Phenix Ins. Co. v. Swantkowski

• Citation: 47 N.W. 917,31 Neb. 245
• Parties: PHENIX INS. CO. v. SWANTKOWSKI.
• Decision Date: 20 January 1891
• Court: Supreme Court of Nebraska

31 Neb. 245
47 N.W. 917

PHENIX INS. CO.
v.
SWANTKOWSKI.

Supreme Court of Nebraska.

Jan. 20, 1891.

Syllabus by the Court.

Following Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. Rep. 472, it was held that proceedings in error must be commenced in the supreme court within one year from the date of the rendition of the judgment sought to be reversed, without regard to the time when the motion for a new trial was passed upon.

Error to district court, Howard county. On rehearing.

[47 N.W. 917]

T. R. Wallace and Fawcett & Sturdevant, for plaintiff in error.

Paul Anderson and Darnall & Kendall, for defendant in error.

NORVAL, J.

This case was submitted at the last term on the motion of the defendant in error to dismiss the petition in error because the same was not filed within one year from the date of the rendition of the judgment in the district court. The motion was sustained, but no opinion was written. Subsequently an application for a rehearing was made. The record shows that the case was tried to the court without the intervention of a jury, with finding and judgment against the insurance company, on the 27th day of May, 1889, and on the following day it filed a motion for a new trial, which was on the same day overruled by the court. A transcript of the judgment and the petition in error were filed in the supreme court on the 28th day of May, 1890. Section 592 of Code of Civil Procedure is as follows: “No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making the final order complained of,” etc. It is conceded that the proceedings were commenced in this court one day too late, if the limitation commenced to run from the date of the rendition of the judgment. It is contended that the proceedings in error may be commenced in the supreme court within one year from the date of the overruling of a motion for a new trial. This question was considered and decided at the July term, 1883, in Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. Rep. 472. In that case it was...