Sch.-Dist. No. 49, Adams Cnty. v. Cooper

• Decision Date: 29 April 1890
• Citation: 45 N.W. 618,29 Neb. 433
• Parties: SCHOOL-DIST. NO. 49, ADAMS COUNTY, v. COOPER.
• Court: Nebraska Supreme Court

29 Neb. 433

45 N.W. 618

SCHOOL-DIST. NO. 49, ADAMS COUNTY,

v.COOPER.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

The overruling by the district court of an objection made to its jurisdiction is not a final order, and a petition in error cannot be prosecuted therefrom before final judgment in the action.

Error to district court, Adams county; GASLIN, Judge.C. H. Tanner, for plaintiff in error.

Batty & Casto, for defendant in error.

NORVAL, J.

The case is submitted on the motion of the defendant to dismiss the petition in error for the following reasons. First, because the order of the district court overruling the objections of the plaintiff in error to the jurisdiction of the said court was not a final order from which proceedings in error will lie; second,because no final judgment was rendered in the action. The following is a copy of the order entered in the district court: “James Cooper v. School-District No. 49. Now, on this day, this cause came on for hearing upon the special appearance of the defendant, objecting to the jurisdiction of the court, and the court, upon consideration thereof, doth overrule said objections; to which ruling of the court the defendant by counsel excepts, and the exceptions are by the court allowed.” It is patent that this is not a final order. There has been no final disposition of the case by the district court. A petition in error can only be prosecuted from a final order or judgment. Smith v. Sahler, 1 Neb. 310;Mills v. Miller, 2 Neb. 299; Miller v. Railroad Co., 7 Neb. 227; Scofield v. Bank, 8 Neb. 17. The motion to dismiss is sustained. Judgment accordingly.

The other judges concur.