Fromholz v. McGahey

• Decision Date: 09 October 1909
• Docket Number: 16,126
• Parties: FREDERICK A. FROMHOLZ ET AL., APPELLANTS, v. GERTRUDE H. MCGAHEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

122 N.W. 879

85 Neb. 205

FREDERICK A. FROMHOLZ ET AL., APPELLANTS, v. GERTRUDE H. MCGAHEY ET AL., APPELLEES

No. 16,126

Supreme Court of Nebraska

October 9, 1909

APPEAL from the district court for Platte county: CONRAD HOLLENBECK JUDGE. Dismissed.

Plaintiffs' motion overruled and defendants' motion sustained.

M Whitmoyer, L. S. Hastings and A. M. Post, for appellants.

W. E Atkinson and C. W. De Lamatre, contra.

OPINION

ROOT, J.

The affidavits and other documents on file in this case indicate that a judgment adverse to plaintiffs was rendered in the district court for Platte county in November, 1908. In March, 1909, an unauthenticated transcript of the pleadings in the case and of the judgment appealed from was filed in the office of the clerk of this court. April 1 defendants by their attorneys filed their voluntary appearance herein, reserving, however, the right to object to the jurisdiction of this court. About August 10, and shortly after plaintiffs had served a copy of their brief on defendant's counsel, the defendants requested us to dismiss plaintiffs' appeal. September 16 plaintiffs asked leave to withdraw said transcript so that it might be certified by the clerk of the district court. The affidavits established that defendants did not know until subsequent to the service of plaintiffs' briefs that the transcript had not been attested by the clerk.

We do not have original jurisdiction of the issues litigated in the district court. The legislature in the exercise of its constitutional power has provided the conditions upon which cases like the one at bar may be reviewed by us. Section 675 of the code controls, and is as follows: "The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the criminal code of this state, shall be by filing in the supreme court a transcript certified by the clerk of the district court, containing the judgment, decree or final order sought to be reversed, vacated or modified, within six months from the rendition of such judgment or decree or the making of such final order or within six months from the overruling of a motion for new trial in said cause; the filing of such transcript shall confer jurisdiction in such case upon the supreme court." We have uniformly held that filing an unauthenticated transcript of a judgment of the district court did not give us jurisdiction of the controversy, but that the terms of the statute must be observed and a certified transcript of the judgment filed within the time limited by law. The authorities upon this point were reviewed in Moore v. Waterman, 40 Neb. 498, 58 N.W. 940, and again in Snyder v. Norris. 59 Neb. 243, 80 N.W. 806. See, also, Smith v. Delane, 74 Neb. 594, 104 N.W. 1054.

Plaintiffs however, argue that in none of the cases referred to was a request made for permission to amend the transcript, and that section 144 of the code commands the courts to permit amendments in the interest of justice to be made either before or after judgment; and that the defect in the instant case does not go to the substance, but the form of the statutory conditions. Four decisions of this court and the case of Second Nat. Bank v. Moderwell, 59 Ohio St. 221, 52 N.E. 194, are cited in support of plaintiffs' argument. In Rudolf & Co. v. McDonald & Co., 6 Neb. 163, an affidavit without a venue had been filed to obtain an attachment, and was attacked after judgment in the main case. It was held that the objection came too late. In Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 68, 55 N.W. 211, a transcript from an inferior court had not been filed in the district...