Bammer v. Jensen
| Decision Date | 04 April 1986 |
| Docket Number | No. 84-651,84-651 |
| Parties | Rollin C. BAMMER, Appellee, v. Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Administrative Law: Implied Consent: Jurisdiction: Appeal Bonds. The execution, approval, and filing of the bond required by Neb.Rev.Stat. § 60-420 (Reissue 1984) are necessary steps to the acquisition of subject matter jurisdiction of an implied consent proceeding by the district court.
2. Administrative Law: Implied Consent: Jurisdiction: Appeal Bonds: Time. Filing in the district court does not satisfy the requirement of Neb.Rev.Stat. § 60-420 (Reissue 1984) that the bond be filed in the office of the director of the Department of Motor Vehicles within 20 days of the order concerning which complaint is made.
Robert M. Spire, Atty. Gen., and Jill Gradwohl, Lincoln, for appellant.
Mark S. Trustin of Stehlik, Smith, Trustin, Schweer & Ruder, Omaha, for appellee.
Holly Jensen, director of the Department of Motor Vehicles, appeals the district court's reversal of her order revoking Rollin C. Bammer's operator's license pursuant to the implied consent statutes, Neb.Rev.Stat. §§ 39-669.08, 39-669.18, and 60-420 (Reissue 1984). Among the director's assignments of error is the claim that the district court, and consequently this court, lacks jurisdiction over the subject matter of the proceeding. We agree and, consequently, without considering her other assignment of error, reverse the decision of the district court and dismiss this appeal.
On January 27, 1984, the director received a letter dated the previous day from Bammer's attorney advising that a petition appealing her order had been filed with the district court for Sarpy County and that a bond had been obtained which had been "sent ... for approval to the state auditor." The letter went on to say that a copy of that bond was enclosed. The director's transcript, prepared on January 31, 1984, contains a copy of an unapproved bond bearing facsimilies of signatures purporting to be those of Bammer and of an attorney-in-fact for the corporate surety.
The original bond, showing it to be in connection with a proceeding before the director, and which was approved by the state auditor on January 27, 1984, was filed with the clerk of the district court on Monday, February 6, 1984. The copy of the bond sent to the director is a true copy of the original as filed with the district court, except that the former lacks a facsimile of the auditor's signature. Subsequently, on May 2, 1984, the original of the bond was sent to the director and a true copy thereof substituted in the district court's file.
The relevant hearing before the director and the trial before the district court took place prior to July 10, 1984, when the present version of § 60-420 (Reissue 1984) became effective. However, the amendments made by 1984 Neb.Laws, L.B. 697, do not concern us, for there was no change in the relevant portion of § 60-420, which reads:
The ruling, decision, or order of the director in refusing to issue or reinstate such license or in suspending, canceling, or revoking the same shall be as final and binding as the final order or judgment of a court of general jurisdiction. The applicant, licensee, or appellant shall, within twenty days from the date of the final order complained of, execute a bond for costs to the State of Nebraska in the sum of two hundred dollars with sufficient surety to be approved by the Auditor of Public Accounts. The bond shall be filed in the office of the director.
In essence, the director claims that the copy of the bond filed with her on January 27, 1984, is a nullity because it was not approved by the auditor and that the bond filed with the district court for Sarpy County on February 6, 1984, was a nullity because it was not filed with her until after the 20 days allotted by § 60-420.
Bammer argues that § 60-420 requires only that the bond be executed and approved within 20 days of the director's order, not that it be filed within those 20 days or any other fixed period. In support of that position he points out the requirement that the bond be filed in the office of the director is contained in a separate sentence from that which concerns itself with the execution and approval of the bond within 20 days of the order about which complaint is made. The argument is an effort to create an ambiguity where none exists. Whether the execution, approval, and filing requirements be contained in one, two, or three sentences in no manner changes the sense of the statute that a bond in fact be executed, approved, and filed in the director's office within the time specified. Were Bammer's argument accepted, a bond, once executed and approved, would never have to be filed. Such a holding would, in effect, defeat the bond requirement.
Moreover, we have previously stated that the filing of the bond required by the foregoing statute is a necessary step to the acquisition of subject matter jurisdiction of an implied consent proceeding by the district court. Lydick v. Johns, 185 Neb. 717, 178 N.W.2d 581 (1970); Buettner v. Sullivan, 191 Neb. 592, 216 N.W.2d 872 (1974).
The most recent case bearing on the issue, decided after the district court made its decision in this case, is Black v. State, 218 Neb. 572, 358 N.W.2d 181 (1984). Therein, a $200 check drawn on the trust account of appellant's attorney was sent to the office of the director. The director sent a letter stating this deposit was not sufficient as a bond under the version of § 60-420 then in effect. A proper bond was then sent to the director; however, it was not received by the director's office until 21 days after the order of revocation had been issued. This court stated the right of appeal was clearly statutory, that the statute's requirements were mandatory, and that it was the appellant's duty to see that the bond was delivered to the proper official within the time provided by law. The district court was held to have properly dismissed the...
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Wood v. Tesch
...is time barred. If the lower court lacked jurisdiction of the subject matter, this court lacks jurisdiction as well. Bammer v. Jensen, 222 Neb. 400, 384 N.W.2d 263 (1986); Riedy v. Riedy, 222 Neb. 310, 383 N.W.2d 742 (1986). Consequently, we are required to consider Tesch's jurisdictional c......
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Ernest v. Jensen
...day, which is 30 days after the service of summons. In Black v. State, 218 Neb. 572, 358 N.W.2d 181 (1984), and Bammer v. Jensen, 222 Neb. 400, 384 N.W.2d 263 (1986), we held the filing of a bond in the form and manner set out in § 60-420 was necessary to give the district court, and this c......