Martindale v. State, Director of Motor Vehicles, 36323

• Citation: 181 Neb. 64,147 N.W.2d 6
• Decision Date: 09 December 1966
• Docket Number: No. 36323,36323
• Parties: Glen D. MARTINDALE, Appellant, v. STATE of Nebraska, DIRECTOR OF MOTOR VEHICLES, Appellee.
• Court: Supreme Court of Nebraska

Page 6

147 N.W.2d 6

181 Neb. 64

Glen D. MARTINDALE, Appellant, v. STATE of Nebraska, DIRECTOR OF MOTOR VEHICLES, Appellee.

No. 36323.

Supreme Court of Nebraska.

Dec. 9, 1966.

Syllabus by the Court

1. A general demurrer tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded.

2. The validity of a prior judgment of conviction of the operator of a motor vehicle for traffic violations, which judgment has been duly certified in regular form and sent to the Director of Motor Vehicles with nothing appearing thereon indicating invalidity, cannot be collaterally attacked in an appeal to review mandatory and ministerial action of such director in revoking the license of such person to operate a motor vehicle in this state.

Neal D. Youmans, W. H. Kirwin, Scotts-bluff, for appellant.

Clarence A. H. Meyer, Atty. Gen., Chauncey Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and FLORY, District Judge.

SPENCER, Justice.

This is an appeal from the sustaining of the State's demurrer to the petition on appeal of Glen D. Martindale from an order of the Director of Motor Vehicles revoking his operator's license.

A general demurrer tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. Central Nebraska Public Power & Irr.Dist. v. Walston, 140 Neb. 190, 299 N.W. 609.

There is no dispute as to the pleaded facts. The operator's license of appellant was ordered revoked on October 22, 1965 because of an accumulation of 12 points. Included in those points were two resulting from a conviction on February 5, 1964, for operating a motor vehicle on January 21, 1964, when he did not have an operator's license in his possession.

On June 27, 1963, The Director of Motor Vehicles issued an order revoking appellant's license. On that occasion, appellant secured a restraining order in the district court for Scotts Bluff County and the revocation was held in abeyance pending trial. Whiel the action was pending, appellant's license expired and he was unable to secure a renewal. On November 1, 1963, a judgment was entered in the district court for Scotts Bluff County nullifying the order of revocation. A copy of that judgment was transmitted to the Director of Motor Vehicles. On January 9, 1964, the director issued a letter to effectuate the judgment of November 1, 1963. Appellant alleges that this letter was not received by him until after January 21, 1964. On that day, he was arrested for driving without having an operator's license in his possession. Appellant applied for and received an operator's license subsequent to his arrest on January 21, 1964. His conviction on February 5, 1964, resulted in a loss of two points pursuant to section 39--7,128, R.S.Supp., 1965. Subsequently, and before October 22, 1965, appellant accumulated an additional 10 points, and on that date the Director of Motor...