Lewis v. Barker

• Decision Date: 09 January 1896
• Citation: 46 Neb. 662,65 N.W. 778
• Parties: LEWIS v. BARKER ET AL.
• Court: Nebraska Supreme Court

46 Neb. 662

65 N.W. 778

LEWIS

v.BARKER ET AL.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

An order sustaining a motion to quash a summons is not reviewable until followed by a final judgment of dismissal.

Error to district court, Burt county; Clarkson, Judge.

Action by Edward E. Lewis against Martin Barker and others.From an order quashing the summons, plaintiff brings error.Dismissed.H. Wade Gillis, for plaintiff in error.

NORVAL, J.

This suit was instituted in the district court of Burt county by the plaintiff in error against Martin Barker, Frank Dellone, Fred Dellone, and John McCrary.Barker was summoned in Burt county, and the other defendants in Douglas county.Subsequently, on motion of the two Dellones and McCrary, the summons was by the court quashed as to them, on the ground that it was issued without the authority of law; and, to reverse this order, the plaintiff prosecutes a petition in error to this court.

The decision of which complaint is here made is not reviewable, since it is not final in such a sense as to constitute a final judgment.An order sustaining a motion to quash a summons is not reviewable in the appellate court before a final judgment dismissing the cause has been rendered in the court below.This was distinctly held in Brown v. Rice, 30 Neb. 236, 46 N. W. 489;Persinger v. Tinkle, 34 Neb. 5, 51 N. W. 299;Standard Distilling Co. v. Freyhan, 34 Neb. 434, 51 N. W. 976.SeeSmith v. Johnson, 37 Neb. 675, 56 N. W. 323;Bank v. Smith, 43 Neb. 237, 61 N. W. 606;Edgar v. Keller, 43 Neb. 263, 61 N. W. 587; and authorities therein cited.Since the record fails to show that a final judgment of dismissal has yet been rendered in the cause in the...