Harkness v. Central Neb. Public Power & Irr. Dist.

• Decision Date: 14 June 1951
• Docket Number: No. 32998,32998
• Citation: 154 Neb. 463,48 N.W.2d 385
• Parties: HARKNESS et al. v. CENTRAL NEBRASKA PUBLIC POWER & IRR. DIST.
• Court: Nebraska Supreme Court

Page 385

48 N.W.2d 385

154 Neb. 463

HARKNESS et al. v. CENTRAL NEBRASKA PUBLIC POWER & IRR. DIST.

No. 32998.

Supreme Court of Nebraska.

June 14, 1951.

Syllabus by the Court

1. When a demurrer to a petition is sustained, the plaintiff's action dismissed, and a motion for a new trial and rehearing is filed, in the event it is ruled upon, then under section 25-1912, R.R.S.1943, the time for appeal begins to run from the date of the ruling on the motion for a new trial and rehearing.

2. During the pendency of a motion for a new trial timely filed, no appealable order is considered as having been rendered until the motion for a new trial is disposed of.

R. E. Bannister, S. G. Deines, Cozad, Smith Brothers, Lexington, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, Frank M. Johnson, Lexington, R. O. Canaday, Hastings, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought by the plaintiffs against the defendant to recover damages to crops caused by the construction of a system of canals, reservoirs, and incidental structures by the defendant, and the impounding of large amounts of water through the canals into the reservoirs. As a result of such construction and operation by the defendant water has seeped from the reservoirs and canals toward and under the property of the plaintiff, destroying the value of the soil and causing damage to the growing crops alleged to have been caused solely by water escaping from the defendant's works.

The plaintiffs' amended petition set forth four alleged causes of action on the basis heretofore mentioned. On November 20, 1950, the defendant demurred to the amended petition on the ground that it did not state a cause of action, and prayed its dismissal. On December 13, 1950, the trial court sustained the demurrer of the defendant to the plaintiffs' amended petition. On December 23, 1950, the plaintiffs filed a motion for a new trial in which they asked for rehearing on the demurrer sustained by the trial court on the ground that dismissing of the plaintiffs' cause of action was contrary to law. On January 11, 1951, the plaintiffs filed notice of appeal to this court. The motion for new trial and rehearing is still pending in the district court for Dawson County.

The defendant moves this court to dismiss the appeal for the reason that the record herein shows that no final appealable order, judgment, or decree has been entered in the cause in the district court for Dawson County which court still has jurisdiction of the cause, there being no final adjudication or final order, judgment, or decree entered by the district court from which an appeal to this court can be prosecuted.

Section 25-1911, R.R.S.1943, provides: 'A judgment rendered or final order made by the district court may be reversed, vacated or modified by the Supreme Court for errors appearing on the record.'

Section 25-1912, R.R.S.1943, insofar as necessary to state here, provides for the filing in the office of the clerk of the district court in which a judgment, decree, or final order was rendered, within one month after the rendition of the same, or the making of such final order, or within one month from the overruling of a motion for new trial in said cause, a notice of intention to prosecute such appeal signed by the appellant or appellants or his or their attorney of record.

Section 25-1902, R.R.S.1943, provides: 'An order affecting a substantial right in an action, when such order in effect determines the action and prevents a...