Smith v. Silver

CourtSupreme Court of Nebraska
Writing for the CourtNORVAL
Citation58 Neb. 429,78 N.W. 725
Decision Date06 April 1899
PartiesSMITH ET AL. v. SILVER ET AL.

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.

[78 N.W. 725]

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

[78 N.W. 726]

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...

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3 cases
  • Douglas Cnty. v. Barker Co., 28529.
    • United States
    • Supreme Court of Nebraska
    • July 20, 1933
    ...in equity was provided in which no motion for a new trial was necessary. Swansen v. Swansen, 12 Neb. 210, 10 N. W. 713;Smith v. Silver, 58 Neb. 429, 78 N. W. 725. Section 1, c. 174, Laws of 1905, was next enacted, which, except as to the time limited for filing of transcript on appeal, was ......
  • Douglas County v. Barker Company, 28529
    • United States
    • Supreme Court of Nebraska
    • July 20, 1933
    ...in equity was provided in which no motion for a new trial was necessary. Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713; Smith v. Silver, 58 Neb. 429, 78 N.W. 725. Section 1, ch. 174, Laws 1905, was next enacted, which, except as to the time limited for filing of transcript on appeal, was ide......
  • Smith v. Silver, 9970
    • United States
    • Supreme Court of Nebraska
    • April 6, 1899
    ...78 N.W. 725 58 Neb. 429 FREDERICK SMITH ET AL., APPELLEES, v. HENRY H. SILVER ET AL., APPELLANTS No. 9970Supreme Court of NebraskaApril 6, APPEAL from the district court of Gage county. Heard below before LETTON, J. Submitted on motion to dismiss appeal. Dismissed. Appeal DISMISSED. Wolfenb......

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