Bazzo v. Wallace

Citation20 N.W. 315,16 Neb. 290
PartiesBAZZO v. WALLACE.
Decision Date20 August 1884
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE

Motion to dismiss.George W. Doane and E. W. Simeral, for the motion.

Howard B. Smith, contra.

MAXWELL, J.

In February, 1883, the plaintiffs appealed to the district court from an order of the county court of Douglas county admitting the will of one Annie Wallace, deceased, to probate. The district court dismissed the appeal, from which order the plaintiffs appealed to this court. In January, 1884, the attorney of the parties entered into a stipulation as follows, (omitting the title and signatures:) “It is hereby stipulated and agreed, by and between the parties in the above-entitled cause, that said cause be continued until February 20, 1884. It is further stipulated that the appellants therein shall have the privilege of continuing said cause upon said day until the July term of said court if they so desire.” The words “until February 20, 1884 were stricken out before it was signed. The stipulation is in the handwriting of the defendant's attorney, and, as he states, was drawn up because he was unable to attend court at that time. On the day preceding that on which the stipulation was filed, the defendant's attorney filed a motion in this court as follows, (omitting the title and signature:) “Now comes said John Wallace, by his attorney, and enters his special appearance herein for this purpose and for no other, and moves the court to dismiss the appeal herein for the reason that said action is not an action in equity, and therefore not appealable.” At the time the stipulation was entered into he made no mention of the motion, nor do the plaintiffs appear to have been aware of it until after the expiration of a year from the time the judgment was rendered. The attorney for the defendant now insists upon his motion.

In Stewart v. Carter, 4 Neb. 567, where an action at law was brought to this court on appeal, the appellant was permitted to file a petition in error, the transcript being on file and the application being made within one year from the date of the rendition of the judgment. In Hollenbeck v. Tarkington, 14 Neb. 430, S. C. 16 N. W. REP. 472, it was held that proceedings in error must be commenced in the supreme court in one year from the time the judgment was rendered; and in Baker v. Sloss, where the summons in error served on the defendant was not issued until after the expiration of a year from the date of the judgment, the...

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