Rogers v. Redick
| Decision Date | 21 July 1880 |
| Parties | ROGERS v. REDICK & CONNELL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Motion to dismiss petition in error.
John I. Redick, for the motion.
On the twentieth day of November, 1878, Redick & Connell filed a claim for the sum of $500 against the estate of Isaac N. Rogers, deceased, which, on the second day of January, 1879, was allowed by the county court. From the order allowing the account the plaintiff took the case on error to the district court, where, on the sixteenth day of June, 1879, the court dismissed the proceedings in error because not authorized by the statute. On the eighteenth day of May, 1880, the plaintiff filed a transcript of the proceedings in the supreme court, and on the fifth day of June thereafter filed a petition in error, but no summons was issued until the twenty-ninth of that month. The defendants now move to dismiss the proceedings.
Section 580 of the Code provides that “a judgment rendered or final order made by a probate court, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the supreme court, may be reversed, vacated, or modified by the district court.” The provisions of this section apply to all judgments or final orders of the probate court. A party may, if he see fit, appeal from an order allowing or disallowing an account, but this remedy is not exclusive; he may have the same reviewed on error. The district court, therefore, erred in dismissing the proceedings.
The objection that a summons in error was not issued within a year from the date of the order dismissing the proceedings in the district court seems to be well taken.
Section 584 of the Code provides that the proceedings to obtain such reversal, vacation, or modification, shall be by petition, to be entitled “Petition in Error,” filed in the court having power to make such reversal, vacation, or modification, setting forth the errors complained of, and thereupon a summons shall be issued and be served, or publication made, as in the commencement of an action.
Section 62 provides that “a civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” This would seem to require the party filing the petition to cause a summons to issue. This request to the clerk to issue a summons may be made orally, or in writing. No precipe need be filed unless...
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In re Big Laramie River
...held in that state, as in Ohio, that a summons issued within the time limited may be served after such time has expired. ( Rogers v. Redick, 10 Neb. 332, 6 N.W. 413; v. Sloss, 13 Neb. 230, 13 N.W. 212.) In a case decided by the superior court of Cincinnati in 1899 (Bemis v. Pittsburg &c. Ry......
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McGrew v. State Bank of Humboldt
...53 Neb. 255, 73 N. W. 693;Sheedy v. Sheedy, 36 Neb. 373, 54 N. W. 560;Yeatman v. Yeatman, 35 Neb. 422, 53 N. W. 385;Rogers v. Redick, 10 Neb. 332, 6 N. W. 413. The judgment of the probate court was not the act of recording the judgment entered on the probate record on April 27th, but that w......
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McGrew v. State Bank of Humboldt
...53 Neb. 255, 73 N.W. 693; Sheedy v. Sheedy, 36 Neb. 373, 54 N.W. 560; Yeatman v. Yeatman, 35 Neb. 422, 53 N.W. 385; Rogers v. Redick, 10 Neb. 332, 6 N.W. 413. judgment of the probate court was not the act of recording the judgment entered on the probate record on April 27, but that which it......
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Hendrickson v. Sullivan
... ... the date of the judgment is no cause for dismissing the case ... This court has so held in the case of Rogers v ... Redick, 10 Neb. 332, 6 N.W. 413. The following is the ... third clause of the syllabus in the case: "A summons in ... error must be issued ... ...