Clark v. Sweet, 36980

• Decision Date: 17 January 1969
• Docket Number: No. 36980,36980
• Citation: 163 N.W.2d 881,183 Neb. 723
• Parties: In re Application of Florence G. Clark and Francis J. Clark, etc., Florence G. CLARK and Francis J. Clark, Appellants, v. Violet SWEET and Arthur Fuelberth, Appellees.
• Court: Nebraska Supreme Court

Page 881

163 N.W.2d 881

183 Neb. 723

In re Application of Florence G. Clark and Francis J. Clark, etc., Florence G. CLARK and Francis J. Clark, Appellants, v. Violet SWEET and Arthur Fuelberth, Appellees.

No. 36980.

Supreme Court of Nebraska.

Jan. 17, 1969.

Syllabus by the Court

The provisions of section 27--1301.01, R.S.Supp., 1967, do not apply to appeals taken from the action of a freeholder board. Section 79--403, R.R.S.1943.

Edward E. Hannon, Julius D. Cronin, O'Neill, for appellants.

Wilson, Barlow & Watson, Lincoln, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and SCHMIDT, District Judge.

SCHMIDT, District Judge.

This is an appeal from a judgment of the district court for Holt County. The judgment dismissed an appeal taken to that court from a rejection by a freeholder board of a freeholders' petition. For the purposes of the hearing in the district court on the motion to dismiss the appeal the parties stipulated the facts to be as follows:

'That on October 23, 1967 the Board provided by Section 79--403 Reissue Revised Statutes of Nebraska for 1943, as amended, consisting of the County Superintendent, County Clerk and County Treasurer of Holt County, Nebraska held a public hearing on the freeholder petition of Florence G. Clark and Francis J. Clark to transfer certain land from School Districts Numbers 22, 86 and 25 of Holt County, Nebraska, and attach the same to School District Number 44 of Holt County, Nebraska. Immediately following that hearing, the Board denied said petition and its action of denial was duly entered on the records of said Board of October 23, 1967. That thereafter, Florence G. Clark and Francis J. Clark filed with the County Clerk of Holt County, Nebraska within 20 days after October 23, 1967, a Notice of Appeal and a Bond in said matter; and a transcript of the proceedings had before such Board was filed with the Clerk of the District Court of Holt County, Nebraska on November 13, 1967. It was further stipulated that the petitioners did not serve a copy of said Notice of Appeal upon the objectors Violet Sweet and Arthur Fuelberth who had filed with the Board prior to said public hearing written objections to said freeholder petition, nor upon their attorney Gene D. Watson who had appeared and represented said objectors at the public hearing before the Board on October 23, 1967, or upon anyone else, within twenty days after October 23, 1967. On November 28, 1967 the petitioners' attorney mailed to Gene D. Watson, the attorney for the objectors, a copy of the Notice of Appeal, Appeal Bond and Petition on Appeal. It was further stipulated by the parties that for the purposes of said Motion to Dismiss Appeal, the petitioners did all other acts and things necessary to perfect their appeal, and the only issue presented was whether the petitioners were required by the applicable Statutes of the State of Nebraska to serve a copy of the Notice of Appeal upon the objectors or upon their attorney of record within twenty days from October 23, 1967, to confer jurisdiction upon the District Court of Holt County, Nebraska.'

The only question for decision here is whether the provisions of section 27--1301.01, R.R.S.Supp., 1967, apply.

Appellees argue as follows: (1) Section 79--403,...