Frenchman-Cambridge Irr. Dist., Application of, FRENCHMAN-CAMBRIDGE

Decision Date09 March 1951
Docket NumberFRENCHMAN-CAMBRIDGE,No. 32932,32932
PartiesApplication ofIRRIGATION DIST. IRRIGATION DIST. v. FERGUSON et al.
CourtNebraska Supreme Court

Syllabus by the Court.

1. A confirmatory action prosecuted under the provisions of section 46-1,151, R.S.1943, is a special proceeding in rem wherein, upon proper legal notice, jurisdiction is given the district court to render a valid judgment upon the issues appropriately involved in the particular case presented.

2. As provided by section 25-1143, R.R.S.1943, an application for new trial must be made within ten days, either within or without the term, after the verdict, report, or decision is rendered, except (1) where unavoidably prevented, or (2) for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial.

3. A motion for a new trial which is not filed within the time specified by statute is a nullity and of no force and effect.

4. This court is without jurisdiction to entertain an appeal from the district court unless, as provided by section 25-1912, R.R.S.1943, notice of appeal is filed in the office of the clerk of the district court and the docket fee is deposited with such clerk within one month after rendition of the judgment or decree, or within one month from the overruling of a motion for new trial timely filed in the cause.

Frank B. Morrison, McCook, for appellant.

Monsky, Grodinsky, Good & Cohen, Omaha, Butler & Eisenhart, Cambridge, for appellees.

Clarence Eynon, Denver, Colo., Edward W. Fischer, Washington, D.C., amicus curiae.

Heard before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Having entered into a contract with the United States, as provided in sections 46-1,147 to 46-1,150, R.S.1943, the Frenchman-Cambridge Irrigation District, hereinafter designated as the district, filed this proceeding under the provisions of sections 46-1,151 and 46-1,152, R.S.1943, seeking judicial approval and confirmation of: (1) The organization of the district; (2) the proceeding of the board of directors thereof leading up to and including the making of said contract; and (3) the validity of the terms thereof.

Thereto objections were filed by Myrtle L. Ferguson, an owner of land in the district with allegedly long prior adjudicated water appropriation rights appurtenant thereto from the 'C. H. Meeker Canal,' one of the water facilities of which, by condemnation, the United States had taken possession and control for the purpose of supplying water to lands of objectors and others having similar prior water appropriation rights, to be operated as a part of the Frenchman-Cambridge Irrigation District under the proposed contract.

A hearing was had upon the issues thus made, whereat evidence was adduced, and on July 19, 1950, the trial court entered its decree approving and confirming legality of the organization of the district and the proceedings of the board of directors thereof leading up to and including the making of the contract. However, with reference to validity of the terms of the contract, it found and adjudged that Article II, section c, Article 32, Article 33, section e, and Article 35 thereof, to which objections had been made, were invalid and unenforceable in any event, and also that Article 34, section b, and Article 33, section g thereof, to which objection had been made, were inapplicable and unenforceable insofar as applicable to objector's lands and other lands in the district having prior valid existing water appropriations under the 'C. H. Meeker Canal.' In all other respects the contract was approved, confirmed, and ratified.

Thereafter, on August 29, 1950, more than 40 days after rendition of the decree, instead of within 10 days as required by section 25-1143, R.R.S.1943, the district filed a motion to set aside the decree. Having theretofore been argued and submitted, such motion was overruled on September 11, 1950, as being in the nature of a motion for new trial not filed within the time required by law.

Subsequently, on September 21, 1950, more than two months after entry of the decree instead of within one month as required by section 25-1912, R.R.S.1943, the district filed a notice of appeal from the decree and the...

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    • United States
    • California Supreme Court
    • 24 Enero 1957
    ... ... New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885; see Frenchman-Cambridge Irr. Dist. v. Ferguson, 154 Neb. 20, 46 N.W.2d 692. The judgment is limited to a determination of ... application was made to the United States for loans or grants of federal funds sufficient to construct the ... ...
  • Frenchman Val. Irr. Dist., Application of
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    • Nebraska Supreme Court
    • 11 Julio 1958
    ...proceedings of the board of directors thereof leading up to and including the making of a contract. See Frenchman-Cambridge Irrigation Dist. v. Ferguson, 154 Neb. 20, 46 N.W.2d 692, 694. In the case of Frenchman-Cambridge Irrigation Dist. v. Ferguson, supra, it is said: 'It will be observed......
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    • Nebraska Supreme Court
    • 27 Febrero 1953
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    • United States
    • Nebraska Supreme Court
    • 16 Mayo 1958
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