Schuyler v. Hanna

• Decision Date: 28 January 1890
• Citation: 44 N.W. 731,28 Neb. 601
• Parties: AMANDA M. SCHUYLER, APPELLANT, v. HENRY O. HANNA ET AL., APPELLEES
• Court: Nebraska Supreme Court

44 N.W. 731

28 Neb. 601

AMANDA M. SCHUYLER, APPELLANT, v. HENRY O. HANNA ET AL., APPELLEES

Supreme Court of Nebraska

January 28, 1890

MOTION to dismiss appeal.

MOTION OVERRULED.

Frank Martin, for the motion.

Isham Reavis, and E. W. Thomas, contra.

OPINION

NORVAL, J.

The plaintiff brought an action in partition in the district court of Richardson county. A decree was entered therein on the 18th day of June, 1888, and the plaintiff appeals. A transcript of the proceedings, containing the pleadings and decree, was filed in this court December 17, 1888. The defendant Lorinda Hanna now moves to dismiss the appeal on two grounds:

First--Because the transcript does not contain the testimony taken on the trial.

Second--That no notice of appeal was issued herein until November 8, 1889.

It is contended that this court has no jurisdiction, because the transcript does not contain the testimony and proofs offered in evidence on the trial. The determination of this question will turn upon the proper construction of sec 675, Comp. Stats. 1889, p. 952, which provides that "the party appealing shall, within six months after the date of the rendition of the judgment or decree, or the making of the final order, procure from the clerk of the district court and file in the office of the clerk of the supreme court a certified transcript of the proceedings had in the cause in the district court, containing the pleadings, the judgment or decree rendered, or final order made therein, and all the depositions, testimony, and proofs offered in evidence on the hearing of the cause, and have the said cause properly docketed in the supreme court."

The right to appeal in equity cases is regulated solely by statute. A liberal construction should be given all laws providing for appeals--such a construction as will not abridge the right. The mandatory part of the above quoted statute is "that the party appealing shall within six months after the date of the rendition of the judgment or decree, or the making of the final order, * * * file in the office of the clerk of the supreme court a certified transcript of the proceedings had in the cause in the district court." On the filing of such a transcript within the statutory time, this court acquires jurisdiction notwithstanding such transcript may be imperfect or may not contain all the matters called for in the above quoted section. The transcript in this case contains the decree of the lower court, and all the pleadings in the case, which we think was sufficient to confer jurisdiction to compel the sending up of the balance of the record, and having jurisdiction for one purpose, it existed for all others.

The decision in N. & C. R. R. Co. v. Storer, 22 Neb. 90 34 N.W. 69, we think is decisive of this motion. In that case an appeal had been taken to the district court from the award of commissioners in the assessment of damages sustained by the owner of real estate by the appropriation of the same by the defendant railroad. The transcript consisted of a certified copy only of the report of the commissioners appointed by the county judge to assess the damages. It was held that the district court acquired jurisdiction notwithstanding the transcript was not complete. Judge COBB uses this language in the opinion in that case: "It cannot be contended that it is a perfect or complete transcript. Neither can it be said not to be, in part, a transcript of the condemnation proceedings. The condemnation...