MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

All but one of the parties against which default judgments were entered appeal from the district court's order refusing to vacate the judgments. Because the appellants timely filed a motion to set aside the default judgments and tendered an answer disclosing a meritorious defense, the district court should have sustained the motion on reasonable terms and permitted the cause to be heard on the merits. To this extent, we reverse, and remand for further proceedings.

BACKGROUND

InterCall, Inc., is a provider of audio, Web, and video conferencing services. InterCall filed a complaint against HRJ Capital, L.L.C., and 17 other parties having similar names (the appellants) in the district court for Douglas County on August 17, 2009, claiming breach of contract. InterCall alleged that "[d]espite making conferencing services available to Defendants at Defendants' request, Defendants has [sic] neglected, refused, and failed to pay for all services rendered by InterCall." InterCall requested damages in the amount of $45,718.41, plus costs and fees. In an order filed on December 4, 2009, the district court granted InterCall's motion for default judgment against all of the defendants and entered a judgment in favor of InterCall in the sum of $45,718.41, plus applicable interest, and the costs of the action.

On February 24, 2010, the appellants filed a special appearance and moved to set aside the default judgment. They alleged that they had at least four meritorious defenses to the judgment including that (1) InterCall had no basis for its cause of action, (2) InterCall had no evidence of a contract, (3) there was evidence that a contract was entered by HRJ Capital, L.L.C., but not by the appellants, and (4) the court lacked personal jurisdiction over the appellants. The appellants' motion also set forth the timeliness of the motion.

At the hearing on the appellants' motion, they offered the affidavit of Stefan Ammann, which was received into evidence as exhibit 1. The district court overruled the appellants' motion on March 19, 2010, and filed a written order on June 12. In its order, the district court stated that it took judicial notice of "[InterCall's] affidavit, returns of service, and prior judgment."

The appellants filed their notice of appeal on April 16, 2010, which we treat as having been filed on June 12, 2010, upon entry of the district court's order. See Neb. Rev. Stat. § 25-1912(2) (Reissue 2008). Pursuant to our authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), we have ordered this case submitted for decision without oral argument.

ASSIGNMENTS OF ERROR

The appellants assign that the district court erred in (1) entering default judgment against them and (2) refusing to set aside the default judgment.

On cross-appeal, InterCall alleges, consolidated and restated, that the district court erred in receiving the affidavit of Ammann into evidence over InterCall's hearsay and foundation objections.

STANDARD OF REVIEW

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). The question of jurisdiction is a question of law. In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009).

In reviewing a trial court's action in vacating or refusing to vacate a default judgment, an appellate court will uphold and affirm the trial court's action in the absence of an abuse of discretion. Design Builders, Inc. v. Heyd-Lamb, 10 Neb.App. 642, 635 N.W.2d 543 (2001).

ANALYSIS

Entry of Default Judgment.

We lack jurisdiction of the appellants' first assignment of error—that the district court erred in entering default judgment against them. To vest an appellate court with jurisdiction, a party must timely file a notice of appeal. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007). The district court entered default judgment in favor of InterCall on December 4, 2009. The appellants did not file their notice of appeal from the default judgment within 30 days as required by § 25-1912. Because they did not do so, this court lacks jurisdiction to consider their first assignment of error.

Refusal to Set Aside Default Judgment.

Because the appellants' notice of appeal was filed after the district court announced its decision overruling their motion to vacate the default judgment and prior to entry of the court's order doing so, their notice of appeal is treated as filed after the entry of the order and on the date of entry. See § 25-1912(2). Accordingly, we have jurisdiction of the appellants' assignment that the district court erred in refusing to set aside the default judgment.

When the court has entered a default judgment and the defendant has made a prompt application at the same term to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable terms sustain the motion and permit the cause to be heard on the merits. State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007).

