Anderson v. State
Decision Date | 22 February 1957 |
Docket Number | No. 34118,34118 |
Citation | 163 Neb. 826,81 N.W.2d 219 |
Parties | Larry ANDERSON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. A defendant in a misdemeanor case, desiring to appeal from a lower court to the district court, must substantially comply with the requirements of section 29-611, R.R.S.1943, in order to give the latter court jurisdiction.
2. The record of the county court, as embodied in a duly authenticated transcript, imports absolute verity and cannot be contradicted in the appellate court by extrinsic evidence.
3. When a transcript is filed in time, although incomplete, the appellate court acquires jurisdiction of the case.
4. Where a party has, within due time, done all that he is legally required to do to perfect an appeal and no act or fault is shown on his part, or that of his counsel, which prevented the county judge from properly performing his duty in regard thereto, then the district court will not lose jurisdiction of the appeal merely by reason of the fact that the county judge filed an incomplete transcript.
Charles A. Fisher, Chadron, for plaintiff in error.
C. S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE and BOSLAUGH, JJ.
This is an error proceeding from the district court for Sioux County lodged in this court by Larry Anderson. Anderson was the defendant below and we shall so refer to him in this opinion. Defendant complains of the district court's order dismissing his appeal from the county court of Sioux County.
Defendant seems to have gotten into trouble in the village of Harrison in Sioux County on November 17, 1954. As a consequence thereof the sheriff of that county brought charges against him in the county court complaining that he was disturbing the peace; operating a motor vehicle while under the influence of alcoholic liquor; operating a motor vehicle upon the streets and highways in willful disregard for the safety of persons and property; and willfully resisting, abusing, and threatening the marshal of the village of Harrison. On November 19, 1954, defendant entered a plea of guilty to the first two and fourth of these charges and was sentenced thereon, the third being dismissed. Thereafter, on November 26, 1954, defendant sought to appeal from all three charges on which he had been sentenced, giving notice of appeal and providing a bond for that purpose.
In the county court the complaint of disturbing the peace was filed as case No. 542 and the complaints charging the other three offenses were filed as case No. 543.
On November 27, 1954, which was within 10 days of November 19, 1954, defendant filed with the county judge of Sioux County a notice of his intention to appeal to the district court for Sioux County together with a praecipe. The notice of appeal covered all three of the charges to which he had pleaded guilty and on which he had been sentenced. The praecipe requested the county judge to fix the amount of the appeal bond and to prepare a properly certified transcript for appeal to the district court containing the complaint, judgment, notice of appeal and praecipe, order fixing the amount of the appeal bond, and the appeal bond. The county judge thereupon fixed the amount of an appeal bond at $500 which the defendant provided. The bond given to and accepted by the county judge covered all three offenses to which the defendant had pleaded guilty and on which he had been sentenced. The written bond was executed in the form provided by section 29-611, R.R.S.1943, and met all the conditions therein specified. See, Benson v. State, 158 Neb. 168, 62 N.W.2d 522, 42 A.L.R.2d 991; McDonald v. State, 161 Neb. 118, 72 N.W.2d 521. This was essential. See, Killian v. State, 114 Neb. 4, 205 N.W. 575; Thomsen v. State, 82 Neb. 634, 118 N.W. 330. As stated in Killian v. State, supra [114 Neb. 4, 205 N.W. 577]:
The county judge accepted and approved the bond given, which is all the statute requires. Thereupon, pursuant to the praecipe, the county judge prepared the transcript requested in both cases Nos. 542 and 543, being respectively cases Nos. 2193 and 2194 in the district court.
In case No. 543, which is the one with which we are here concerned, the county judge certified that he had compared the copies therein contained with the original thereof in this case, which remained in his court, and that they were correct copies thereof and a correct transcript of the whole of said original record. This was conclusive in the district court that the county judge had accepted the notice of appeal and bond in case No. 543, and approved the latter. We have always adhered to the rule that in appellate proceedings the record of the trial court, when properly prepared and verified, imports absolute verity. See, Worley v. Shong, 35 Neb. 311, 53 N.W. 72; Sullivan v. Benedict, 36 Neb. 409, 54 N.W. 676, 677; McDonald v. State, supra. As stated in Sullivan v. Benedict, supra: 'The record of the county court, as embodied in a duly authenticated transcript, imports absolute verity and cannot be contradicted in the appellate court by extrinsic evidence.' And, as held in In re Estate of Bednar, 151 Neb. 242, 37 N.W.2d 195, and quoted with approval in McDonald v. State, supra [161 Neb. 118, 72 N.W.2d 523]:
Section 29-611, R.R.S.1943, which provides the procedure whereby a defendant shall have the right of appeal to the district court of the county in such cases as here, which Article V, section 17, of our Constitution guarantees, requires, when a bond is given and approved, that: 'The magistrate from whose judgment the appeal is taken shall forthwith make return of the proceedings had before him, and shall certify the complaint and the warrant together with all such recognizances to the district court, * * *.' (Emphasis ours.) It will be noted that the duty to prepare and file the transcript is with the county judge after he has been notified of the intent to appeal and proper bond, conditioned as provided by this statute, has been given to, accepted, and approved by him. That the transcript should...
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