Dane County Bank of Stoughton, Wisconsin v. Garrett
| Decision Date | 16 June 1896 |
| Docket Number | 6673 |
| Citation | 67 N.W. 884,48 Neb. 916 |
| Parties | DANE COUNTY BANK OF STOUGHTON, WISCONSIN, v. THOMAS J. GARRETT ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Phelps county. Tried below before BEALL, J.
REVERSED.
Rhea & Rhea, for plaintiff in error.
A. J Shafer, contra.
On the 4th day of January, 1892, in the county court of Phelps county, the Dane County Bank recovered a judgment against Thomas J. Garrett et al. on a promissory note. No appeal was ever taken by Garrett et al. from this judgment. On the 14th day of January, 1892, Garrett et al. filed in the district court of Phelps county a petition in error to reverse the judgment of the county court. A summons in error was issued and served on the 18th of January, 1892. On the 23d of June 1893, Garrett et al., for the first time, filed in the district court a transcript of the proceedings of the county court. The district court sustained the petition in error and set aside the judgment of the county court, and to reverse this order of the district court the Dane County Bank has filed in this court a petition in error.
1. The action of the district court in sustaining the error proceeding and setting aside the judgment of the district court was a final order which the Dane County Bank may review in this court by error proceedings without waiting for the final disposition of the original case by the district court. (Banks v. Uhl, 5 Neb. 240; Tootle, v. Jones, 19 Neb. 588, 27 N.W. 635.)
2. The filing by Garrett & Co. in the district court of their petition in error and having a summons in error issued and served did not invest the district court with any jurisdiction to review the judgment of the county court. In order to have invested the district court with jurisdiction to review that judgment it was not only necessary for Garrett et al. to file their petition in error in the district court but also to file in the district court a transcript of the proceedings had by the county court (Code of Civil Procedure, secs. 584, 586); and such petition in error and transcript of the proceedings of the county court must have been filed in the district court within one year from the date of the rendition of the judgment by the county court. (See Code of Civil Procedure, sec. 592, and Sturtevant v. Wineland, 22 Neb. 702, 36 N.W. 277.) The district court, then, was without jurisdiction to review the judgment of...
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