City of Lincoln v. First National Bank of Lincoln

• Decision Date: 21 May 1902
• Docket Number: 12,603
• Citation: 90 N.W. 874,64 Neb. 725
• Parties: CITY OF LINCOLN v. FIRST NATIONAL BANK OF LINCOLN
• Court: Nebraska Supreme Court

90 N.W. 874

64 Neb. 725

CITY OF LINCOLN v. FIRST NATIONAL BANK OF LINCOLN

No. 12,603

Supreme Court of Nebraska

May 21, 1902

ERROR from the district court for Lancaster county. Tried below before FROST, J. Heard on motion to dismiss. Motion overruled.

MOTION OVERRULED.

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

W. E Blake, J. W. Deweese and Frank E. Bishop, contra.

OPINION

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 was 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 20. 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 8 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 the 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 subsequently 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 effect on the time within which error proceedings to secure a review of the main action are to be begun. It is also clear that, before this court is authorized to review alleged errors committed by the trial court, its attention must, with but few exceptions, first be challenged to such alleged errors by motion for a new trial. We have also held that, as to those alleged errors which are required to be assigned in a motion for a new trial, they are not reviewable in error proceedings, unless it is alleged in the petition in error and shown by the record that the court erred in overruling the motion for a new trial. James v. Higginbotham, 60 Neb. 203, 82 N.W. 625. The prior utterances of the court on the subject have not been altogether consistent, but upon a careful examination of all the cases in this court having a bearing on the question we arrive at the conclusion that the case of Sharp v. Brown, 34 Neb. 406, 51 N.W. 1030, which overrules some prior decisions, and which has since been adhered to, announces a sound rule of practice, which is supported by both reason and authority and is warranted by the language of the statute under consideration. We think such a construction is better calculated to preserve the rights of litigants to have their cases reviewed on error in the court of last resort, than is the one we are asked to adopt by sustaining the motion to dismiss the error proceedings in the case at bar because not commenced in time. In 2 Cyclopedia of Law and Procedure, 793, under the title "Appeal and Error," it is said: "In some jurisdictions, if the motion or a petition for rehearing or new trial is made or presented in season and entertained by the court, the time limited for an appeal or a writ of error does not begin to run until such motion is disposed of, the judgment or decree not taking final effect for the purposes of the appeal or writ of error until then; while in others the time is not extended by making such application." The examination of the numerous authorities cited discloses that numerically the courts of the different states are almost equally divided, with the United States supreme court holding to the rule that the time does not begin to run until the motion for a new trial or rehearing has been ruled upon. Of course, in many of the jurisdictions referred to the language of the statute has much to do with the conclusions reached regarding the matter. In Sharp v. Brown, supra, it is held: "Proceedings in error in the supreme court may be commenced within one year from the time the motion for a new trial is overruled." This language, however, must be understood in the light of the facts in that case as disclosed by the record, which shows a trial to the court, the rendition of the judgment, and thereafter the presentation of the motion for a new trial, which was not ruled upon for some time yet later. In the opinion it is said by MAXWELL, C. J.: "In Hollenbeck v. Tarkington, 14 Neb. 430, 16 N.W. 472, it was held that the transcript must be filed within one year from the date of the judgment, without regard to the time when the motion for a new trial was overruled, and this ruling is now insisted upon here. In that case this court...