Rosen Auto Leasing, Inc. v. Jordan
| Decision Date | 05 September 2006 |
| Docket Number | No. A-05-477.,A-05-477. |
| Citation | 15 Neb. App. 1,720 N.W.2d 911 |
| Parties | ROSEN AUTO LEASING, INC., a Nebraska corporation, appellant, v. Michael A. JORDAN, appellee. |
| Court | Nebraska Court of Appeals |
John T. Rogers, Omaha, for appellant.
No appearance for appellee.
Rosen Auto Leasing, Inc. (Rosen), has attempted to prosecute this appeal from an order of the county court for Douglas County, Nebraska, denying Rosen's request of the county court to issue a capias for the arrest of Michael A. Jordan. Rosen appealed to the district court, which affirmed the county court's denial of Rosen's request. Since the docketing of the case in this court, the case has been under jurisdictional review because the original order of the county court was not properly entered by the clerk of the county court — there was no file stamp placed upon the order. Despite Rosen's attempts to remedy the jurisdictional default, we now conclude that we are without jurisdiction, and we dismiss this appeal.
Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev.2005), this case was ordered submitted without oral argument. We write a published opinion in this case to discuss the jurisdictional problems contained herein and to discuss this case's variation of the concept of "springing" jurisdiction previously discussed in State v. Brown, 12 Neb.App. 940, 687 N.W.2d 203 (2004). Additionally, we feel compelled to once again emphasize the vital importance of lower courts, clerks of court, counsel, and litigants taking the most basic steps to ensure compliance with Neb.Rev.Stat. § 25-1301 (Cum.Supp.2004). As we iterated in State v. Brown, 12 Neb. App. at 940, 687 N.W.2d at 205, "[o]ur hope is that our opinion will provide guidance for the bench and bar, eliminate unnecessary procedural delays for litigants, and make the work of the appellate courts somewhat simpler."
On November 27, 2001, Rosen filed a petition in the county court. In the petition, Rosen sought a judgment against Jordan for default under the terms of a lease agreement.
On May 15, 2002, Rosen filed a motion seeking a default judgment because Jordan "failed to timely answer, appear or otherwise plead." On May 16, the county court entered a default judgment in favor of Rosen in the amount of $3,360.11 plus interest and costs. On November 13, Rosen filed a praecipe for execution of the default judgment, but the sheriff was "unable to locate [Jordan] in Douglas County" and Jordan had "no goods, chattels, lands and tenements on which to levy."
On August 26, 2003, Rosen filed a motion seeking an order in aid of execution of the default judgment. Rosen asked the county court to issue an order "requiring [Jordan] to appear and answer questions concerning property of [Jordan]." On August 27, the county court signed an order demanding that Jordan appear and warning that Jordan's failure to so appear could result in a warrant being issued for his arrest. A civil process server was unable to serve the order, however, because Jordan could not be located "after diligent search and inquiry."
On January 20, 2004, Rosen filed another motion seeking an order in aid of execution of the default judgment and asking the county court to issue an order "requiring [Jordan] to appear and answer questions concerning property of [Jordan]." On January 21, the county court signed an order demanding that Jordan appear and again warning that Jordan's failure to so appear could result in a warrant being issued for his arrest. A process server was again unable to serve the order because Jordan could not be located.
On May 6, 2004, Rosen filed another motion seeking an order in aid of execution of the default judgment and asking the county court to issue an order for Jordan's appearance. On May 7, the county court signed an order demanding that Jordan appear and again warning that Jordan's failure to so appear could result in a warrant being issued for his arrest. On May 7, the county court also signed an order authorizing service "by leaving the process at [Jordan's] usual place of residence and mailing a copy by first class mail to [Jordan's] last known address." A process server left the process at Jordan's "usual place of residence," and Rosen served a copy by first-class mail.
A June 29, 2004, county court journal entry indicates the following:
Plaintiff appeared
Defendant failed to appear. No Personal Service.
Order SignedPl granted leave to issue Capias. Bond set at $5,000 10%.
