Slobodisky v. Curtis

Decision Date08 March 1899
Citation58 Neb. 211,78 N.W. 522
PartiesSLOBODISKY v. CURTIS.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. The filing of a petition in error in the supreme court is alone insufficient to invest jurisdiction. It is indispensable to jurisdiction that there should be filed with the petition in error, and within the time fixed by statute, a transcript of the proceedings of the district court containing the final judgment sought to be reviewed.

2. Where a party files a petition in error within the time limited by the law for the prosecution of error proceeding, he thereby abandons the appeal which he had previously docketed in the case.

3. The mere failure to file a motion for a new trial in the court below is not, of itself, sufficient reason for dismissing a petition in error by the supreme court.

4. The ruling of the district court on a motion to require its clerk to pay out moneys in his hands may be reviewed, although there was made no motion for a new trial.

5. An order drawn on a particular fund creates an equitable assignment thereof, although not accepted by the drawee.

Error to district court, Douglas county; Dickinson, Judge.

Action by Louis Slobodisky against the Phœnix Insurance Company, in which Cara E. Curtis intervened. From a judgment for intervener, plaintiff brings error. Affirmed.Byron G. Burbank, for plaintiff in error.

G. W. & W. G. Doane, for defendant in error.

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 that “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. 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;Bank v. Garrett, 48 Neb. 916, 67 N. W. 884;Wachsmuth v. Insurance Co., 49 Neb. 590, 68 N. W. 935;Commission Co. v. Sang, 52 Neb. 506, 72 N. W. 856.

The second ground of the motion is equally as 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, but before the final submission of the case, and within the time limited by law for prosecuting 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 & Stokes Co., 50 Neb. 403, 69 N. W. 947;Chicago, B. & Q. R. Co. v. Cass Co., 51 Neb. 369, 70 N. W. 955;Thomas v. Churchill, 48 Neb. 266, 67 N. W. 182;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. 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 Phenix 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 levied, 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 a review of any case by petition in error, although the 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;O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. 215;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 on 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;Dryfus v. Moline Milburn & Stoddard Co., 43 Neb. 233, 61 N. W. 599;Weitz v. Machine Co., 49 Neb. 434, 68 N. W. 613), an order dismissing an appeal (Claflin v. 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 continuances where the order was not assigned for error in the motion for a new trial, and at times almost without number this court has reviewed decisions upon applications to discharge attachments, and to set aside the...

To continue reading

Request your trial
10 cases
  • What Cheer Savings Bank v. Mowery
    • United States
    • Iowa Supreme Court
    • 26 Octubre 1910
    ... ... In re ... Hanna (D. C.) 105 F. 587; Dolese v. McDougall, ... 182 Ill. 486 (55 N.E. 547); Slobodisky v. Curtis, 58 ... Neb. 211 (78 N.W. 522); Gillette v. Murphy, 7 Okla ... 91 (54 P. 413); Building Association v. Coleman, 94 ... Va. 433 (26 S.E ... ...
  • What Cheer Sav. Bank v. Mowery
    • United States
    • Iowa Supreme Court
    • 26 Octubre 1910
    ...upon the demand of a third person. In re Hanna (D. C.) 105 Fed. 587;Dolese v. McDougall, 182 Ill. 486, 55 N. E. 547;Slobodisky v. Curtis, 58 Neb. 211, 78 N. W. 522;Gillette v. Murphy, 7 Okl. 91, 54 Pac. 413;Building Association v. Coleman, 94 Va. 433, 26 S. E. 843; Zilke v. Woodley, 36 Wash......
  • W. L. Huffman Auto. Co. v. Moline Plow Co.
    • United States
    • Nebraska Supreme Court
    • 15 Mayo 1923
    ...Myrick, 47 Neb. 794;Hays v. Mercier, 22 Neb. 656;Claflin v. American Nat. Bank, 46 Neb. 887.” To the same effect are Slobodisky v. Curtis, 58 Neb. 211, 78 N. W. 522;Walker v. Burtless, 82 Neb. 214, 118 N. W. 113;Anderson v. Union Stockyards Co., 84 Neb. 305, 120 N. W. 1124; Fairbanks, Morse......
  • W. L. Huffman Automobile Company v. Moline Plow Company
    • United States
    • Nebraska Supreme Court
    • 15 Mayo 1923
    ... ... 656, 35 N.W. 894; ... Claflin v. American Nat. Bank, 46 Neb. 884, 65 N.W ...          To the ... same effect are Slobodisky v. Curtis, 58 Neb. 211, ... 78 N.W. 522: Walker v. Burtless, 82 Neb. 214, 118 ... N.W. 113; Anderson v. Union Stock Yards Co., 84 Neb ... 305, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT