Cont'l Bldg. & Loan Ass'n v. Mills

Citation44 Neb. 136,62 N.W. 478
PartiesCONTINENTAL BUILDING & LOAN ASS'N v. MILLS ET AL.
Decision Date05 March 1895
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Where a party free from fault or laches is prevented from having his appeal docketed in the appellate court within the statutory period, solely through the neglect or failure of the proper officer to prepare the transcript of the proceedings, the law will not permit him thereby to be deprived of his appeal.

Appeal from district court, Lancaster county; Hall, Judge.

Action by the Continental Building & Loan Association against Mills and others to foreclose a mortgage. Judgment for defendants, and plaintiff appeals. Motion to dismiss appeal denied.Stevens, Love & Cochran, for appellant.

Mockett, Rainholt & Polk, for appellees.

NORVAL, C. J.

This was an action to foreclose a real-estate mortgage. One of the defenses was that the loan was tainted with the vice of usury. The issues were tried on June 30, 1894, the defense of usury was sustained, and a decree of foreclosure was entered. The plaintiff appeals, the transcript being filed in this court January 16, 1895. The cause is submitted upon the motion of the appellees to dismiss the appeal, for the reason the same was not docketed in this court within six months after the entry of the decree. The statute governing appeals to this court in actions in equity (section 675, Code) provides that “the party appealing shall within six months after the date of the rendition of the judgment or decree, or making the final order, procure from the clerk of the district court and file in the office of the clerk of the supreme court, a certified transcript of the proceedings had in the district court, * * * and have the said cause properly docketed in the supreme court; and on failure thereof the judgment or decree rendered on the final order made in the district court shall stand and be proceeded in as if no appeal had been taken.” It is the established doctrine in this as well as other states that the provision of a statute limiting the time within which appeals must be taken is jurisdictional in its nature, and that the courts cannot ordinarily enlarge or extend the time for perfecting an appeal. Verges v. Roush, 1 Neb. 113; Glore v. Hare, 4 Neb. 131; Gifford v. Railroad Co., 20 Neb. 538, 31 N. W. 11;Tile Works v. Hall, 27 Neb. 874, 44 N. W. 45;Miller v. Camp, 28 Neb. 412, 44 N. W. 486;Fitzgerald v. Brant, 36 Neb. 683, 54 N. W. 992;Trust Co. v. Ayer, 38 Neb. 891, 57 N. W. 567;Moore v. Waterman, 40 Neb. 498, 58 N. W. 940;Record v. Butters, 42 Neb. 786, 60 N. W. 1019.

In the case at bar the evidence introduced on the hearing of the motion conclusively shows that counsel for appellant on the 13th day of December, 1894, requested the clerk of the district court to prepare a transcript of the proceedings in the case, for the purpose of taking an appeal, notifying him at the time that it must be completed so that it could be filed in this court during said month; that the clerk promised to comply with said request, and then directed one of the employés in his office to prepare it, but, owing to the press of other business, he failed and neglected to make the transcript until after the expiration of six months from the date of the decree, although it could have been prepared in less than two days after it was ordered; that counsel for appellant called again upon the clerk of the district court on December 30th, and demanded the transcript, and was informed that the order for the same had been overlooked. It also appears that appellant has not been guilty of any laches, but as soon as the transcript was completed it was filed in this court, and also that the appeal has not been taken for delay.

The proposition presented for our consideration is whether, in the light of the adjudications in this state cited above, a party who, without any fault or negligence on his part, is prevented by the act or neglect of the clerk of the trial court from perfecting an appeal within the time limited by law, can be relieved by the court from the operation of the statute. In other words, must the provision of the law fixing the time for taking appeals be enforced in all cases as it is written, even though the delay is caused alone by the neglect and omission of the clerk of the trial court to make in proper time a transcript of the record? We do not think that the decisions already mentioned are decisive of the question, or if adhered to would deprive the plaintiffs in this case of an appeal. In each of the cases to which reference has been made the appellant was not diligent in prosecuting his appeal, and the delay in docketing the same was not attributable to any action, or want of action, on the part of the appellee, or the trial court, or any officer thereof, but that the failure to file the appeal in the time limited by statute was the appellant's own fault. Doubtless, the court cannot aid a party in fault or relieve him of the consequences of his own negligence. Gifford v. Railroad Co., Miller v. Camp, Tile Works v. Hall, Fitzgerald v. Brant, and Trust Co. v. Ayer expressly recognize the principle that a party will not be deprived of an appeal when it clearly appears that the failure to perfect the same in time is not attributable to his own laches or negligence, but is occasioned by the default of the trial court or its officers. Thus in Tile Works v. Hall, supra, the court, in construing section 1011 of the Code, governing appeals from judgments before justices of the peace, uses this language: “No doubt, where due diligence is shown in demanding a transcript, and from any cause the trial court delays the delivery of the same for so long a time that it will be impossible to file it within the thirty days, the court will relieve the appellant, because the fault is with the court.” Judge Elliot, in his valuable work on Appellate Procedure, at section 112 uses this language: “The rule that the court cannot enlarge the time for taking an appeal must be regarded as established, but the court may, nevertheless, relieve a party in the proper case against fraud or accident. In relieving a party against fraud or accident, the court does not extend the time for taking the appeal by breaking down the provisions of the statute limiting the time within which appeals must be taken. The principle applied is a familiar one, for it is very often applied to the statute of frauds and to the general statute of limitations. The fraud of a party will prevent him from taking advantage of either of the statutes named, and so it will in cases where the...

To continue reading

Request your trial
5 cases
  • Fischer v. Davis
    • United States
    • United States State Supreme Court of Idaho
    • 12 Junio 1913
    ......280, 128 P. 1023;. Continental etc. Assn. v. Mills, 44 Neb. 136, 62. N.W. 478; Dist. of Columbia ...538, 24 P. 286; Brown v. Farmers' Loan & Trust Co., 109 Iowa 440, 80 N.W. 525. . . ......
  • State v. Smith, S-03-1225.
    • United States
    • Supreme Court of Nebraska
    • 13 Mayo 2005
    ...the court official, it precludes the appeal. See, Larson v. Wegner, 120 Neb. 449, 233 N.W. 253 (1930); Continental Building & Loan Association v. Mills, 44 Neb. 136, 62 N.W. 478 (1895). Consequently, if Smiths first postconviction appeal was lost solely due to the clerk's error, Smith would......
  • Goodman v. State
    • United States
    • Supreme Court of Nebraska
    • 23 Octubre 1936
    ...... State, 86 Neb. 334, 125 N.W. 618; Omaha Loan & Trust. Co. v. Ayer, 38 Neb. 891, 57 N.W. 567." We ... Ass'n v. Mills, 44 Neb. 136, 62 N.W. 478, where it. was held: 'Where a ......
  • Goodman v. State
    • United States
    • Supreme Court of Nebraska
    • 23 Octubre 1936
    ......768;Dirksen v. State, 86 Neb. 334, 125 N.W. 618;Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N. W. 567.” We ...Mills, 44 Neb. 136, 62 N.W. 478, where it was held: ‘Where a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT