Rorick Partnership v. Haug, 86-656

• Decision Date: 29 April 1988
• Docket Number: No. 86-656,86-656
• Citation: 422 N.W.2d 365,228 Neb. 364
• Parties: RORICK PARTNERSHIP, a General Partnership, Appellee, v. Lydia HAUG, Appellant.
• Court: Nebraska Supreme Court

Page 365

422 N.W.2d 365

228 Neb. 364

RORICK PARTNERSHIP, a General Partnership, Appellee, v. Lydia HAUG, Appellant.

No. 86-656.

Supreme Court of Nebraska.

April 29, 1988.

Syllabus by the Court

Courts: Jurisdiction: Appeal and Error. To vest appellate jurisdiction in the district court for an appeal from the county court, all that is required is the timely filed notice of appeal and timely deposit of the district court docket fee, as required by Neb.Rev.Stat. § 24-541.02 (Reissue 1985).

Lydia Haug, pro se.

John J. Reefe, Jr., Omaha, for appellee.

BOSLAUGH, WHITE, and SHANAHAN, JJ., and GITNICK and GARDEN, District Judges.

PER CURIAM.

As the landlord and owner of real estate leased as an apartment to Lydia Haug, Rorick Partnership commenced an action in the county court for Douglas County. Rorick alleged that Haug's tenancy in the leased premises was terminated, but that Haug continued in possession of the premises, notwithstanding Rorick's notice to quit. Rorick requested a writ of restitution for the premises and costs of the action. Haug answered and counterclaimed, seeking $40,000 in damages from Rorick. Since the amount of the counterclaim exceeded the county court's jurisdiction of $10,000, see Neb.Rev.Stat. § 24-517 (Cum.Supp.1986), the county court transferred Haug's counterclaim to the district court for Douglas County. See Neb.Rev.Stat. § 24-302.01 (Cum.Supp.1986).

In the trial on Rorick's petition, the county court found in favor of Rorick and issued a writ of restitution on May 27, 1986. On May 29, Haug, as required by Neb.Rev.Stat. § 24-541.02 (Reissue 1985) governing an appeal from the county court to the district court, filed her notice of appeal and deposited the district court docket fee with the clerk of the county court. Also, Haug deposited $750 in the county court as a supersedeas of the writ of restitution. The transcript for the district court proceedings states only:

Plaintiff appeared through counsel.

Defendant appeared.

Evidence adduced.

Motion for Recusal heard and overruled.

Motion to file Amended Affidavit sustained.

Motion on Bond heard.

Motion sustained.

Appeal dismissed based upon lack of adequate bond.

Case disposed of.

In her appeal, Haug argues that dismissal of her appeal was incorrect.

Among the statutes applicable to this case are the following concerning appeals from the county court to the district court:

(1) In order to perfect an appeal from the county court the appealing party shall within thirty days after the rendition of the judgment or making of the final order complained of:

(a) File with the clerk of the county court a notice of appeal; and

(b) Deposit with the clerk of the county court a docket fee in the amount of the filing fee in district court for cases originally commenced in district court.

(2) Satisfaction of the requirements of subsection (1) of this section shall perfect the appeal and give the district court jurisdiction of the matter appealed, except that in appeals from the county court sitting as a juvenile court the county court may act in accordance with section 43-202.03.

§ 24-541.02;

In appeals in cases under the Uniform Residential Landlord and Tenant Act no appeal shall operate as a supersedeas of any writ of restitution until the defendant shall deposit an undertaking or cash bond in accordance with section 76-1447.

Neb.Rev.Stat. § 24-541.03(4) (Reissue 1985); and

In all cases other than appeals from the Small Claims Court, the district court shall review the case for error appearing on the record made in the county court.... The district court shall render a judgment which may affirm, affirm but modify, or reverse the judgment or final order of the county court.... If the district court reverses, it may enter judgment in accordance with its findings or remand the case to the county court for further proceedings consistent with the judgment of the district court.

Neb.Rev.Stat. § 24-541.06(1) (Reissue 1985).

Neb.Rev.Stat. § 76-1447 (Reissue 1986) of the Uniform Residential Landlord and Tenant Act, Neb.Rev.Stat. §§ 24-568 (Reissue 1985) and 76-1401 to 76-1449 (Reissue 1986), provides:

If either party feels aggrieved by the judgment, he may appeal as in other civil actions. An appeal by the defendant shall stay the execution of any writ of restitution, so long as the defendant deposits with the clerk of the district court the amount of judgment and costs, or gives an appeal bond with surety therefor, and thereafter pays into court, on a monthly basis, an amount equal to the monthly rent called for by the rental agreement at the time the complaint was filed.

Rorick contends that the Uniform Residential Landlord and Tenant Act applies to its action against Haug and then asserts that Haug

never paid "into court, on a monthly basis, an amount equal to the monthly rent called for by the rental agreement at the time the complaint was filed." Thus appellant was in default on her bond and appellee was entitled to the writ of restitution, which was granted by the District Court.

Brief for Appellee at 6.

As far as we can determine, the district court disposed of Haug's appeal on the basis of a lack of jurisdiction on account of an inadequate supersedeas bond, that is, "Appeal dismissed based upon lack of adequate bond."

To vest appellate jurisdiction in the district court for an appeal from the county court, all that is required is the timely filed notice of appeal and timely deposit of the district court docket fee, as required by § 24-541.02.

A district court's acquisition of appellate...