Reiber v. Harris, s. 36038
| Decision Date | 14 January 1966 |
| Docket Number | Nos. 36038,36039,s. 36038 |
| Citation | 179 Neb. 582,139 N.W.2d 353 |
| Parties | Elmer REIBER, Appellant, v. Wenona HARRIS, County Superintendent for Adams County, Nebraska, et al., Appellees (two cases). |
| Court | Nebraska Supreme Court |
Syllabus by the Court
In an appeal to the district court from the order of a freeholder's board, it is mandatory and jurisdictional that a notice of appeal be served upon the county clerk and a bond be executed and approved by the county clerk 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. Section 79-403, R.S.Supp., 1963; Section 23-135, R.R.S.1943.
Wagoner & Grimminger, Grand Island, for appellant. Dunmire & Blessing, Hastings, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.
In two proceedings under section 79-403, R.S.S.upp., 1963, a freeholder's board ordered that land be detached from school district No. 8 of Adams County, Nebraska, and be attached to school district No. 74 of Webster County, Nebraska. Elmer Reiber, a taxpayer of school district No. 8 of Adams County, Nebraska, appealed from both orders to the district court for Adams County, Nebraska.
Luther Goding, Jr., and Frances Louise Goding, the petitioners in case No. 36038, were designated as defendants in the district court in that case. John D. Fishel and Margaret A. Fishel, the petitioners in case No. 36039, were designated as defendants in the district court in that case. The members of the freeholder's board were defendants in each case.
In the district court both appeals were dismissed upon motions filed by the defendant petitioners. The plaintiff Reiber filed motions for new trial which were overruled and he has appealed to this court from the orders of the district court dismissing the appeals. Upon the stipulation of the parties, the appeals were consolidated for briefing and argument in this court. Since the cases involve identical questions, we dispose of both appeals in this opinion.
In each case the hearing before the freeholder's board was held on June 9, 1964. The order detaching the land from school district No. 8 and attaching it to school district 74 in each case was dated June 12, 1964. On June 24, 1964, in each case, the plaintiff filed in the district court for Adams County, Nebraska, a petition on appeal, a notice of appeal, a 'cash bond,' and a transcript of the proceedings before the freeholder's board. Each notice of appeal contained a certificate by the plaintiff's attorney that a copy of the notice of appeal had been mailed to each of the petitioners in the case, and a certificate of the county superintendent of Adams County, Nebraska, stating that she had received a copy of the notice of appeal.
The cash bond filed in the district court in each case read as follows: 'Comes now Elmer Reiber, Plaintiff in the above entitled action, and herewith deposits with the Court, a Cash Bond in the amount of $26.00 conditioned that plaintiff will pay all of the costs adjudged against him as a result of this Appeal.
'ELMER REIBER, Plaintiff,
WAGONER & GRIMMINGER
Attorneys for Plaintiff
By /s/ Sam Grimminger
'CERTIFICATE
'I, Bernard H. Taylor, Clerk of District Court for the County of Adams, State of Nebraska, do hereby certify that on the 24th day of June, 1964, there was deposited in my office a Cash Bond in the amount of $26.00 by Elmer Reiber, which Bond was applied by me for the payment of all costs in the prosecution of this Appeal.
'/s/ Bernard H. Taylor
CLERK OF THE DISTRICT COURT'
A certificate of the clerk of the district court appearing in the record in each case shows that the $26 deposited with the clerk of the district court in each case was in addition to $26 in costs paid by the plaintiff on June 24, 1964, in each case.
On July 28, 1964, the petitioners filed a written motion in each case to dismiss the appeal for the reason that the plaintiff had failed to perfect his appeal as required by statute. The motions specifically alleged a failure to file and execute a proper bond approved by the county clerk as required by section 23-135, R.R.S.1943.
On September 14, 1964, the plaintiff filed motions to amend the bond in each case by 'obtaining the endorsement of the County Clerk's approval thereon' and by 'adding the words 'conditioned for the faithful prosecution of this appeal.''
The district court found in each case that the bond had not been filed with or approved by the county clerk as required by law. The plaintiff's motions to amend were overruled, the petitioners' motions to dismiss were sustained, and the appeals dismissed.
Section 79-403, R.S.Supp., 1963, provides that an appeal may be taken from the action of a freeholder's board to the district court of the county in which the real estate is located within 20 days after the entry of such action on the records of the board by the county clerk of the county in which the real estate is located...
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Hilbers Property Freehold Transfer, In re
...would allow "amendment" of a bond by a substitution of a new principal and a new surety. The intervenor relies upon Reiber v. Harris, 179 Neb. 582, 139 N.W.2d 353 (1966). This court in that case stated, after holding the filing of the bond was jurisdictional, a bond timely filed and approve......
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Lydick v. Johns
...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 o......
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Black v. State, Dept. of Motor Vehicles, 83-546
...been filed and approved within the time required by statute is subject to amendment if defective or invalid." Reiber v. Harris, 179 Neb. 582, 586, 139 N.W.2d 353, 355-56 (1966). The bond in this case, as previously stated, was not filed within the statutorily prescribed time limit, and ther......
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Elson v. Harbert
...Neb. 440, 445, 243 N.W. 616, in a somewhat similar situation, we held that the purposes of the statute were satisfied. Reiber v. Harris, 179 Neb. 582, 139 N.W.2d 353, which is relied upon by the appellee Conry, is clearly distinguishable. In that case there was no proof of any kind that the......