Anderson v. State

Decision Date22 February 1957
Docket NumberNo. 34118,34118
Citation163 Neb. 826,81 N.W.2d 219
PartiesLarry ANDERSON, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
CourtNebraska 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.

WENKE, Justice.

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]: 'Section 1, c. 113, Laws 1923, is mandatory in its terms and is but an amendment of section 9999, Compt.St.1922, [now section 29-611, R.R.S.1943], which has been frequently held by this court to be mandatory. In construing section 9999, this court has held that a defendant in a misdemeanor case, desiring to appeal from an inferior court to the district court, must substantially comply with the statute in order to give the latter court jurisdiction.'

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]: 'Appellee introduced evidence in the district court to the effect that the date of April 20, 1948, as shown by the transcript, was not the correct date the order was made by the county court, but that it was made at a later date. Any evidence of this character was improper. It is a fundamental rule applicable to all appellate proceedings that the record of a court where a matter originated or was tried when properly authenticated imports absolute verity and cannot be contradicted, varied, or changed by oral testimony or any extrinsic evidence. An issue of fact cannot be made in this court as to any matter properly shown by the records of the court where the case originated or was tried from whence the case comes to this court for review.'

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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7 cases
  • State v. Kays, A–11–504
    • United States
    • Court of Appeals of Nebraska
    • 15 octobre 2013
    ...155 N.W.2d 349 (1967). The trial court record cannot be contradicted in an appellate court by extrinsic evidence. See Anderson v. State, 163 Neb. 826, 81 N.W.2d 219 (1957). An issue of fact cannot be made by an appellate court as to any matter properly shown by the records of the trial cour......
  • State v. Morford, 39358
    • United States
    • Supreme Court of Nebraska
    • 10 octobre 1974
    ...it is not a sufficient record. Ordinarily the duly authenticated record of a county court imports absolute verity. See Anderson v. State, 163 Neb. 826, 81 N.W.2d 219. In McGhee v. Sigler, 328 F.Supp. 538 (D.Neb., 1971), affirmed per curiam, McGhee v. Wolff, 455 F.2d 987 (8th Cir., 1972), ce......
  • School Dist. of McCook, Red Willow County v. City of McCook, 34077
    • United States
    • Supreme Court of Nebraska
    • 22 février 1957
    ...... The defendant is a city of the first class duly organized and existing under the laws of this state and will hereafter be referred to as the city. On January 13, 1947, the city first adopted a ......
  • State v. Benson, 41426
    • United States
    • Supreme Court of Nebraska
    • 7 décembre 1977
    ...to the right of appeal where the appeal is taken within the time and in the manner and form required by the statute. In Anderson v. State, 163 Neb. 826, 81 N.W.2d 219, in commenting on section 29-611, R.R.S.1943, this court said: "It will be noted that the duty to prepare and file the trans......
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