Dobesh v. Associated Asphalt Contractors, Inc.
| Decision Date | 20 December 1939 |
| Docket Number | 30741. |
| Citation | 289 N.W. 369,137 Neb. 342 |
| Parties | DOBESH v. ASSOCIATED ASPHALT CONTRACTORS, INC., ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
When it appears that an appeal was dismissed solely because the transcript did not show facts sufficient to give this court jurisdiction on appeal due to mistake in the preparation of such transcript, and it further appears that appellant was not apprised of such defects in the transcript until the judgment of the court was entered dismissing the appeal, this court will, if timely application be made accompanied by a showing of such mistake, vacate the order of dismissal and permit a correction of the record by the filing of a supplemental transcript.
Appeal from District Court, Custer County; Hostetler, Judge.
On motion to vacate a judgment, 288 N.W. 32, dismissing an appeal for want of jurisdiction and for leave to file a supplemental and amended transcript showing that jurisdiction in fact existed.
Judgment of dismissal vacated, and leave to file supplemental transcript granted.
Evans & Lee, of Broken Bow, and Chambers, Holland & Locke and T. J Kiesselbach, all of Lincoln, for appellants.
Allen F. Black, of Broken Bow, and Perry, VanPelt & Marti, of Lincoln, for appellee.
Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE and JOHNSEN, JJ.
This is a motion to vacate a judgment dismissing an appeal for want of jurisdiction in a compensation case, and for leave to file a supplemental and amended transcript showing that jurisdiction in fact existed.
When this case was previously before this court, it was discovered that the transcript showed that the judgment in the district court was entered on May 8, 1939. The record before the court further showed that an authenticated transcript of the proceedings was filed in this court on June 12, 1939. The motion for a new trial was shown therein as having been filed on May 15, 1939. We held, correctly we think, that the motion for a new trial and the transcript of the proceedings were filed out of time and that this court did not have jurisdiction to hear the appeal. Dobesh v. Associated Asphalt Contractors, Inc., Neb., 288 N.W. 32.
The appellant now moves the court for an order vacating the judgment of dismissal and for leave to file an amended and supplemental transcript for the reason that the records of the district court in fact show that the motion for a new trial was filed on May 15, 1939, and that the judgment was filed and spread on the journal of the court on May 15, 1939, which facts, if properly appearing in the transcript of the proceedings, would lodge jurisdiction in this court.
The record does not show that a motion to...
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