits should have been interposed before trial in the manner provided by statute for the filing of objections to depositions. Section 371 of the code, providing that an affidavit may be made before any person authorized to take depositions, cannot inferentially be construed as requiring that objections to affidavits as evidence shall be made in the manner provided by statute for interposing objections to depositions.
Again, it is not made clear as to how the rule invoked by appellant would avail him. The trial court admitted the affidavits in evidence. He undoubtedly would have admitted them, had the objection been made in a different form. Plaintiff cannot take advantage of the erroneous rulings of the court which he invokes. A party litigant. *232must in the first instance be the judge of the competency of his evidence, and, upon'objection being interposed by the adverse party, it is his privilege to submit to the objection made, and if he submits to the objection, or his evidence be held incompetent because of the form in which it is presented, the trial court should, in cases such as the one at bar, grant a continuance, if necessary, that the evidence may be presented in its proper form. Where a party refuses or fails to submit to his adversary’s objection, but insists upon presenting the incompetent evidence, he does so at his peril. This court can consider none but the competent evidence presented by the record.
There is another reason for refusing a rehearing of this case. The facts appearing in the objectionable affidavits are competent as evidence, although not presented in acceptable form. For this reason, we have examined the affidavits to ascertain whether or not appellant has been prejudiced by its failure to properly present them. Plaintiff relies upon alleged misrepresentations of defendant as to his financial condition made when the debt was incurred. The affidavits refer to conversations in which it is claimed that defendant misrepresented his financial condition. No two of plaintiff’s witnesses swear to the same conversation. Defendant denies each controlling fact sworn to by plaintiff’s witnesses. It was one man’s evidence against another’s. If defendant’s evidence is true, plaintiff is not entitled to an attachment. The rule is well established in this court that, where the allegations made in support of an attachment are denied by the oath of the defendant, the burden is upon the plaintiff to prove his alleged grounds for attachment by a preponderance of the evidence. Geneva Nat. Bank v. Bailor, 48 Neb. 866; Dolan v. Armstrong, 35 Neb. 339. The plaintiff did not successfully carry the burden of proof.
. We recommend that the motion for a rehearing be overruled.
Duffie and. Good, GO., concur.*233By tlie Court: For the reasons stated in the foregoing opinion, plaintiff’s motion for a rehearing is
Overruled.