Otteman v. Interstate Fire & Cas. Co.

• Decision Date: 04 November 1960
• Docket Number: No. 34925,34925
• Citation: 171 Neb. 148,105 N.W.2d 583
• Parties: Clarence R. OTTEMAN, Appellee, v. INTERSTATE FIRE AND CASUALTY COMPANY, Inc., a corporation, Appellant.
• Court: Nebraska Supreme Court

Page 583

105 N.W.2d 583

171 Neb. 148

Clarence R. OTTEMAN, Appellee, v. INTERSTATE FIRE AND CASUALTY COMPANY, Inc., a corporation, Appellant.

No. 34925.

Supreme Court of Nebraska.

Nov. 4, 1960.

Syllabus by the Court

1. A final order within the meaning of section 25-1902, R.R.S.1943, is one which determines the action and prevents a judgment; one which affects a substantial right in a special proceeding; or one which is made on a summary application in an action after judgment.

2. An exception to the general rule that only final orders are appealable appears in section 25-1315.03, R.R.S.1943, wherein it is provided that an order entering judgment as provided in section 25-1315.02, R.R.S.1943, or granting or denying a new trial, is an appealable order.

3. The summary judgment process as defined by statute is a special proceeding.

4. An order is final only when no further action is required to dispose of the cause pending, but when the cause is retained for further action the order is interlocutory.

5. An order sustaining a motion for new trial is in its essence interlocutory.

6. The interlocutory character of an order sustaining a motion for new trial is not destroyed by the fact that by the terms of section 25-1315.03, R.R.S.1943, an appeal may be taken therefrom.

7. A trial is the examination before a competent tribunal, according to law, of facts or law put in issue in a cause, for the purpose of determining such issue.

8. The process prescribed by the summary judgment act is not a trial within the meaning of that term and a judgment in favor of a movant is not one rendered as the result of a trial.

9. A new trial does not involve an original examination of issues, but only reexamination.

10. A court of general jurisdiction has inherent power to vacate an adjudication made by it in a civil case at any time during the term of court in which it was made.

Wm. G. Line, Fremont, for appellant.

Spear, Lamme & Simmons, Fremont, for appellee.

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

YEAGER, Justice.

This is an action at law wherein Clarence R. Otteman is plaintiff and appellee and The Interstate Fire and Casualty Company, Inc., a corporation, is defendant and appellant. The action was commenced in the district court for Dodge County, Nebraska. In the action a petition was filed and in due course an answer was filed as was also a reply. For reasons which will become apparent necessity does not arise to set forth the character of the pleaded cause of action or the defense thereto.

After the issues were made up each party submitted to the other interrogatories. Answers were in due course made. Thereafter the defendant made request for admissions. There was a due response by the plaintiff to this request.

Following these steps the defendant filed a motion for a summary judgment. The motion for summary judgment was sustained on July 7, 1960, and by judgment of the district court the petition of plaintiff was dismissed.

On July 14, 1960, the plaintiff filed a motion denominated motion for new trial. This motion was sustained on September 10, 1960. From the order sustaining the motion the defendant appealed. The plaintiff filed in this court a motion to dismiss the appeal. The ground of the motion is that the order vacating the summary judgment and granting a trial is not an order or judgment from which an appeal may be taken. This is the only question before this court at this time.

The motion to dismiss the appeal has been presented on memorandum briefs. From these briefs it appears, although there is nothing therein directly so stating, that the rendition of the summary judgment and the vacation thereof occurred within the same term of court. For the purposes of this opinion it will be assumed that this was true.

In the light of this assumption it becomes necessary to determine first whether or not the order vacating the judgment was a final order within the meaning of section 25-1902, R.R.S.1943. If it was not then necessity will arise to determine whether or not it was appealable under section 25-1315.03, R.R.S.1943.

A final order within the meaning of section 25-1902, R.R.S.1943, is one which determines the action and prevents a judgment; one which affects a substantial right in a special proceeding; or one which is made on a summary application in an action after judgment.

Section 25-1315.03, R.R.S.1943, contains an exception to the general rule applicable under section 25-1902, R.R.S.1943, that appeals may be taken only from final orders. This section provides in part the following: 'An order entering judgment, as provided in section 25-1315.02, or granting or denying a new trial, is an appealable order.' For the purposes of this case the concern is with the question of the right to appeal from an order granting a new trial.

If this was a final order within the meaning of section 25-1902, R.R.S.1943, it follows of course that the order was appealable.

It is clear that the order was not one made on a summary application after judgment. It is also clear that it did not directly or in effect determine the action and prevent a judgment. It affirmatively left the action open for trial and judgment.

There can be little doubt that the summary judgment process as defined by statute is a special proceeding. That was so pointed out in Healy v. Metropolitan Utilities Dist., 158 Neb. 151, 62 N.W.2d 543, 544. In that case it was said: 'A motion for a summary judgment is not a substitute for a motion to dismiss, a demurrer, or a judgment on the pleadings. It is a new procedure which may be used in certain cases where other procedural steps are not effective.'

The process involved avoids the weighing of evidence and requires the determination to be based upon the sole question of whether or not there is any genuine issue of fact. Section 25-1332, R.R.S.1943, defines it as follows: '* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

Based on reason however it may not well be said that what was done here affected a substantial right. What was done here preserved the right to a trial under orderly legal processes, a right which had been denied by the summary judgment. No substantial right basic in the subject matter of the action as presented by the pleadings was in anywise affected by the vacation of the summary judgment.

This court has held that an order is final only when no further action is required to dispose of the cause pending, but when the cause is retained for further action the order is interlocutory. Merle & Heaney Mfg. Co. v. Wallace, 48 Neb. 886, 67 N.W. 883; Continental Trust Co. v. Peterson, 76 Neb. 411, 107 N.W. 786, on rehearing, 76 Neb. 417, 110 N.W. 316; Wunrath v. Peoples Furniture & Carpet Co., 98 Neb. 342, 152 N.W. 736; Barry v. Wolf, 148 Neb. 27, 26 N.W.2d 303; Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497; Koehn v. Union Fire Ins. Co., 151 Neb. 859, 39 N.W.2d 808; Harkness v. Central Nebraska Public Power & Irr. Dist., 154 Neb. 463, 48 N.W.2d 385.

From an examination of section 25-1902, R.R.S.1943, and these cases the conclusion is inescapable that by the section the previously declared interlocutory character of an order sustaining a motion for new trial has not been disturbed. It has remained the...