City of Lincoln v. First Nat. Bank of Lincoln

CourtSupreme Court of Nebraska
Writing for the CourtHOLCOMB
Citation64 Neb. 725,90 N.W. 874
PartiesCITY OF LINCOLN v. FIRST NAT. BANK OF LINCOLN.
Decision Date21 May 1902

64 Neb. 725
90 N.W. 874

CITY OF LINCOLN
v.
FIRST NAT.
BANK OF LINCOLN.

Supreme Court of Nebraska.

May 21, 1902.



Syllabus by the Court.

[90 N.W. 874]

In a law action, which can be reviewed only by proceedings in error, where a motion for a new trial on the ground of alleged errors occurring during the trial is seasonably presented, and not ruled upon until after rendition of the judgment in the cause, the time in which error proceedings may be begun will not begin to run until a ruling is made by the trial court on the motion for a new trial.


Error to district court, Lancaster county; Frost, Judge.

Action by the city of Lincoln against the First National Bank of Lincoln. Judgment for defendant, and plaintiff brings error. Motion to dismiss overruled.

[90 N.W. 875]

E. C. Strode and D. J. Flaherty, for plaintiff in error.

W. E. Blake, J. W. Deweese, and Frank S. Bishop, for defendant in error.


HOLCOMB, J.

The defendant in error presents a motion to dismiss the error proceedings in the present action instituted in this court because not commenced within six months from the date of the rendition of the judgment complained of, as is provided shall be done by section 592 of the Code of Civil Procedure. The action in the lower court was one at law, and tried to the court without a jury. The findings by the court and the judgment resting thereon were made and rendered on July 15, 1901, and immediately extended on the journal of the court. On the following day, and within the time required by statute, a motion for a new trial was duly filed, assigning numerous errors alleged to have occurred during the trial of the cause as grounds for sustaining the motion. This motion appears not to have been ruled upon by the trial court at the term at which filed, which adjourned sine die July 20th. On the date of the final adjournment it was ordered that all pending motions not otherwise disposed of be continued until the next term. On October 8th the motion for a new trial came up for consideration, and was by the trial court overruled. The error proceedings were begun within six months from the date of overruling the motion for a new trial; but more than six months had elapsed from the actual rendition of the judgment which it is sought to have reversed. The question, therefore, which is presented, is whether, when the motion for a new trial is presented after judgment is rendered,--which is usually the case when a law action is tried to the court without a jury,--the limitation of time within the meaning of the statute regulating the commencement of error proceedings to obtain a reversal of the judgment complained of will date from the time of the actual rendition of the judgment, or from the time of the court's ruling on the motion for a new trial, filed subsequent to the rendition of such judgment, but at the same term of court, and in due season, under the provisions of the statute. In considering the question it is well to keep in mind that the record as presented in the case at bar is different from what would be the case where the motion for a new trial is presented after a verdict of the jury or finding of fact by the court, and before rendition of the judgment; the judgment in such cases being reserved until the motion for a new trial is disposed of. When the ruling on the motion for a new trial precedes the rendition of the final judgment, no difficult question is presented as to when the time allowed for the commencement of error proceedings begins to run; the ruling on the motion for a new trial in such case being only an interlocutory order, and not final in such a sense as to constitute a final judgment from which error proceedings would lie. Smith v. Johnson, 37 Neb. 675, 56 N. W. 323. In the case at bar the court at the time of the rendition of the judgment gave no opportunity to either party to present to it any legal reason they might have why a new trial should be granted, and thus lay the foundation for a reviewing court to pass upon the regularity and correctness of the proceedings had at the trial. These matters where judgment is rendered as in the case at bar under our practice must, in the nature of things, be presented subsequent to the time of the rendition of the judgment, and, if presented in due season, there can be no doubt of the authority of the court to retain jurisdiction and control of the cause for the purpose of ruling on such motion, and it may, we think, be said that the judgment is rendered in contemplation of further action before its final disposition in the event such a motion be filed. We speak only with relation to the statutory motion for a new trial, which is required to be filed at the same term the finding, verdict, judgment, or order is entered or returned, and within three days therefrom. As to all other statutory grounds for granting new trials, we think they must be regarded as collateral in their nature, and as having no...

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3 practice notes
  • Kline v. Murray, No. 6111.
    • United States
    • Montana United States State Supreme Court of Montana
    • July 7, 1927
    ...Dakota, Michigan, Ohio, Oklahoma, Oregon, Kansas, Wyoming, and Texas. In the Nebraska case of City of Lincoln v. First National Bank, 64 Neb. 725, 90 N. W. 874, it is said that “numerically the courts of the different states are almost equally divided,” adding, “of course, in many of the ju......
  • Bryan v. Inspiration Consolidated Copper Co., Civil 2165
    • United States
    • Supreme Court of Arizona
    • January 3, 1925
    ...six months from the date of overruling the motion for a new trial is taken in time." In the City of Lincoln v. First Nat. Bank of Lincoln, 64 Neb. 725, 90 N.W. 874, the Supreme Court of that state said: "We conclude, therefore, that in a trial of a law action, where judgment is rendered bef......
  • Iler v. Ross
    • United States
    • Supreme Court of Nebraska
    • May 21, 1902
    ...work for one man, and it is admitted in the argument that the effect of the ordinance would be to prevent the owner himself from removing [90 N.W. 874]the refuse from his own premises. This is clearly an interference with a natural right, and, while this may be allowable on the ground of pu......
3 cases
  • Kline v. Murray, No. 6111.
    • United States
    • Montana United States State Supreme Court of Montana
    • July 7, 1927
    ...Dakota, Michigan, Ohio, Oklahoma, Oregon, Kansas, Wyoming, and Texas. In the Nebraska case of City of Lincoln v. First National Bank, 64 Neb. 725, 90 N. W. 874, it is said that “numerically the courts of the different states are almost equally divided,” adding, “of course, in many of the ju......
  • Bryan v. Inspiration Consolidated Copper Co., Civil 2165
    • United States
    • Supreme Court of Arizona
    • January 3, 1925
    ...six months from the date of overruling the motion for a new trial is taken in time." In the City of Lincoln v. First Nat. Bank of Lincoln, 64 Neb. 725, 90 N.W. 874, the Supreme Court of that state said: "We conclude, therefore, that in a trial of a law action, where judgment is rendered bef......
  • Iler v. Ross
    • United States
    • Supreme Court of Nebraska
    • May 21, 1902
    ...work for one man, and it is admitted in the argument that the effect of the ordinance would be to prevent the owner himself from removing [90 N.W. 874]the refuse from his own premises. This is clearly an interference with a natural right, and, while this may be allowable on the ground of pu......

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