Buettner v. Sullivan, 39239

• Decision Date: 04 April 1974
• Docket Number: No. 39239,39239
• Citation: 191 Neb. 592,216 N.W.2d 872
• Parties: Henry J. BUETTNER, Appellant, v. John L. SULLIVAN, Director, Department of Motor Vehicles, State of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 872

216 N.W.2d 872

191 Neb. 592

Henry J. BUETTNER, Appellant, v. John L. SULLIVAN, Director, Department of Motor Vehicles, State of Nebraska, et al., Appellees.

No. 39239.

Supreme Court of Nebraska.

April 4, 1974.

Syllabus by the Court

Any person appealing an order of the Director of the Department of Motor Vehicles must execute and file the required bond within 20 days of the date of the final order complained of, and such filing is a jurisdictional requirement and a condition precedent to the initiation of the appellate process.

Oliverius & Dugan, Albion, for appellant.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and HASTINGS, District Judge.

HASTINGS, District Judge.

Plaintiff appealed to the District Court from proceedings had before the Department of Motor Vehicles, State of Nebraska, relating to the point system as set out in sections 39--794 to 39--796, R.S.Supp., 1972, and section 39--7,129, R.R.S.1943. The trial court sustained defendants' motion to dismiss the appeal for the reason that no bond was filed within 20 days of the order of revocation entered on January 29, 1973, by the defendant John L. Sullivan, Director of said Department of Motor Vehicles, and plaintiff has appealed to this court.

On January 22, 1973, plaintiff paid a fine of $20 and costs for a speeding violation to which he had entered a plea of guilty the previous June in the justice of the peace court of the City of Columbus, following which an abstract of conviction report was furnished to the Department of Motor Vehicles. The plaintiff now having acquired 12 or more points in a 2-year period, under the requirements of 39--7,129, R.R.S.1943, the defendant Sullivan, by order dated January 29, 1973, revoked his driving privileges for 1 year. Upon receipt of this order of revocation, plaintiff went to the former justice of the peace, now an associate county judge, who then issued an abstract of conviction report covering the same offense, but which now provided for 90 days probation instead of the original fine which had been paid. This latter abstract of conviction report was delivered to the Department of Motor Vehicles which prompted a letter from the defendant W. C. Peterson, supervisor, financial responsibility and driver records, directed to plaintiff and dated February 1, 1973, which stated in part as follows:

'This letter to (sic) to notify you that your Order of Revocation dated January 29, 1973 for a period of one year (#A23--3319) is in effect.

'The matter of a probation and the amended abstract that you presented to me on Wednesday, January 31st has been viewed as invalid by the Director of our Department after consultation with the State's Court Administrator and the Attorney General's office.'

On February 17, 1973, plaintiff's attorney wrote to the Department of Motor Vehicles in part as follows:

'On January 29, 1973 the Director of the Department of Motor Vehicles revoked the driving privileges of the above mentioned driver. Mr. Buettner has asked this office to represent him in this matter.

'Please be advised that Mr. Buettner desires to appeal the revocation to the District Court of Boone County.'

A proper bond as required by section 60--420, R.R.S.1943, was filed on February 21, 1973. Plaintiff's petition filed in District Court '. . . prays . . . an Order be entered upholding the validity of the 'Abstract for Conviction Report' dated January 31, 1973, and ordering the Director of the Department of Motor Vehicles to cancel and revoke his Order of January 29, 1973 . . ..'

All the foregoing information was gleaned from the transcript as there was no bill of exceptions.

Section 39--7,129, R.R.S.1943, requires the Director of Motor Vehicles to revoke for a 1-year period the driving privileges of any person who shall have accumulated 12 or more points within any 2-year period as reflected by abstracts of conviction for violation of traffic offenses which have been forwarded to him as provided for by sections 39--794 and 39--795, R.S.Supp., 1972. This was the authority under which the defendant Sullivan acted in issuing the order of January 29th.

Section 39--7,130, R.R.S.1943, provides in part as follows: 'Any person, who feels himself aggrieved because of such revocation, may appeal therefrom to the district court of the county wherein such person resides . . . in the manner prescribed in ...