The appellants promptly filed their application to set aside the default judgment. The district court entered the default judgment on December 4, 2009. The appellants filed their motion to set aside the default judgment on February 4, 2010. The regular term for the district court for Douglas County begins on January 1 of each calendar year and concludes on December 31 of the same calendar year. See Rules of Dist. Ct. of Fourth Jud. Dist. 4-1C (rev. 1995). Thus, the regular term ended only 27 days after the entry of default. However, Neb. Rev. Stat. § 25-2001(1) (Reissue 2008) expands the inherent power to vacate a judgment within term. It states: "The inherent power of a district court to vacate or modify its judgments or orders during term may also be exercised after the end of the term, upon the same grounds, upon a motion filed within six months after the entry of the judgment or order." § 25-2001(1). The appellants filed their motion to set aside the default judgment only 2 months after it was entered and well within the 6-month period specified in § 25-2001(1). Section 25-2001(1) empowered the district court to consider the motion under its inherent power, and the motion was clearly filed within a short period of time after the judgment was entered.

In addition to promptly filing an application to set aside the default judgment, the party must also tender an answer or other proof disclosing a meritorious defense. In the context of a motion to vacate a default judgment, a meritorious or substantial defense or cause means one which is worthy of judicial inquiry because it raises a question of law deserving some investigation and discussion or a real controversy as to the essential facts. State on behalf of A.E. v. Buckhalter, supra. To vacate a default judgment, a defendant is not required to show that he will ultimately prevail, but only that he has a recognized defense that is not frivolous. Id.

In the appellants' motion to set aside the default judgment, they alleged four defenses previously summarized, which, if proved, would be meritorious.

At the hearing on the appellants' motion, they offered into evidence exhibit 1, the affidavit of Ammann, in support of their motion. Because of our disposition of InterCall's cross-appeal, it is not necessary to summarize the contents of the affidavit. The district court received exhibit 1 into evidence over InterCall's hearsay and foundation objections.

Because the counter-affidavit upon which InterCall relies is not included in the bill of exceptions, we cannot consider it. On cross-appeal, InterCall argues that the district court erred in receiving Ammann's affidavit into evidence. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). InterCall argues that Ammann's statements are "conclusory and lack proper foundation" because Ammann's organization did not begin managing the appellants until July 2009 and "the record" shows that the appellants opened their accounts prior to July 2009 and that the unpaid services in dispute were rendered prior to July 2009. Brief for appellee InterCall on cross-appeal at 23. "[T]he record" relied upon by InterCall is the affidavit of Teresa Menking, including attachments, which was judicially noticed by the district court. However, the court did not include the Menking affidavit in the evidentiary record in the manner necessary to bring it before this court. A bill of exceptions is the only vehicle for bringing evidence to an appellate court; evidence which is not made a part of the bill of exceptions may not be considered. Huddleson v. Abramson, 252 Neb. 286, 561 N.W.2d 580 (1997). Items judicially noticed are to be separately marked, offered, and received as evidence to enable efficient review by this court. Saunders Ctty. v. Metropolitan Utilities Dist.-A, 11 Neb.App. 138, 645 N.W.2d 805 (2002). This rule must be followed in order to place the items in the bill of exceptions, which, as we have already noted, is the only vehicle for bringing evidence before us. Because Menking's affidavit appears only in the transcript, it is not properly before us on appeal and cannot be considered.

We need not consider InterCall's other arguments regarding the Ammann affidavit as we assume without deciding that the district court erred in receiving it into evidence. We have already explained that the Menking affidavit is not properly before us. Disregarding the Ammann affidavit, we are left with only the appellants' motion to set aside the default judgment which alleged four potentially meritorious defenses. Because the appellants timely filed a motion to set aside the default judgment and tendered an answer or other proof disclosing a meritorious defense, the district court abused its discretion in refusing to sustain the appellants' motion and permit the cause to be heard on the merits. See State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007).

CONCLUSION

The Menking affidavit, upon which InterCall relies, is not properly before us. We assume without deciding that the district court should not have received the Ammann affidavit. All that remains is the appellants' answer, which was promptly filed and appears to set forth meritorious defenses. The district court abused its discretion when it failed to set aside the default judgment in favor of InterCall as against the appellants. Of course, the default judgment entered against HRJ Capital, L.L.C., is not affected by our decision, and to this extent, the judgment must be affirmed. As to the default judgment against the appellants, however, we reverse, and remand for further proceedings.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.