Barney v. Platte Valley Public Power & Irr. Dist.

• Decision Date: 09 February 1944
• Docket Number: s. 31716,31717.
• Citation: 13 N.W.2d 120,144 Neb. 230
• Parties: BARNEY v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DIST. ROBLES v. SAME.
• Court: Nebraska Supreme Court

13 N.W.2d 120

144 Neb. 230

BARNEY v. PLATTE VALLEY PUBLIC POWER AND IRRIGATION DIST.

ROBLES v. SAME.

Nos. 31716, 31717.

Supreme Court of Nebraska

February 9, 1944

Syllabus by the Court.

1. The supreme court has no power to exercise appellate jurisdiction in proceedings to review the judgment of a district court in civil cases unless the appellant shall have filed a notice of appeal and deposited the docket fee in the office of the clerk of the district court within the time fixed and as provided in section 20-1912 Comp.St.Supp.1941.

2. Appellate jurisdiction in such a case cannot be conferred upon a court by any action of the parties.

CHAPPELL and YEAGER, JJ., dissenting.

Beeler Crosby & Baskins, of North Platte, for appellant.

Dryden & Jensen, of Kearney, for appellees.

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

SIMMONS Chief Justice.

These cases come on for consideration on a motion to dismiss for failure of the appellant to deposit the docket fee with the clerk of the district court as provided by section 20-1912, Comp.St.Supp.1941. We sustain the motion to dismiss.

The actions are for damage to crops and lands from waters discharged upon plaintiffs' land. Plaintiffs were successful in the trial court and defendant appeals.

On August 10, 1943, separate transcripts were filed in this court in each of the above entitled causes. The transcript shows that motions for rehearing were overruled in the trial court on May 14, 1943.

Copies of the notice of appeal, showing that it was filed with the clerk of the district court on August 9, 1943, were received by the clerk of this court from the clerk of the district court on august 10, 1943. On the same date there was paid to the clerk of this court, by the defendant, a docket fee of $20 in each case.

Thereafter the cases were docketed here.

August 19, 1943, there was filed a motion for consolidation supported by a stipulation providing that the actions should be consolidated in this court for briefs and argument. Pursuant to that stipulation this court, on September 18, 1943, entered an order of consolidation for briefing and argument. Also on August 19, 1943, there was filed a stipulation agreeing that defendant's brief day should be continued until October 10, 1943. Pursuant thereto, this court on September 18, 1943, entered an order extending the defendant's brief day to that date.

October 6, 1943, defendant, as appellant, filed its "consolidated brief" herein and proof of service made showing service upon attorneys for plaintiffs as appellees.

November 3, 1943, there was filed a stipulation providing that plaintiffs', as appellees, brief day should be extended until December 6, 1943. Pursuant thereto, this court on November 3, 1943, entered an order extending the plaintiffs' brief day to that date.

November 13, 1943, there was filed by the plaintiffs, as appellees, a motion to dismiss on the ground that the defendant, as appellant, had not deposited the docket fee with the clerk of the district court and that therefore this court had "no jurisdiction over said appeal."

December 3, 1943, there was filed a stipulation showing that a motion to dismiss was pending and stipulating that appellees' brief day may be continued until December 21, 1943. This court on December 3, 1943, entered an order extending the plaintiffs' brief day to that date. The motion to dismiss herein was submitted by oral argument on December 6, 1943.

December 16, 1943, a further stipulation was filed extending appellees' brief day to January 21, 1944. This court on December 21, 1943, entered an order extending the plaintiffs' brief day to that date.

The precise question therefore presented is this: where under the circumstances set out in this opinion, an appellant, in appealing to this court, fails to deposit the docket fee with the clerk of the district court, does pay it to the clerk of this court, and thereafter the appellee treats the appeal as perfected, enters appearances in this court, and participates in the progress of the appeal proceedings here, does this court then have jurisdiction of the cause?

The constitutional provision regarding the jurisdiction of this court is "The supreme court shall have jurisdiction in *** civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law." Const. Art. 5, sec. 2.

