Hollenbeck v. Tarkington
| Court | Supreme Court of Nebraska |
| Writing for the Court | LAKE |
| Citation | 16 N.W. 472,14 Neb. 430 |
| Decision Date | 18 July 1883 |
| Parties | HOLLENBECK v. TARKINGTON. |
14 Neb. 430
16 N.W. 472
HOLLENBECK
v.
TARKINGTON.
Supreme Court of Nebraska.
Filed July 18, 1883.
Motion to dismiss.
[16 N.W. 472]
W. J. Connell, for the motion.
O. H. Ballou and E. M. Bartlett, contra.
[16 N.W. 473]
LAKE, C. J.
This case is a proceeding in error brought to reverse a judgment of the district court of Douglas county which was rendered April 20, 1880. The petition in error was filed August 19, 1881. A motion is now interposed by the defendant in error to dismiss the petition on three distinct grounds: First, because the motion for a new trial was not filed within the time limited by the statute; second, because the bill of exceptions was not settled within the statutory time; third, because the proceeding in error was not commenced within one year after the judgment which it is sought to have reversed was rendered.
As to the first two grounds, we will only say that, while they might be very good reasons for simply quashing the bill of exceptions relative to the trial, we have not hitherto gone so far as to hold them sufficient to warrant us in dismissing the case. Although a bill of exceptions may possibly embody all of the grounds on which a reversal of the judgment is sought, and but for which there would necessarily be an affirmance, still, we regard it as the better practice, where it is desired to raise the question of its validity, to do so by a motion to quash. By pursuing this course we are relieved of the duty of examining the record to ascertain whether it may not present, as records not unfrequently do, other questions for consideration than those depending on the bill of exceptions. The motion, therefore, will not be sustained upon either of the first two grounds.
The third ground or reason assigned for the motion is based upon section 592 of the Code of Civil Procedure, which provides that “no proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of,” etc. This section is doubtless applicable here. And the supreme court of Ohio, in considering a similar provision of the Code of that state, by which the time for commencing proceedings in error was limited to three years, held it to be mandatory. The Schooner Marinda v. Dowlin, 4 Ohio St. 500. But it is urged by counsel for the plaintiff that inasmuch as the motion for a new trial was not filed until after the rendition of the...
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Conradt v. Lepper
...C., 633; Durand v. Higgins, 72 P. 567; Gallagher v. Cornelious, 23 Mont. 27; McCallom v. Ulen, 92 Mo. App., 384; Hollenbeck v. Tarkington, 14 Neb. 430; Brooks v. R. R. Co., 110 Cal. 173; Henery v. Merguire, 111 id., 1; Burchinell v. Bennett, 10 Colo. App., 150; Hill v. Hill, 114 Mich. 599; ......
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City of Lincoln v. First Nat. Bank of Lincoln
...a new trial, which was not ruled upon for some time yet later. In the opinion it is said by Maxwell, C. J., “In Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472, it was held that the transcript must be filed within one year from the date of the judgment, without regard to the time when t......
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Smith v. Silver
...Brown, 34 Neb. 406, 51 N. W. 1030, is cited in support of this contention. In that case it was held, overruling Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472, that a proceeding in error may be instituted within one year from the overruling of the motion for a new trial. The principle ......
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Link v. Connell
...was removed into this court for review, although subsequently dismissed on motion of the defendant in error. See Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472. A writ of restitution having been issued for the purpose of enforcing the judgment of the district court, a petition of inter......
-
Conradt v. Lepper
...C., 633; Durand v. Higgins, 72 P. 567; Gallagher v. Cornelious, 23 Mont. 27; McCallom v. Ulen, 92 Mo. App., 384; Hollenbeck v. Tarkington, 14 Neb. 430; Brooks v. R. R. Co., 110 Cal. 173; Henery v. Merguire, 111 id., 1; Burchinell v. Bennett, 10 Colo. App., 150; Hill v. Hill, 114 Mich. 599; ......
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City of Lincoln v. First Nat. Bank of Lincoln
...a new trial, which was not ruled upon for some time yet later. In the opinion it is said by Maxwell, C. J., “In Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472, it was held that the transcript must be filed within one year from the date of the judgment, without regard to the time when t......
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Smith v. Silver
...Brown, 34 Neb. 406, 51 N. W. 1030, is cited in support of this contention. In that case it was held, overruling Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472, that a proceeding in error may be instituted within one year from the overruling of the motion for a new trial. The principle ......
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Link v. Connell
...was removed into this court for review, although subsequently dismissed on motion of the defendant in error. See Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472. A writ of restitution having been issued for the purpose of enforcing the judgment of the district court, a petition of inter......