Fauber v. Keim

• Decision Date: 13 April 1909
• Docket Number: No. 15,471.,15,471.
• Parties: FAUBER v. KEIM.
• Court: Nebraska Supreme Court

84 Neb. 167

120 N.W. 1019

FAUBER

v.KEIM.

No. 15,471.

Supreme Court of Nebraska.

April 13, 1909.

Syllabus by the Court.

A cause is not reviewable in this court on appeal unless a final order or judgment has been rendered and entered in the district court.

A “final judgment” is not disclosed by a journal entry which merely recites the submission of the cause to the court and concludes in the following language: “The court finds for the defendant and judgment of dismissal. Plaintiff excepts to findings and judgment.”

Commissioners' Opinion. Appeal from District Court, Thayer County; Hurd, Judge.

Action by Catherine Fauber against Harrison Keim. Judgment for defendant, and plaintiff appeals. Dismissed.W. E. Godhue and J. T. Crew, for appellant.

C. L. Richard and C. H. Sloan, for appellee.

GOOD, C.

Plaintiff, a legatee under the will of Joseph Keim, deceased, brought this action to declare her legacy entitled to preference over other legacies provided for in said will, and to have it declared a lien on certain real estate owned by testator at his death, title to which real estate was subsequently acquired by defendant pursuant to provisions contained in the will. Plaintiff has appealed from what she asserts is a final judgment entered by the district court dismissing her cause of action. The journal entry relied upon as constituting the judgment of dismissal is in the following language: “Now, on this 29th day of May, 1907, that being one of the days of the regular May, A. D. 1907, term of district court, in and for Thayer county, Neb., came now the attorneys for the parties to this action, and the cause having been taken under advisement, at a former term of this court, the court finds for the defendant and judgment of dismissal. Plaintiff excepts to finding and judgment.”

To obtain a review in this court of the judgment of the district court there must be a final order or judgment rendered, and it cannot be reviewed prior to its formal entry upon the journal of the trial court. A mere memorandum of the trial judge is not sufficient. See Hall County v. Smith, 49 Neb. 274, 68 N. W. 481;Hornick, Hess & Moore v. Maguire, 47 Neb. 826, 66 N. W. 867;Ward v. Urmson, 40 Neb. 695, 59 N. W. 97.

The sufficiency of a journal entry claimed to be a final judgment must be tested by its substance, rather than by its form; but there are certain requisites of a judgment which cannot be dispensed with. The entry must purport to be an actual judgment...