dissenting.
I cannot agree with the opinion for the following reasons: (1) We are permitting the appellant to benefit from her failure to file a complete record and in essence putting the burden of a complete record on the appellee; (2) there is no genuine issue as to any material fact involved herein; and (3) appellant is liable for the shortages listed as a matter of law.
Supplementing the facts set out in the opinion, there is no transcript from the county court attached to this record. The appellant, who was the guardian of the minor, on August 11, 1959, filed a petition for approval of the guardian’s account in the district court. This petition recited that the guardian on April 1, 1959, filed a report and accounting and that a copy of said annual report is set forth in the transcript filed herein. The petition further had attached a copy of the report which was marked exhibit A and made a part of the petition. Objections were filed by Robert S. Finn, guardian ad *287litem. These objections recite that he was appointed by the county court of Johnson County as guardian ad litem for the minor. The objections were filed July 31, 1959, or 11 days before the petition, apparently sometime after the transcript on appeal was filed. This pleading of the guardian ad litem objected to the reports on file of the guardian insofar as they reflected shortages alleged to exist. Subsequent to the filing of the petition of the appellant, the guardian ad litem, hereinafter referred to as appellee, filed requests for admissions. Answers were filed by the appellant November 24, 1959. The appellee, on December 4, 1959, filed a motion for summary judgment and attached thereto a copy of a petition and application filed by the appellant in the Lewis E. Laflin estate in county court. This attached petition and application sought to recover from the Laflin estate for the money belonging to the ward which the appellant had turned over to Lewis E. Laflin, her former attorney, and for which she admits she has not accounted to her ward. Appellant filed an affidavit in resistance to the motion for summary judgment. In the affidavit, appellant admits that she has not accounted for the shortages resulting from funds which were turned over to her attorney for the purchase of bonds. She alleges that all the liability for the shortages in said guardian’s accounts is the primary and direct responsibility and liability of Lewis E. Laflin, her former attorney.
It was the appellant who appealed from the county court. It was the appellant who had the responsibility to see that a proper transcript was filed in the district court. It certainly should have been the responsibility of the appellant to file a proper record in this court.
If the transcript had not been properly authenticated, this court would not acquire jurisdiction. Brockman Commission Co. v. Sang, 52 Neb. 506, 72 N. W. 856. Why should the rule be different if a clearly deficient record or transcript is filed?
*288Because of the reference to the county court transcript in appellant’s petition, it can be assumed one was on file in the district court. If, however, no transcript was filed in the district court, the district court would have been without jurisdiction to hear the appeal, and, of course, if the district court was without jurisdiction, this court should have been without jurisdiction.
We said as late as Anania v. City of Omaha, 170 Neb. 160, 102 N. W. 2d 49: “An appellate court may not consider or decide a case within its appellate jurisdiction unless its authority to act is invoked in the manner prescribed by law.”
A county court has original and exclusive jurisdiction in guardianship matters. Olsen v. Marsh, 142 Neb. 800, 8 N. W. 2d 169.
We have said many times that a guardianship matter is a probate matter. In re Guardianship of Hergenrother, 141 Neb. 858, 5 N. W. 2d 118. In In re Guardianship of Warner, 137 Neb. 25, 288 N. W. 39, we said that the statute dealing with appeals in probate matters is applicable to guardianship proceedings.
Section 30-1606, R. R. S. 1943, directs that upon the filing of the transcript from the county court in the district court, that court shall be possessed of the action and shall proceed to hear, try and determine the same in like manner as upon appeals brought from the county court in civil actions. It is the filing of the transcript from the county court in the district court which confers jurisdiction upon the district court. Rhea v. Brown, 4 Neb. (Unoff.) 461, 94 N. W. 716.
As early as Galley v. Knapp, 14 Neb. 262, 15 N. W. 329, we said: “Every case submitted to this court for review should contain a transcript of the pleadings constituting the issue tried in the district court, otherwise the judgment of the court below will be affirmed.”
In Badger Lumber Co. v. Mayes, 38 Neb. 822, 57 N. W. 519, we said: “* * * some consideration is due to the court, and that appellants should at least be required *289to present to this court a record written in a legible manner and arranged in such a way that the court may ascertain upon whose part the different portions of the evidence were offered, if not the order in which they were received, and also without the difficulty of solving an enigma determine (determining) what evidence was before the trial court, and what excluded. If the appellants fail to do this, this court should presume, in matters not clearly appearing, that there was evidence justifying the trial court in its findings.”
As I view this record, the appellant did not file a proper transcript. It is the appellant who has failed to make a case to sustain her appeal. Her appeal should be dismissed. The effect of the opinion is to reward appellant because of her failure to bring up the jurisdictional part of the record. The appellant has not raised the question of jurisdiction in any way. In view of the fact that the appellee is the representative of a minor attempting to force a fiduciary to account to her ward, it would make much more sense to require a diminution of the record than to penalize the appellee for the appellant’s omission.
The opinion further appears to suggest that a final accounting in county court is essential to a judgment against a surety on. a guardian’s bond. That was the law previous to 1951. In 1951, the Legislature passed Legislative Bill No. 150 (Laws 1951, c. 54, p. 184), which is now found in the Reissue Revised Statutes of 1943, sections 24-606 to 24-618). That act made it possible for guardians to have interim accountings which would have the legal finality of a final accounting. I suggest that the cases cited in the opinion are no longer applicable and that we are justified in assuming, in the absence of the transcript, that the alleged annual report was such interim accounting. The appointment of a guardian ad litem in county court would certainly indicate such was the case. If it is to be assumed that this court has jurisdiction, then the judgment should be affirmed.
*290A review of the pleadings which do appear in the record indicates that there is no genuine issue of fact. The appellant has admitted she received the amounts for which she has been surcharged. She admits that she turned these amounts, without the approval of the county court, over to her attorney for investment in bonds, and that she never secured the bonds from him. In her affidavit she attempts to suggest that the attorney should be held as a trustee because of the trust and confidence she reposed in him, and that the primary liability herein is that of his estate and is not hers.
There can be no question but that the primary liability is that of the guardian, and that her liability is not in any manner dependent upon her ability to recover from the Laflin estate. In my judgment the appeal herein should be dismissed for want of a proper record.