Grass, In re

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; BOSLAUGH
• Citation: Grass, In re, 126 N.W.2d 184, 176 Neb. 403 (Neb. 1964)
• Decision Date: 07 February 1964
• Docket Number: No. 35558,35558
• Parties: In the Matter of Kayka Seraphine GRASS, Louis Dean Grass, and Lois Grass, neglected children. Mona Jane Grass MORIMOTO and Louis Morimoto, Appellees, v. The NEBRASKA CHILDREN'S HOME SOCIETY, Appellant, The County of Scotts Bluff, Nebraska, Appellee, Kayka Seraphine Grass, Louis Dean Grass and Lois Grass, Interveners-Appellants. *

Page 184

126 N.W.2d 184

176 Neb. 403

In the Matter of Kayka Seraphine GRASS, Louis Dean Grass, and Lois Grass, neglected children Mona Jane Grass MORIMOTO and Louis Morimoto, Appellees, v. The NEBRASKA CHILDREN'S HOME SOCIETY, Appellant The County of Scotts Bluff, Nebraska, Appellee Kayka Seraphine Grass, Louis Dean Grass and Lois Grass, Interveners-Appellants. ^*

No. 35558.

Supreme Court of Nebraska.

Feb. 7, 1964.

Syllabus by the Court

1. The judgment of a court having jurisdiction of the parties and the subject matter is conclusive upon the parties thereto, even though erroneous, unless reversed in appellate proceedings.

2. The Supreme Court acquires no jurisdiction of an appeal where the notice of appeal was not filed in the district court within 1 month after the rendition of the judgment or the overruling of a motion for new trial. Section 25-1912, R.S.Supp., 1961.

Tracy Peycke, Omaha, for Nebraska Children's Home.

Martin A. Cannon, Omaha, Matthews, Kelley & Cannon, Omaha, for Kayka Seraphine Grass and others.

Wright, Simmons & Hancock, Scottsbluff, for Mona Jane Grass Morimoto and Louis Morimoto.

Don Wood, Mitchell, for County of Scotts Bluff.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

BOSLAUGH, Justice.

This is an appeal from a judgment of the district court entered upon the mandate of this court in a prior appeal. The opinion of this court upon the prior appeal appears as Morimoto v. Nebraska Children's Home Society, 175 Neb. 174, 121 N.W.2d 26.

On September 5, 1961, the district court for Scotts Bluff County, Nebraska, adjudged that Kayka Seraphine Grass, Louis Dean Grass, and Lois Grass were neglected children and awarded the permanent care, custody, and control of the children to the Nebraska Children's Home Society.

On February 20, 1962, this action was brought by Mona Jane Grass Morimoto and Louis Morimoto, the parents of the children, to vacate the judgment of the district court entered on September 5, 1961, and to obtain a new hearing in that proceeding. On July 2, 1962, after a hearing on the merits, the trial court found that the petition should be denied and, in effect, dismissed the action. A motion for new trial filed by the petitioners was overruled on August 7, 1962. A notice of appeal to this court was not filed until September 10, 1962.

This court held that the judgment of the district court of September 5, 1961, was void and subject to a petition to vacate by Louis Morimoto, a person having custody of two of the children, because there had been no service of summons upon him as required by section 43-206, R.R.S.1943. Morimoto v. Nebraska Children's Home Society, supra. The judgment of the district court was reversed and the cause remanded with directions to vacate the judgment of September 5, 1961.

The mandate of this court was filed in the district court on May 24, 1963. On that date the district court entered the following judgment: 'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the mandate of the Supreme Court is hereby spread upon the records of this court. Judgment therein is hereby entered in accordance with said mandate. All previous orders of this court are hereby vacated and held for naught and this proceeding is hereby dismissed. The County of Scotts Bluff, Nebraska and Nebraska Children's Home Society is hereby ordered to forthwith return the children involved herein to this county and to deliver the same to their parents forthwith.'

On May 27, 1963, the Nebraska Children's Home Society filed a motion for new trial and the children, appearing by Martin A. Cannon as their next friend, filed a petition for leave to intervene and a motion for new trial. These motions and motions to restrain further proceedings and for supersedeas were all overruled on that same day. Notice of appeal were then filed by the Nebraska Children's Home Society and the children appearing by their next friend.

On June 11, 1963, a motion for supersedeas filed in this court by the appellants was sustained. Thereafter, a supersedeas bond was filed and approved.

On August 12, 1963, the children, appearing by their next friend, filed a motion in this court to recall the mandate issued in the prior appeal and to dismiss that appeal because this court had never acquired jurisdiction of that appeal. This motion was heard and submitted on September 16, 1963. It was apparent that this motion, if sustained, would be determinative of this appeal. Therefore, the ruling on the motion was reserved until a hearing could be had upon the merits of this appeal.

On October 4, 1963, this court appointed Martin A. Cannon as guardian ad litem for the children. Section 43-206, R.R.S.1943, provides that 'in any case the judge may appoint some suitable person to act in behalf of the child.'

The judgment on the mandate, which the trial court entered on May 24, 1963, did not respond to either the pleadings or the mandate. The petition filed on February 20, 1962, by Mona Jane Grass Morimoto and Louis Morimoto sought to vacate the judgment of September 5, 1961, and obtain a new hearing. This court directed only that the judgment of September 5, 1961, be vacated. The district court was not directed to dismiss the action and there was no reason to dismiss the action at that time.

The proceedings had in 1961 which resulted in the judgment of September 5, 1961, awarding the custody of the children to the Nebraska Children's Home Society, were defective only in that a summons had not been served upon Louis Morimoto. In all other respects the proceedings were regular and valid.

The proceedings had in 1961 were commenced by the county attorney filing a complaint alleging that the children were neglected. A summons was issued and served upon Mona J. Grass, now Mona Jane Grass Morimoto, who was the mother of the children and had one of the children in her...