Smith v. Johnson

• Decision Date: 26 September 1893
• Citation: 56 N.W. 323,37 Neb. 675
• Parties: SMITH ET AL. v. JOHNSON ET AL.
• Court: Nebraska Supreme Court

37 Neb. 675

56 N.W. 323

SMITH ET AL.

v.JOHNSON ET AL.

Supreme Court of Nebraska.

Sept. 26, 1893.

Syllabus by the Court.

1. An order denying a motion for a new trial is not final in such a sense as to constitute a final judgment, nor is a mere judgment for costs.

2. The rulings of the district court cannot be reviewed in this court before final judgment has been entered upon the merits of the case in the court below.

Error to district court, Buffalo county; Hamer, Judge.

Action by H. R. Smith and another against N. H. Johnson, Ed. A. Cutting, and W. R. Learn for conversion. Defendants had a verdict, and from an order overruling their motion for a new trial plaintiffs bring error. Dismissed.Dryden & Main, for plaintiffs in error.

Greene & Hostetler, for defendants in error.

NORVAL, J.

This was an action by H. R. Smith and Alfretta Smith against the defendants in error to recover for the conversion of certain personal property. There was a trial to a jury, which resulted in a verdict for the defendants. Plaintiffs filed a motion for a new trial, which was overruled by the court. The journal entry in the case reads as follows: “Now, on this 30th day of March, 1891, this cause coming on for hearing upon the petition for new trial, filed herein by the plaintiffs, the court, in consideration thereof, and being fully advised in the premises, does overrule the same, to which ruling of said court the plaintiffs except, and the exception is allowed by the court, whereupon the court enters up judgment against the plaintiffs for costs of this action, taxed at $36.23.” This is not a final judgment upon the merits of the case, but is merely a judgment for costs. An order denying a motion for a new trial is not a final judgment, although, if erroneous, the error may be made available on a review of the case in the appellate court, after final judgment has been given in the action. The rule is that an order of a court is not final in such a sense as to constitute a final judgment, unless it disposes of the entire case. There is nothing to prevent the court below from changing its ruling. It may yet set aside the verdict of the jury, and grant the plaintiffs a new trial. Sprick v. Washington Co., 3 Neb. 253; Nichols v. Hail, 5 Neb. 194; Riddle v. Yates, 10 Neb. 510, 7 N. W. Rep. 289;Gapen v. Bretternitz, 31 Neb. 302, 47 N. W. Rep. 918;Stone v. Neeley, 34 Neb. 81, 51 N. W. Rep. 314. Inasmuch as no final judgment has as yet been entered, the petition in...