Lydick v. Johns

• Decision Date: 02 July 1970
• Docket Number: No. 37590,37590
• Citation: 185 Neb. 717,178 N.W.2d 581
• Parties: Lyle A. LYDICK, Appellee, v. L. C. JOHNS, Director of Motor Vehicles, State of Nebraska, and the State of Nebraska, Appellants.
• Court: Nebraska Supreme Court

Page 581

178 N.W.2d 581

185 Neb. 717

Lyle A. LYDICK, Appellee, v. L. C. JOHNS, Director of Motor Vehicles, State of Nebraska, and the State of Nebraska, Appellants.

No. 37590.

Supreme Court of Nebraska.

July 2, 1970.

Syllabus by the Court

1. The right of appeal in this state is clearly statutory and, unless the statute provides for an appeal from the decision of a quasi-judicial tribunal such right does not exist. If these statutes create such a right, the mode and manner of appeal is statutory and such jurisdiction can only be conferred in the manner provided by statute.

2. The filing of a bond approved by the Auditor of Public Accounts with the Director of Motor Vehicles of the State of Nebraska is a condition precedent for the initiation of an appeal in an implied consent proceeding.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, Herbert T. White, Special Asst. Atty. Gen., Omaha, for appellants.

Fraser, Stryker, Marshall & Veach, Joseph K. Meusey, Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ., and CHADDERDON, District Judge.

SPENCER, Justice.

This is an appeal in an implied consent proceeding, involving a question of jurisdiction. Appellee appealed from an order of the Director of Motor Vehicles of the State of Nebraska revoking his operator's license and privileges for failure to comply with the Nebraska Implied Consent Law.

The order was entered June 10, 1969. Appellee by letter postmarked June 27, 1969, but received by the director on June 20, 1969, gave notice that he intended to appeal to the district court for Douglas County, and enclosed a $200 surety bond.

The procedure for appeal from an order of revocation in an implied consent case is statutory. Section 39--727.11, R.R.S.1943, so far as material herein, provides: 'Any person who feels himself aggrieved because of such revocation may appeal therefrom to the district court of the county where the alleged events occurred for which he was arrested, in the manner prescribed in section 60--420.'

Section 6---420, R.R.S.1943, so far as material herein, provides: 'Any person who feels himself aggrieved because of any order of the director * * * may appeal therefrom to the district court of the county in which the application for the license was originally made or to the district court of the county wherein such person resides * * *. The * * * licensee * * * shall within twenty days from the date of the final order complained of, execute a bond for costs to the State of Nebraska in the sum of two hundred dollars with sufficient surety to be approved by the Auditor of Public Accounts. The bond shall be filed in the office of the director.'

The bond in the instant case was filed with the director but was not approved by the Auditor of Public Accounts. The question involved is whether approval of a bond by the Auditor of Public Accounts within the time limited is a jurisdictional requirement.

The State filed a demurrer raising the jurisdictional question. The trial court overruled the demurrer and permitted the appellee to amend his bond. The State stood on its demurrer and perfected this appeal.

The language of the statute is clear. The bond filed must be approved by the Auditor of Public Accounts. To hold otherwise would constitute an amendment of the statute. We hold that the filing of an approved bond is a jurisdictional requirement. Its filing is a condition precedent to the initiation of the appellate process. In Peck v. Dunlevey, 184 Neb. 812, 172 N.W.2d 613, we said: 'The right of appeal in this state is clearly statutory and unless the statute provides for an appeal from the decision of a quasi-judicial tribunal, such right does not exist. And if these statutes create such a right, the mode and manner of appeal is statutory and such jurisdiction can only be conferred in the manner provided by statute.'

In Radil v. State, 182 Neb. 291, 154 N.W.2d 466, where plaintiff in a condemnation action failed to serve a copy of the notice of appeal on the defendant, we said: 'The right of appeal is statutory and the requirements of the statute are mandatory and must be complied with before the appellate court acquires jurisdiction of the subject matter of the action. Brown v. City of Omaha, 179 Neb. 224, 137 N.W.2d 814. It is fundamental that an appellate court cannot pass on the merits of a case falling within its appellate jurisdiction unless its jurisdiction is invoked in the manner prescribed by statute. Barney v. Platte Valley Public Power & Irr. Dist., 144 Neb. 230, 13 N.W.2d 120. In the instant case, the condemnee failed to serve a copy of the notice of appeal within the time fixed by section 76--715.01, R.R.S.1943, a mandatory step to invoke the jurisdiction of the district court on appeal. The appeal to the district court was not taken in the manner provided by the statute and, consequently, the district court was without jurisdiction to hear the merits of the purported appeal.'

In Reiber v. Harris, 179 Neb. 582, 139 N.W.2d 353, appellant in an appeal to the district court from the order of a freeholder's board, filed a cash bond with the transcript of the proceedings. Section 23--135, R.R.S.1943, required approval of the bond by the county clerk. The bond was not so approved. Appellant was not permitted to amend the bond, and a motion to dismiss was sustained. We there said: 'The Legislature has prescribed the method by which an appeal from an order of a freeholder's board shall be perfected. Within 20 days after the action of the board has been entered upon the records of the board by the county clerk of the county in which the real estate is located, a notice of appeal must be served upon the county clerk and a bond must be executed and approved by the county clerk. These requirements are mandatory and jurisdictional. Sommerville v. Board of Commissioners of Douglas County, 116 Neb. 282, 216 N.W. 815, affirmed on rehearing, 117 Neb. 507, 221 N.W. 433; Drier v. Knowles Vans, Inc., 144 Neb. 619, 14 N.W.2d 222. If the bond is not submitted to the county clerk for approval within the time required by statute, the appeal should be dismissed. County of Cedar v. McKinney Loan & Investment Co., 1 Neb. (Unof.) 411, 95 N.W. 605.'

Appellee relies on Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N.W.2d 486, in which we permitted the amendment of an appeal bond. That case is distinguished from the instant one. There an approved bond was filed. It was the wording and amount of the bond which was questioned. Here the law requires the filing of an approved bond within 20 days. This we hold to be a condition precedent to the initiation of the appeal.

We reverse the judgment herein and dismiss the action.

Reversed and dismissed.

McCOWN, Justice (dissenting).

Some additional facts should be set out. The bond in this case was executed by the principal and by the Insurance Company of North America, as surety, and was dated three days prior to the expiration of the appeal time. The bond carried on the lower lefthand corner of its face, the...