Brotherton v. Brotherton

• Decision Date: 17 November 1881
• Citation: 12 Neb. 72,10 N.W. 543
• Parties: BROTHERTON v. BROTHERTON.
• Court: Nebraska Supreme Court

12 Neb. 72

10 N.W. 543

BROTHERTON

v.BROTHERTON.

Supreme Court of Nebraska.

Filed November 17, 1881.

Appeal from Hamilton county.

A. W. Agee, for defendant.

J. S. Miller, for plaintiff.

MAXWELL, C. J.

This is an appeal by the defendant from a decree granting the plaintiff a divorce. The plaintiff now moves to dismiss the appeal, upon the ground that an appeal cannot be taken from such a decree. Section 24, art. 1, of the constitution provides that “the right to be heard in all civil cases, in the court of last resort, by appeal, error, or otherwise, shall not be denied.” Section 675 of the Code provides “that in actions in equity either party may appeal from the judgment or decree rendered, or final order made, by the district court to the supreme court of the state,” etc. This applies to all actions in equity. The court has no authority to single out any particular class, and declare it excepted from the operation of the law. The evident intention of the legislature was to permit an appeal in all cases in actions in equity. And under the provisions of our constitution, above quoted, every one has a right, in the mode provided by law, to have his case reviewed in the court of last resort. A number of divorce cases have been before this court, and the decree of the court below reversed or affirmed, as seemed consonant with the evidence and law of the case. Oades v. Oades, 6 Neb. 304; Callahan v. Callahan, 7 Neb. 38; Fallon v. Fallon, 10 Neb. 144;Brown v. Brown, Id. 349.

The right to appeal to this court has never, prior to this time, been questioned. A number of cases from Ohio and one from Iowa have been cited by the moving party to show that no appeal will lie in such cases. But, in our view, the cases referred to place a very narrow construction upon the right of appeal. Take the case of Tappan v. Tappan, 6 Ohio St. 65, as an example, and it is very clear that the court placed a forced construction upon that section of the statute granting the right of appeal. The court cited, with approval, a portion of the opinion of Lane, J., in Bascom v. Bascom, 7 Ohio, 125, in which he says: “When a divorce is granted, upon which one of the parties contracts new relations, and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequence of which would be the severance of all new relations. Such anomalous mischief cannot be engrafted on the practice of our courts except by clear and legislative enactment. That, we feel confident, can never take...