Bazzo v. Wallace

CourtSupreme Court of Nebraska
Writing for the CourtMAXWELL, J.
Citation20 N.W. 315,16 Neb. 290
PartiesCHARLES E. BAZZO ET AL., PLAINTIFFS IN ERROR, v. JOHN WALLACE, DEFENDANT IN ERROR
Decision Date20 August 1884

20 N.W. 315

16 Neb. 290

CHARLES E. BAZZO ET AL., PLAINTIFFS IN ERROR,
v.

JOHN WALLACE, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 20, 1884


MOTION to dismiss.

MOTION OVERRULED.

Howard B. Smith, for the motion.

George W. Doane, W. J. Connell, and E. W. Simeral, contra.

OPINION

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, [16 Neb. 291] 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 Feby. 20th, 1884. It is further stipulated that the appellant 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 20th 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. 564, 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, 16 N.W. 472, where the transcript was filed after the expiration of a year, it was held that proceedings in error must be commenced in the supreme court in one year from the time the...

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2 practice notes
  • Bazzo v. Wallace
    • United States
    • Supreme Court of Nebraska
    • August 20, 1884
    ...that in all matters of probate jurisdiction an appeal will lie to the district court. This certainly includes the probate of a will. [20 N.W. 315] 3. Sec. 2 of the act above referred to, provides that an appeal shall be taken within thirty days after the decision complained of is made, and ......
  • Vindquest v. Perky
    • United States
    • Supreme Court of Nebraska
    • August 20, 1884
    ...the court that upon the payment by the plaintiff to the defendant, or into court for the defendant, the sum of four thousand seven hundred [16 Neb. 290] and thirty-seven and 3-100 dollars the defendant shall convey," etc. There can be no doubt that if there is error in the above it is error......
2 cases
  • Bazzo v. Wallace
    • United States
    • Supreme Court of Nebraska
    • August 20, 1884
    ...that in all matters of probate jurisdiction an appeal will lie to the district court. This certainly includes the probate of a will. [20 N.W. 315] 3. Sec. 2 of the act above referred to, provides that an appeal shall be taken within thirty days after the decision complained of is made, and ......
  • Vindquest v. Perky
    • United States
    • Supreme Court of Nebraska
    • August 20, 1884
    ...the court that upon the payment by the plaintiff to the defendant, or into court for the defendant, the sum of four thousand seven hundred [16 Neb. 290] and thirty-seven and 3-100 dollars the defendant shall convey," etc. There can be no doubt that if there is error in the above it is ......

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