Smith v. Silver

• Decision Date: 06 April 1899
• Citation: 58 Neb. 429,78 N.W. 725
• Parties: SMITH ET AL. v. SILVER ET AL.
• Court: Nebraska Supreme Court

58 Neb. 429

78 N.W. 725

SMITH ET AL.

v.SILVER ET AL.

Supreme Court of Nebraska.

April 6, 1899.

Syllabus by the Court.

1. This court is without jurisdiction to determine an equity cause on appeal when the transcript is not filed with the clerk of said court within six months from the entry of the decree or final order sought to be reviewed.

2. A motion for a new trial is not essential to a review of any equity cause.

3. The filing of a motion for a new trial will not extend the time for prosecuting an appeal. The time for taking an appeal begins to run from the date of the entry of the decree or final order, and not from the overruling of the motion for a new trial.

Appeal from district court, Gage county; Letton, Judge.

Action by Frederick Smith and others against Henry H. Silver and others. From a decree for plaintiffs, defendants appeal. On motion to dismiss. Granted.Wolfenbarger & Williams and Hazlett & Jack, for appellants.

George A. Murphy, for appellees.

NORVAL, J.

On March 27, 1897, a decree was rendered in this cause in the court below foreclosing a real-estate mortgage, and within three days thereafter the defendants filed a motion for a new trial, assigning various statutory grounds therefor, which motion, on September 27, 1897, was overruled. On March 24, 1898, the defendants filed a transcript of the record, and the bill of exceptions, duly authenticated, in this court, for the purpose of reviewing the cause on appeal. Plaintiff moved a dismissal of the appeal on the ground that the same was not taken in time.

It will be observed that the appeal was not lodged in this court within six months from the entry of the decree, but was filed within that period of time from the date of the ruling on the motion for a new trial. The question of practice involved is whether the time within which an appeal may be perfected dates from the decree or from the overruling of the motion for a new trial, and the determination thereof necessitates a consideration of the provisions of section 675 of the Code of Civil Procedure and certain adjudications of this court. Said section 675 follows: “Sec. 675. That in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court, to the supreme court of the state; 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 said cause properly docketed in the supreme court; and on a filing thereof, the judgment or decree rendered or final order made in the district court shall stand and be proceeded in as if no appeal had been taken.” This statute limits the time to six months within which an appeal in an equity cause may be taken, and this period dates from the rendition of the decree, or judgment, or the entry of the final order. This court is without jurisdiction to determine a case on appeal where the transcript of the proceedings in the trial court is not filed here within the six months. Withnell v. City of Omaha, 37 Neb. 621, 56 N. W. 381;Trust Co. v. Ayer, 38 Neb. 891, 57 N. W. 567;Moore v. Waterman, 40 Neb. 498, 58 N. W. 940;Albers v. City of Omaha, 56 Neb. 357, 76 N. W. 911. An exception to the rule stated has been recognized and applied where the appellant, without fault or laches, is prevented from having his appeal docketed within the statutory period solely through the neglect or failure of the clerk of the trial court to make a transcript of the proceedings. Such omission will excuse the filing of the appeal out of time. Association v. Mills, 44 Neb. 136, 62 N. W. 478.

It is argued by counsel for appellant that the time within which the appeal should be filed begins to run from the overruling of the motion for a new trial, and not from the rendition of the judgment, and Sharp v. Brown, 34 Neb. 406, 51 N. W. 1030, is cited in support of this contention. In that case it was held, overruling Hollenbeck v. Tarkington, 14 Neb. 430, 16 N. W. 472, that a proceeding in...