Slobodisky v. Curtis

• Decision Date: 08 March 1899
• Docket Number: 10340
• Citation: 78 N.W. 522,58 Neb. 211
• Parties: LOUIS SLOBODISKY v. CARA E. CURTIS, INTERVENER
• Court: Nebraska Supreme Court

78 N.W. 522

58 Neb. 211

LOUIS SLOBODISKY v. CARA E. CURTIS, INTERVENER

No. 10340

Supreme Court of Nebraska

March 8, 1899

ERROR from the district court of Douglas county. Tried below before DICKINSON, J. Heard on motion to dismiss petition in error and on merits of the case. Motion overruled. Judgment below affirmed.

AFFIRMED.

Byron G. Burbank, for plaintiff in error.

George W. Doane and W. G. Doane, contra.

OPINION

NORVAL, J.

A submission herein was first taken on the motion of Cara E Curtis, intervener, to dismiss the petition in error, which was overruled without the filing of an opinion, and the cause has been submitted on the merits. We will first consider the questions presented by the motion to dismiss.

The first ground of the motion is that Louis Slobodisky filed in June, 1898, a petition in error in this court upon the same record, and containing the same assignments of error, and that he subsequently voluntarily dismissed the same. The former error proceeding was not a bar, for the reason that it was not prosecuted upon the record herein filed. In fact no transcript of the record accompanied, or was filed with, the first petition in error; therefore, this court never acquired jurisdiction over the subject-matter. This is the plain and obvious import of section 586 of the Code of Civil Procedure, which declares: "The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified." Of this section, in Garneau v. Omaha Printing Co., 42 Neb. 847, 61 N.W. 100, it was said: "It is clear, under the foregoing provision, that a cause cannot be docketed in this court, either on appeal or error, until a transcript of the proceedings in the trial court is filed. The transcript of the record is the foundation of the proceeding here, and until the same is filed this court acquires no jurisdiction to hear and determine the cause. Until then there is no case to review." This decision is in line with the prior and subsequent adjudications of this court on the subject. (City of Brownville v. Middleton, 1 Neb. 10; Ward v. Urmson, 40 Neb. 695, 59 N.W. 97; Baker v. Kloster, 41 Neb. 890, 60 N.W. 318; Dane County Bank v. Garrett, 48 Neb. 916, 67 N.W. 884; Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N.W. 935; Brockman Commission Co. v. Sang, 52 Neb. 506, 72 N.W. 856.)

The second ground of the motion is equally untenable as the one just noticed. It is based upon the fact that the present cause was docketed as an appeal. It is claimed that the appeal is still pending and undetermined, and that a party cannot prosecute both error and appeal from the same judgment at the same time. The appeal is not pending. Before the final submission of the case, and within the time limited by law for prosecuting an error proceeding, the present petition in error was filed, which constituted an abandonment of the appeal and an election to proceed in error. (Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903; Woodard v. Baird, 43 Neb. 310, 61 N.W. 612; Monroe v. Reid, 46 Neb. 316, 64 N.W. 983; Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N.W. 1059; Shaw v. Robinson, 50 Neb. 403, 69 N.W. 947; Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955; Thomas v. Thomas, 48 Neb. 266; Childerson v. Childerson, 47 Neb. 162, 66 N.W. 281.)

The third and last ground of the motion to dismiss is that no application for a new trial was filed in the court below. The omission in that respect is no valid cause for dismissing the error proceeding. (Cheney v. Wagner, 30 Neb. 262, 46 N.W. 427; Gaughran v. Crosby, 33 Neb. 33, 49 N.W. 776; Erck v. Omaha Nat. Bank, 43 Neb. 613, 62 N.W. 67.) The reason for the rule is that a motion for a new trial is not in every case indispensable to a review in the appellate court. There are many cases in which one or more questions are raised by the record independent of a motion for a new trial.

