Dimmel v. State

• Decision Date: 11 January 1935
• Docket Number: 29276.
• Citation: 258 N.W. 271,128 Neb. 191
• Parties: DIMMEL v. STATE.
• Court: Nebraska Supreme Court

258 N.W. 271

128 Neb. 191

DIMMEL v. STATE.

No. 29276.

Supreme Court of Nebraska.

January 11, 1935

Syllabus by the Court.

1. The Supreme Court cannot exercise appellate jurisdiction in a criminal case, unless the petition in error is filed within three months after the rendition of final judgment.

2. The Legislature may limit the time within which an appeal may be taken, and the trial court may not extend the time by vacating and reentering the same judgment.

3. The district court has jurisdiction to set aside its own judgment during the term at which it was rendered, if it believes that its former conclusion is erroneous.

Error to District Court, Wayne County; Stewart, Judge.

Fritz J. Dimmel was convicted of criminal libel, and he brings error.

Error proceedings dismissed.

C. H Hendrickson and H. E. Siman, both of Wayne, for plaintiff in error.

Paul F Good, Atty. Gen., and Paul P. Chaney, Asst. Atty. Gen., for the State.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, and DAY, JJ., and ELDRED, District Judge.

DAY Justice.

The plaintiff in error, hereinafter referred to as the defendant was convicted of criminal libel upon two counts and was sentenced to pay a fine of $75 on each count. The defendant, as owner and publisher of a newspaper at Winside, Nebraska, published certain articles which are the basis of this prosecution.

The state challenged the jurisdiction of this court to review the final judgment of the district court for that the petition in error was not filed here within three calendar months. The provisions of the law applicable to a review of the judgment are sections 20-1931 and 29-2301, Comp. St. 1929. The Supreme Court cannot exercise appellate jurisdiction in a criminal case, unless the petition in error is filed within three months after the rendition of final judgment. Kock v. State, 73 Neb. 354, 102 N.W. 768; Dirksen v. State, 86 Neb. 334, 125 N.W. 618; Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N.W. 567.

The verdict finding the defendant guilty upon two counts was returned October 19, 1933, and thereafter on October 21, 1933, a motion for new trial was filed. January 9, 1934, the trial court overruled this motion for new trial and sentenced the defendant. On the same day, the defendant filed an affidavit of his intention to prosecute error proceedings. The record is then silent until May 8, 1934, when defendant filed a motion " to set aside the journal entry and ruling on the motion for a new trial herein entered January 9, 1934." On this last date, this motion was sustained by the trial court, and, on the same day, the motion was overruled again, and the identical sentence imposed. Notice of appeal was again filed. The question raised by the record is whether this proceeding in error is prosecuted from the order of January 9, 1934, or May 8, 1934. If from the order of January 9, the petition in error was not filed in time (June 7, 1934) to give this court jurisdiction. The Legislature may limit the time within which an appeal may be taken, and the trial court may not extend the time by vacating and reentering the same judgment. Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98, 89 A.L.R. 932.Neither can it be extended by agreement of the parties. Tootle v. Shirey, 52 Neb. 674, 72 N.W. 1045.But, in this case, it is argued that the vacation and reentry was not for the purpose of extending the time for filing the petition in error, but that it was done for the purpose of further argument and consideration of the trial court.

The motion to vacate the sentence and the order overruling the motion for new trial recite that the purpose was " to give further consideration to matters involved herein and to give counsel...