Lynch v. City of Omaha ex rel. Larsen

• Decision Date: 24 July 1950
• Docket Number: 32740,Nos. 32739,s. 32739
• Citation: 153 Neb. 147,43 N.W.2d 589
• Parties: LYNCH v. CITY OF OMAHA ex rel. LARSEN. ANDERSEN v. CITY OF OMAHA ex rel. LARSEN.
• Court: Nebraska Supreme Court

Page 589

43 N.W.2d 589

153 Neb. 147

LYNCH v. CITY OF OMAHA ex rel. LARSEN.

ANDERSEN v. CITY OF OMAHA ex rel. LARSEN.

Nos. 32739, 32740.

Supreme Court of Nebraska.

July 24, 1950.

Syllabus by the Court.

1. A defect of parties who are not indispensable is ordinarily waived unless appropriate objection thereto is made before the cause is finally submitted upon the merits.

2. Findings and orders of an official administrative agency or body acting in a quasi judicial capacity will ordinarily be upheld in error proceedings to the district court and on appeal to this court, if it appears that such agency or body has acted within its jurisdiction and that all of the jurisdictional facts essential to uphold its findings and orders are sustained by some competent evidence.

3. As provided in section 14-810, R.S.1943, if the city refuses or neglects to defend any suit at law or in equity brought against it, any resident taxpayer may defend said suit on its behalf at cost of the city, not including attorney's fees.

4. The striking of a motion for new trial, timely filed in the district court, is the equivalent of overruling the same and finally disposing of the cause upon the merits, from which appeal may be taken to this court, where upon review such judgment may be entered or directed as should have been rendered by the trial court.

G. H. Seig, Omaha, for appellants.

E. D. O'Sullivan, Sr., E. D. O'Sullivan, Jr., Arthur J. Whalen, Warren C. Schrempp and Ernest S. Priesman, all of Omaha, for appellees.

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

CHAPPELL, Justice.

Appellees, police officers of the city of Omaha, were each formally charged with neglect of duty, conduct unbecoming an officer, not being fit to perform the duties of an officer and selling intoxicating liquor without a license and while on duty. They were each at all times here involved represented by counsel of their own choosing. Herein they will be generally designated as plaintiffs, the City of Omaha, et al., as defendants, and Adolph W. Larsen as the taxpayer.

Pursuant to Omaha city ordinances, a hearing was had on such charges before the chief of police, who thereafter entered his findings and orders respectively finding plaintiffs guilty as charged, and ordering them suspended and dismissed from the service.

Therefrom they appealed to the Omaha policy civil service commission, where, after a hearing, the findings and orders of the chief of police were affirmed and sustained.

They then appealed to the city council, where, after hearing upon a transcript of they evidence adduced by the parties before the chief of police and the police civil service commission, the findings and orders of the chief of police and the police civil service commission were again affirmed and sustained.

Therefrom they prosecuted error to the district court, attaching a transcript of all the evidence theretofore taken as a settled bill of exceptions. After a hearing, the trial court entered an order finding that there was error in the record, and retaining the causes for hearing upon the merits. Later, the cases were so heard, whereat the only evidence adduced was that contained in the transcript thereof heretofore described. Thereafter the trial court entered orders and judgments, finding and adjudging in effect that the findings and orders of the chief of police, the police civil service commission, and the city counsel, were, as a matter of law not sustained by the evidence; that the suspension and dismissal of the officers was null and void; and ordering them reinstated to their former positions. Thereafter, the city of Omaha refused and neglected to further defend the action. Thereupon, Adolph W. Larsen, a resident taxpayer, as provided in section 14-810, R.S.1943, a part of Omaha's home rule charter, timely filed motions for new trial.

Plaintiffs then filed motions respectively to strike such motions for new trial, which the trial court sustained for the reason, insofar as important here, that the resident taxpayer's attempted intervention was contrary to law and not within the purview of section 14-810, R.S.1943. The taxpayer's timely motions filed thereafter, to set aside and vacate such orders striking his motions for new trial, were likewise stricken for the same reason, and he appealed to this court.

The two cases were separately appealed to this court, and separate transcripts were filed. However, it was stipulated by the parties that because the issues in each case were identical and arose out of the same facts, the separate appeals should be consolidated with but one bill of exceptions and one set of briefs applicable to both cases. Thus they will both be disposed of in this opinion.

The taxpayer's assignments of error were substantially that the trial court erred: (1) In assuming jurisdiction when neither the police civil service commission nor its members were made parties to the error proceedings; (2) that the trial court erred in holding that the findings and orders of the chief of police, the police civil service commission, and the city council, were not sustained by the evidence; and (3) erred...