Now as to the merits of the controversy. Louis Slobodisky brought an action against the Phoenix Insurance Company of Brooklyn on a policy of fire insurance of $ 2,000. Under a specific instruction of the district court a verdict was returned against the plaintiff, who prosecuted error from the judgment entered thereon dismissing his action. On review this court rendered a judgment of reversal and remanded the cause for a new trial. After the mandate was filed in the court below the action was settled, the insurance company paying the clerk of that court, for the use and benefit of Slobodisky, the sum of $ 2,700 and the costs. Thereupon Cara E. Curtis filed in said court a claim for a lien upon said moneys for the sum of $ 610.66, by virtue of a certain lease upon lot 8, block 38, in the city of Omaha, and recorded in the office of the register of deeds of said county, wherein is reserved a lien upon the property of Slobodisky, from which the fund in controversy was derived, to secure the payment of rent on said real estate of Curtis; also by virtue of an assignment made by Slobodisky to secure unpaid rents out of the moneys in dispute. Notice of the lien was served upon Slobodisky, and Cara E. Curtis also filed the motion asking the court for an order directing the clerk to pay her the sum of $ 610.66 from the moneys of Slobodisky in his hands. A hearing was had upon said motion, and the order sought was granted. The correctness of that decision is assailed by Slobodisky.

Counsel for Miss Curtis, the intervener, insists that we are precluded from reviewing the order for which error is prosecuted, since no motion for a new trial was filed in the court below. It has been often asserted by this court that a motion for a new trial is essential to a review of alleged errors occurring upon a trial of a cause. By this it is not meant that a motion for a new trial must be made in the court below to entitle a party to review any case by petition in error, although language in some of our opinions is seemingly in conflict with this statement. The motion is indispensable where a review of alleged errors and rulings occurring during the trial is sought, but the rule has not been extended to every order or decision. Thus it has been held that no motion for a new trial is necessary to review an order sustaining a demurrer to a pleading (Hays v. Mercier, 22 Neb 656, 35 N.W. 894; Donohue v. Hendrix, 13 Neb. 255; Scarborough v. Myrick, 47 Neb. 794, 66 N.W. 867), a decision on a motion to vacate an award (Graves v. Scoville, 17 Neb. 593, 24 N.W. 222), a ruling on a plea in abatement (Bohanan v. State, 15 Neb. 209, 18 N.W. 129), a judgment affirming or reversing in an error proceeding the decision of an inferior court or tribunal (Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237; Leach v. Sutphen, 11 Neb. 527, 10 N.W. 409; Dreyfus v. Moline, Milburn & Stoddard Co., 43 Neb. 233, 61 N.W. 599; Weitz v. Wood Reaping & Mowing Machine Co., 49 Neb. 434, 68 N.W. 613), or an order dismissing an appeal (Claflin v. American Nat. Bank, 46 Neb. 884, 65 N.W. 1056). While the precise question of practice now under consideration has never been passed upon by this court, the principle which should control the decision thereof is not new to the jurisprudence of this state, but has been frequently recognized and applied. In many cases we have considered the rulings of the district court on motions for change of venue and for continuances where the order was not assigned for error in the motion for a new trial, and times almost without number this court has reviewed decisions upon applications to discharge attachments and to set aside the sales of real estate in the absence of a motion for a new trial. In Claflin v. American Nat. Bank, 46 Neb. 884, 65 N.W. 1056, it was said: "It is undoubtedly true that rulings which properly form the basis, grounds, or causes for a new trial are not available as errors in the appellate tribunal unless assigned in a motion for a new trial; and this is as far as the cases cited by counsel for defendant in error go. Rulings which do not pertain to the trial in such a sense as to make them assignable as causes for a new trial, such as rulings upon demurrers, motions addressed to pleadings, and motions to dismiss, need not be called to the attention of the trial court by a motion for a new trial, to make them available in error proceedings." This principle should be applied and extended to the case at bar. No motion for a new trial was...