Garneau v. Omaha Printing Co.

• Decision Date: 04 December 1894
• Citation: 42 Neb. 847,61 N.W. 100
• Parties: GARNEAU v. OMAHA PRINTING CO. (TWO CASES).
• Court: Nebraska Supreme Court

42 Neb. 847

61 N.W. 100

GARNEAU

v.OMAHA PRINTING CO. (TWO CASES).

Supreme Court of Nebraska.

Dec. 4, 1894.

Syllabus by the Court.

1. A transcript of the proceedings containing the final judgment sought to be reversed must be filed with the petition in error, and prior to the issuing of the summons in error, in order to confer jurisdiction upon the supreme court.

2. Where this court has not acquired jurisdiction of a cause, the only judgment which can be rendered is one dismissing the proceedings.

Error to district court, Douglas county.

These are two actions by the Omaha Printing Company against Joseph Garneau, Jr., for goods sold and services performed. Judgments for plaintiff, and defendant brings error. Dismissed and affirmed.

J. W. West, for plaintiff in error.

Chas. Offutt and Chas. S. Lobingier, for defendant in error.

NORVAL, C. J.

On the 5th day of March, 1894, the plaintiff in error filed in this court a petition in error to obtain a reversal of two judgments recovered against him in the court below by the defendant in error on the 24th day of March, 1894. The cause is submitted upon the motion of the defendant in error to dismiss and affirm the cases, and render a judgment against the plaintiff in error for 5 per cent. upon the amount of the judgments, as provided by section 596 of the Code of Civil Procedure. The grounds of the motion are two: (1) Plaintiff in error has failed to perfect the appeal, or to file any briefs herein. (2) The causes were brought to this court solely for delay.

The plaintiff in error caused to be filed with the clerk of this court a petition in error, upon which a summons in error was issued, and service thereof has been accepted. He has taken no other or further steps in the case. No transcript of the judgments and proceedings sought to be reviewed has ever been filed in this court. Section 586 of the Code of Civil Procedure provides that “the plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified.” It is clear, under the foregoing provisions, that a cause cannot be docketed in this court, either on appeal or error, until a transcript of the proceedings in the trial court is filed. The transcript of the record is the foundation of the proceedings here, and until the same is filed this court acquires no jurisdiction to hear and determine the cause. Until then there is no case to review. The statute requires that it shall be filed with the petition in...