Baldwin v. Foss

• Decision Date: 02 August 1883
• Citation: Baldwin v. Foss, 14 Neb. 455, 16 N.W. 480 (Neb. 1883)
• Parties: CHARLES A. BALDWIN, PLAINTIFF IN ERROR, v. OSCAR L. FOSS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 480

14 Neb. 455

CHARLES A. BALDWIN, PLAINTIFF IN ERROR, v. OSCAR L. FOSS, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 2, 1883

MOTION to dismiss case brought up on error from Douglas county.

MOTION DENIED.

G. W Shields, for the motion.

OPINION

LAKE CH. J.

The defendant in error moves the dismissal of this case assigning therefor five several reasons, the first and principal one of which is, that the order of the district court brought here for review was not "final."

Referring to the record, we find that the order in question was made on motion of this defendant in error in a case wherein he was plaintiff and one Thomas Murry defendant, and several months after said case had been finally dismissed at his costs. There had also been a motion by him for a vacation of the judgment of dismissal, which was denied. The object of the former motion was to require Baldwin, then the attorney of Foss, to pay into court, for his use, certain money claimed to have been collected by him from Murry in settlement of that suit.

The order complained of was, "that the said C. A. Baldwin pay into this court by the first day of the next June term for the use of said plaintiff, the sum of $ 30.50, and in default that execution issue therefor." It will be seen that it directs the payment, unconditionally, of a definite sum of money within a specified time, on pain of its enforcement by a general execution. It completely fixes the rights of the parties to it, leaving nothing whatever for the court to do further in that regard. Freeman on Judgments, § 12. It was an order affecting a substantial right made in a special proceeding. Code of civil procedure, § 581. It was certainly a "final order," as we understand that term.

The second reason is, that there is no bill of exceptions;...