Section 20-1911, Comp.St.1929 provides as follows: "A judgment rendered or final order made by the district court may be reversed, vacated or modified by the supreme court, for errors appearing on the record." The Constitution also provides "The right to be heard in all civil cases in the court of last resort, by appeal, error, or otherwise, shall not be denied." Const. Art. 1, sec. 24. Under the long established construction of this section it has been held that it "does not prohibit the legislature from prescribing reasonable rules and regulations for the review of a cause by appeal, ***." See In re Estate of Mathews, 125 Neb. 737, 252 N.W. 210, 214. The clearly stated and easily followed requirements of the legislature as set out in said section 20-1912, supra, are reasonable.

Previous to the enactment of chapter 32, Laws 1941, p. 140 (now sec. 20-1912, Comp.St.Supp.1941) the statute provided "The proceedings to obtain a reversal, vacation or modification of judgment and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the criminal code, shall be by filing in the supreme court a transcript certified by the clerk of the district court, containing the judgment, decree or final order sought to be reversed, vacated or modified, within three months from the rendition of such judgment or decree or the making of such final order or within three months from the overruling of a motion for a new trial in said cause; the filing of such transcript shall confer jurisdiction in such cause upon the supreme court."

The above provision of the statute was amended in the 1941 act so as to provide that "The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the criminal code, shall be by filing in the office of the clerk of the district court in which such judgment, decree or final order was rendered, within three months after the rendition of such judgment or decree, or the making of such final order, or within three months from the overruling of a motion for a new trial in said cause, a notice of intention to prosecute such appeal signed by the appellant or appellants or his or their attorney of record, and by depositing with the clerk of the district court the docket fee required by law in appeals to the supreme court. An appeal shall be deemed perfected, and the supreme court shall have jurisdiction of the cause, when such notice of appeal shall have been filed, and such docket fee deposited, in the office of the clerk of the district court, and after being so perfected no appeal shall be dismissed without notice, and no step other than the filing of such notice of appeal and the depositing of such docket fee shall be deemed jurisdictional. The clerk of the district court shall forthwith forward such docket fee, and a certified copy of such notice of appeal, to the clerk of the supreme court, whereupon the clerk of the supreme court shall forthwith docket such appeal. Within the same period of three months the appellant or appellants shall file in the supreme court a transcript certified by the clerk of the district court, containing the judgment, decree or final order sought to be reversed, vacated or modified. Neither the form nor substance of such transcript shall affect the jurisdiction of the supreme court."

It will thus be noted that under the act as it existed prior to 1941 the filing of the transcript within the time set out was necessary to confer jurisdiction of the cause upon this court; and that under the provisions of the 1941 act the appeal shall be "deemed perfected, and the supreme court shall have jurisdiction of the cause, when such notice of appeal shall have been filed, and such docket fee deposited, in the office of the clerk of the district court, ***."

These "constitute the only jurisdictional steps to get a case into the supreme court." Glissmann v. Bauermeister, 141 Neb. 288, 3 N.W.2d 555, 556.

Under the provisions of the act, prior to the 1941 amendment, it had been consistently held that this court did not acquire jurisdiction of a cause unless the transcript was filed here within the three month period. This holding is based upon the principle that this court, "*** except in those cases wherein original jurisdiction is specially conferred upon it by section 2, art. 5 of the Constitution, exercises appellate jurisdiction only, and such appellate jurisdiction can only be conferred in the manner provided by statute." Larson v. Wegner, 120 Neb. 449, 233 N.W. 253, 254. In the earlier case of State v. Amsberry, 104 Neb. 273, 177 N.W. 179, 178 N.W. 822, 824, this court on motion for rehearing used language similar to the above and further said that appellate jurisdiction "*** cannot be conferred by stipulation *** of the parties, nor does the filing of briefs constitute a waiver. Nothing but the filing of a transcript in this court within the time prescribed can vest this court with jurisdiction of the subject-matter. No stipulation, consent, or waiver of the parties can take the place of the filing of the transcript." Applying the same reasoning to the...