Bazzo v. Wallace

CourtSupreme Court of Nebraska
Writing for the CourtMAXWELL
Citation20 N.W. 315,16 Neb. 290
Decision Date20 August 1884
PartiesBAZZO v. WALLACE.

16 Neb. 290
20 N.W. 315

BAZZO
v.
WALLACE.

Supreme Court of Nebraska.

Filed August 20, 1884.


Motion to dismiss.

[20 N.W. 315]

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

[20 N.W. 316]

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...

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11 practice notes
  • Honeycutt v. Nyquist, Petersen & Co.
    • United States
    • United States State Supreme Court of Wyoming
    • November 3, 1903
    ...Hiatt, 4 G. Greene, 439; Clark v. Blackwell, id., 441; Ausbach v. Ferguson, 71 Ia. 144; Baisley v. Baisley, 113 Mo. 544; Bazzo v. Wallace, 16 Neb. 290; Stevens v. Ins. Co., 29 id., 187; Thompson v. Pfeiffer (Kan.), 71 P. 828; Crowell v. Galloway, 3 Neb., 215; Aultman v. Steiman, 8 id., 109;......
  • Steven v. Neb. & Iowa Ins. Co.
    • United States
    • Supreme Court of Nebraska
    • March 19, 1890
    ...filed with the clerk of that court within the statutory time. Goodrich v. City of Omaha, 11 Neb. 204, 7 N. W. Rep. 442;Bazzo v. Wallace, 16 Neb. 290, 20 N. W. Rep. 315. It follows that the district court erred in dismissing the appeal. The judgment of the district court is reversed, the app......
  • Mueller v. Heidemeyer
    • United States
    • Court of Appeals of Texas
    • February 20, 1908
    ...was filed, and the question arose as to whether it constituted an appearance. It was held that it had that effect. In Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315, a stipulation agreed to and filed by the parties that the cause of action should be continued to February 20, 1884, was held to ......
  • Omaha Loan & Trust Co. v. Ayer
    • United States
    • Supreme Court of Nebraska
    • January 16, 1894
    ...exception, provided such proceedings be commenced within one year from the date of such order or decree. 4. The case of Bazzo v. Wallace, 20 N. W. 315, 16 Neb. 290, distinguished. Appeal from district court, Douglas county; Wakeley, Judge. Action by the Omaha Loan & Trust Company against J.......
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11 cases
  • Honeycutt v. Nyquist, Petersen & Co.
    • United States
    • United States State Supreme Court of Wyoming
    • November 3, 1903
    ...Hiatt, 4 G. Greene, 439; Clark v. Blackwell, id., 441; Ausbach v. Ferguson, 71 Ia. 144; Baisley v. Baisley, 113 Mo. 544; Bazzo v. Wallace, 16 Neb. 290; Stevens v. Ins. Co., 29 id., 187; Thompson v. Pfeiffer (Kan.), 71 P. 828; Crowell v. Galloway, 3 Neb., 215; Aultman v. Steiman, 8 id., 109;......
  • Steven v. Neb. & Iowa Ins. Co.
    • United States
    • Supreme Court of Nebraska
    • March 19, 1890
    ...filed with the clerk of that court within the statutory time. Goodrich v. City of Omaha, 11 Neb. 204, 7 N. W. Rep. 442;Bazzo v. Wallace, 16 Neb. 290, 20 N. W. Rep. 315. It follows that the district court erred in dismissing the appeal. The judgment of the district court is reversed, the app......
  • Mueller v. Heidemeyer
    • United States
    • Court of Appeals of Texas
    • February 20, 1908
    ...was filed, and the question arose as to whether it constituted an appearance. It was held that it had that effect. In Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315, a stipulation agreed to and filed by the parties that the cause of action should be continued to February 20, 1884, was held to ......
  • Omaha Loan & Trust Co. v. Ayer
    • United States
    • Supreme Court of Nebraska
    • January 16, 1894
    ...exception, provided such proceedings be commenced within one year from the date of such order or decree. 4. The case of Bazzo v. Wallace, 20 N. W. 315, 16 Neb. 290, distinguished. Appeal from district court, Douglas county; Wakeley, Judge. Action by the Omaha Loan & Trust Company against J.......
  • Request a trial to view additional results

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