Edgar v. Keller

• Decision Date: 03 January 1895
• Citation: 43 Neb. 263,61 N.W. 587
• Parties: EDGAR v. KELLER ET AL.
• Court: Nebraska Supreme Court

43 Neb. 263

61 N.W. 587

EDGAR

v.KELLER ET AL.

Supreme Court of Nebraska.

Jan. 3, 1895.

Syllabus by the Court.

An order of a district court, which in effect determines that an appeal from an inferior court had been perfected in due time allowed by law for such purpose, and places the case upon its docket for adjudication, held not a final order, and not subject to review upon error to this court.

Appeal from district court, Cherry county; Crites, Judge.

Action by Hiram R. Edgar against George W. Keller and another for damages for trespass. Judgment in favor of plaintiff was rendered by the county court, and defendants appealed to the district court. Plaintiff moved for judgment in the district court, for defendants' failure to perfect their appeal. The motion was denied, and plaintiff appeals. Appeal dismissed.J. Wesley Tucker, for appellant.

Ed. Clarke, for appellees.

HARRISON, J.

The plaintiff commenced an action against the defendants in the county court of Cherry county, and on the 10th day of November, A. D. 1890, and as a result of a trial therein, recovered a judgment for $25 and costs. It appears that, during the progress of appeal proceedings by the defendants, the county judge took (in accordance with a promise made to the attorney for defendants) the transcript, together with other and the original papers in the case, into the clerk's office, and left them there for filing; that for some reason the filing mark was not placed upon the transcript, or any of the papers. After the expiration of 30 days from the time the judgment was rendered in the county court, the plaintiff filed the following motion: “Comes now the plaintiff, and avers and shows to the court that on the 10th day of November, 1890, plaintiff herein recovered judgment against the defendant herein, before F. M. Wolcott, county judge in and for the county of Cherry aforesaid, for the sum of $25 and costs, taxed at $298.75; that on the 11th day of November, 1890, the defendant executed his appeal bond, which was approved by the said F. M. Wolcott, county judge as aforesaid; that the defendant has failed to perfect his appeal by delivering to the clerk a transcript of said case, and having his appeal docketed, within 30 days next following the rendition of said judgment; that plaintiff herein has caused a transcript of the proceedings of said county judge to be filed, and caused said case to be docketed. Wherefore, plaintiff prays that judgment be entered in favor of plaintiff and against the defendant for $25 and costs as aforesaid, taxed at $298.75, together with all costs that have accrued in this court, and that execution be awarded thereon.” On the 22d day of May, 1891, during a term of the district court then being held in Cherry county, affidavits were filed and oral testimony taken, the purpose of the evidence adduced being to show the leaving or filing of the...