ERA
This journal entry does not bear any file stamp. It appears that the county court initially intended to journal that Rosen be granted leave to issue an arrest warrant for Jordan's arrest and to set a bond amount for the arrest warrant but then decided not to issue such an order because Jordan had not been personally served with the May 7 order in aid of execution. Nonetheless, because the journal entry does not bear a file stamp, it did not constitute a properly entered order pursuant to § 25-1301.
On July 28, 2004, Rosen filed a notice of appeal in the county court indicating Rosen's intention to appeal "from the order entered . . . on June 29, 2004 wherein the ourt denied [Rosen's] request for Capias to [i]ssue against [Jordan]." On September 13, Rosen filed a "Statement of Errors" in the district court challenging the county court's failure to issue an arrest warrant without personally serving Jordan. On March 9, 2005, the district court entered an order affirming the county court's "decision."
On April 7, 2005, Rosen filed a notice of appeal in the district court indicating Rosen's intention to appeal the district court's affirmance of "the decision of the Douglas County Court denying [Rosen's] request for Capias to [i]ssue against [Jordan]." On July 7, this court issued an order to show cause. In the order, this court noted the lack of a "valid signed and file-stamped judgment denying a motion for capias" by the county court. Rosen requested an extension of time and leave of court to cure the jurisdictional defect, in which motion Rosen requested leave of court to obtain a valid judgment in the county court, a modified order in the district court, and a supplemental transcript in this court.
On August 17, 2005, the county court issued an order specifically denying Rosen's request for capias. The county court specifically found that the request was denied "solely on the fact that [Jordan] was not personally served with notice" of the county court's order in aid of execution. This order of the county court was properly signed by the county court judge and was file stamped by the clerk of the county court.
On August 24, 2005, Rosen filed a motion in the district court seeking to modify the district court's March 9 order of affirmance. Rosen requested the district court "to acknowledge the Court's acquisition of full jurisdiction in this appeal and for such other and further relief as is just and equitable." On September 1, the district court entered an order modifying the March 9 order of affirmance. The district court recognized that it had "full and complete jurisdiction" and again affirmed the county court's denial of Rosen's request for issuance of capias.
On December 6, 2005, this court issued an order, sua sponte, directing the parties to file briefs addressing the following issue:
Assuming that jurisdiction "sprung" to the district court upon the entry of judgment in the county court on August 17, 2005, see State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203 (2004); Neb. Rev.Stat. § 25-2729(5) (Cum.Supp.2004), does the district court's September 1 Order of affirmance confer jurisdiction upon the Court of Appeals, despite the fact that no new notice of appeal from the district court to the Court of Appeals was filed at any time after the jurisdiction of the district court was perfected on August 17?
Rosen filed its brief on appeal and specifically addressed the above issue. Jordan failed to file any brief on appeal.
Because we conclude that we are without jurisdiction to hear Rosen's appeal, we need not specifically address Rosen's assignments of error concerning the merits of this case.
We begin, as we did in State v. Brown, 12 Neb.App. 940, 687 N.W.2d 203 (2004), with the general proposition that for an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Further, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). Section 25-1301 sets forth two ministerial requirements for a final judgment: the rendition of a judgment and the entry thereof; both are prerequisites to appellate court jurisdiction.
The first ministerial requirement, found at § 25-1301(2), is rendition of a judgment, defined as the act of the court, or a judge thereof, "in making and signing a written notation of the relief granted or denied in an action." The second ministerial requirement, found at § 25-1301(3), is the entry of a judgment, defined as the act of the clerk of the court in placing the file stamp and date upon the judgment. In short, for a final judgment to exist to allow an appellate court to acquire jurisdiction, there must be an order that is both signed by the court as well as file stamped and dated by the clerk of the court. See, § 25-1301; State v. Brown, supra.
Since § 25-1301 became effective in August 1999, the appellate courts of this state have been required to deal with many appeals containing nonfinal judgments because the lower court's orders were missing the signature of the court or the file stamp and date of the clerk of the court, or...
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Roberts v. Richter, No. A-09-263 (Neb. App. 8/11/2009)
...(court lacked authority to act in absence of pleading and thus its order was null). Unlike the situation in Rosen Auto Leasing v. Jordan, 15 Neb. App. 1, 720 N.W.2d 911 (2006), however, Richter can later take a timely appeal. Once the judgment is in fact entered by the district court, the m......