Dobesh v. Associated Asphalt Contractors, Inc.

• Decision Date: 20 October 1939
• Docket Number: 30741.
• Citation: 288 N.W. 32,137 Neb. 1
• Parties: DOBESH v. ASSOCIATED ASPHALT CONTRACTORS, INC., ET AL.
• Court: Nebraska Supreme Court

288 N.W. 32

137 Neb. 1

DOBESH v. ASSOCIATED ASPHALT CONTRACTORS, INC., ET AL.

No. 30741.

Supreme Court of Nebraska.

October 20, 1939

Judgment Vacated Dec. 20, 1939.

See 289 N.W. 369.

Syllabus by the Court.

" The supreme court has no power to exercise appellate jurisdiction in proceedings to review the judgments of the district court, unless a transcript is filed with the clerk of this court within the time prescribed by law for taking appeals." State v. Amsberry, 104 Neb. 273, 279 177 N.W. 179, 178 N.W. 822.

Appeal from District Court, Custer County; Hostetler, Judge.

Proceeding under the Workmen's Compensation Act by Melvin Dobesh, a minor of the age of 17 years, employee, by Cleo Dobesh, his mother and next friend, opposed by Associated Asphalt Contractors, Inc., Colonel H. P. Harding, and Employers' Liability Assurance Corporation, Limited, impleaded with Village of Ansley, Custer County, Neb., a municipal corporation, and the Travelers Insurance Company. The employee received an award of compensation in the compensation court against defendant Associated Asphalt Contractors, Inc., the Village of Ansley, and the Travelers Insurance Company, and such defendants appealed to the district court. From a judgment of affirmance the Village of Ansley and the Travelers Insurance Company appeal.

Appeal dismissed.

Evans & Lee, of Broken Bow, and Chambers, Holland & Locke, of Lincoln, for appellants.

Allan F. Black, of Broken Bow, and Perry, Van Pelt & Marti, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE and JOHNSEN, JJ.

PER CURIAM.

This is a compensation case. It arises out of an injury sustained by plaintiff on June 16, 1937, in an accident which arose out of and in the course of his then employment. In the hearing or rehearing in the compensation court, he received an award of compensation against the defendants Associated Asphalt Contractors, Incorporated, the Village of Ansley Custer county, Nebraska, and the Travelers Insurance Company, a corporation, from which the defendants above named prosecuted an appeal to the district court for Custer county. From a judgment of affirmance as to defendants Associated Asphalt Contractors, Incorporated, the Village of Ansley, Nebraska, and the Travelers Insurance Company, a corporation, made and entered in the district court for Custer county on May 8, 1939, jointly and severally against the defendants last named, the defendants Village of Ansley, Nebraska, and the Travelers Insurance Company now appeal to this court.

The controlling statute governing the procedure on appeals to the supreme court in compensation cases is included in section 48-174, Comp.St.Supp.1937, viz.:

" Any appeal from the judgment of the district court shall be prosecuted in accordance with the general laws of the state regulating appeals in actions at law except that such appeal shall be perfected within thirty days from the entry of judgment by the district court and the cause shall be advanced for argument before the supreme court within thirty days from the filing of said appeal, and the supreme court shall render its judgment and write an opinion in such cases within thirty days after submission: Provided, that a judgment, order, or award of the district court may be modified or set aside only upon the following grounds: (1) That the court acted without or in excess of its powers. (2) That the judgment, order or award was procured by fraud. (3) That the findings of fact are not conclusively supported by the evidence as disclosed by the record, and if so found, the cause shall be considered de novo upon the record. (4) That the findings of fact by the court do not support the order or award."

" The general laws of the state regulating appeals," employed in the statute quoted, by necessary implication adopt the language of section 20-1912, Comp.St.1929, reducing, however, the time of perfecting such appeal by filing the transcript certified to by the clerk in this court from " with in three months" to " within thirty days" from the entry of the judgment in the district court.

The condition of the record presented on this appeal challenges our attention to certain defects which we will now consider.

We are committed to the view, viz.: " The Supreme Court has no power to exercise appellate jurisdiction in proceedings to review the judgments of the district court, unless a transcript is filed with the clerk of this court within the time prescribed by law for taking appeals." State v. Amsberry, 104 Neb. 273, 279, 177 N.W. 179, 178 N.W. 822.See, also, State v. Amsberry, 104 Neb. 769, 178 N.W. 828.

One of the essential requirements for perfecting an appeal, as stated by this court, is: " In order to effect an appeal from the district to the supreme court, it is necessary to file with the clerk of this court, within the time prescribed by statute, a transcript of the proceedings, authenticated by the certificate of the clerk of the district court. Such requirement is jurisdictional, and the stipulation of the parties or their attorneys stating that the transcript contains all the proceedings will not supply the omission of the certificate of the clerk of the trial court." McDonald v. Grabow, 46 Neb. 406, 64 N.W. 1093.See, also, Fromholz v. McGahey, 85 Neb. 205, 122 N.W. 879.

In the instant case there is a clerk's certificate to the transcript. It is in the following form:

" The state of Nebraska)

)

ss. Custer County )

I, H. J. Copsey, Clerk of the District Court, Twelfth Judicial District of Nebraska, within and for the County of Custer, do hereby certify that the within and aforegoing is a true and correct copy of ______ in a cause in said Court wherein Melvin Dobesh, a minor et al., is plaintiff, and Associated Asphalt Contractors, Inc., are defendants, as the same appears in the files and upon the records of said Court now in my charge as Clerk aforesaid.

In testimony whereof, I have hereunto set my hand officially and affixed seal of said Court at...