State ex rel. Ayres v. Amsberry
| Citation | 104 Neb. 273,178 N.W. 822 |
| Decision Date | 29 June 1920 |
| Docket Number | No. 21212.,21212. |
| Parties | STATE EX REL. AYRES ET AL. v. AMSBERRY, SECRETARY OF STATE. |
| Court | Supreme Court of Nebraska |
STATE EX REL. AYRES ET AL.
v.
AMSBERRY, SECRETARY OF STATE.
No. 21212.
Supreme Court of Nebraska.
June 29, 1920.
The Supreme Court has no power to exercise appellate jurisdiction in proceedings to review the judgments of the district court, unless a transcript is filed with the clerk of this court within the time prescribed by law for taking appeals.
In actions arising under the provisions of chapter 159, Laws 1913, as amended by chapter 86, Laws 1919, appeals from the district court to the Supreme Court must be taken within ten days from the rendition of the judgment or final order in the district court.
“The word ‘may’ in public statutes should be construed as ‘must’ whenever it becomes necessary in order to carry out the intent of the Legislature; but in all other cases this word, like any other, must have its ordinary meaning.” Kelly v. Morse, 3 Neb. 224, followed.
[178 N.W. 823]
Record examined, and the case held to be an appeal from the judgment of the district court, and not an original action for mandamus in this court.
The title of the initiative and referendum act (Laws 1913, c. 159) examined, and held sufficient to cover those provisions in the act relative to procedure in the district court and limitation of time for appeal, as such matters are found to be germane to the general subject, expressed in the title as “An act to provide for carrying into effect the initiative and referendum,” etc.
Appeal from District Court, Lancaster County; Morning, Judge.
On rehearing. Former judgment vacated, and appeal dismissed.
For former opinion, see 177 N. W. 179.
Dean and Aldrich, JJ., dissenting.
Dexter T. Barrett, of Lincoln, for appellants.
A. G. Wolfenbarger and C. M. Skiles, both of Lincoln, amici curiæ.
Clarence A. Davis, Atty. Gen., George W. Ayres, Deputy Atty. Gen., and Burkett, Wilson, Brown & Wilson, of Lincoln, for appellee.
DAY, J.
In our former opinion in this case, March 13, 1920, 177 N. W. 179, the facts are sufficiently set forth to an understanding of the controversy, and need not be repeated here.
Upon our initiative a reargument has been had addressed solely to the question of the jurisdiction of this court. The respondent contends that we are without jurisdiction of the subject-matter for the reason that no transcript of the proceedings was filed with the clerk of this court within the time prescribed by law, and that the filing of such transcript within the time prescribed is a necessary precedent to our jurisdiction. The respondent relies upon the provisions of the statute affecting appeals in cases arising under the act for carrying into effect the initiative and referendum powers reserved by the people (Laws 1913, c. 159), and particularly upon a portion of section 5 thereof. This provision of the law is referred to in the argument as section 2339, Rev. St. 1913, which has been repealed by chapter 86, Laws 1919, retaining, however, the exact language found in the original section, viz.: “Either party may appeal to the Supreme Court within ten days after a decision is rendered.” The order of the district court from which the appeal was taken was entered August 5, and the transcript of the proceedings filed with the clerk of this court on August 19--some 14 days after the final order. In our former opinion we held that the question of jurisdiction might have been raised by a plea or motion to dismiss, but, as this was not done, and the parties had stipulated to advance the case and try it “upon its merits,” and the parties had gone to the expense of printing briefs, that the objection to the jurisdiction would be deemed to have been waived. In support of this view, we cited Lloyd v. Reynolds, 26 Neb. 63, 41 N. W. 1072, and Patterson v. Woodland, 28 Neb. 250, 44 N. W. 112. Upon a reconsideration of the question of our jurisdiction we have become convinced that the position taken in our former opinion is wrong. Except in the class of cases mentioned in article 6, § 2, of the Constitution wherein original jurisdiction is conferred on this court, it exercises appellate jurisdiction only, and appellate jurisdiction of the subject-matter can only be conferred in the manner provided by statute, and cannot be conferred by stipulation of the parties. The question of the jurisdiction of this court where the transcript was not filed within the prescribed time for taking an appeal has been several times before this court. In French v. English, 7 Neb. 124, the transcript was not filed within the period prescribed for taking appeals, and a motion to dismiss for want of jurisdiction was sustained. To the same effect, see Clark v. Morgan & Co., 21 Neb. 673, 33 N. W. 245;Patterson v. Woodland, 28 Neb. 250, 44 N. W. 112;Record v. Butters, 42 Neb. 786, 60 N. W. 1019;Renard v. Thomas, 50 Neb. 398, 69 N. W. 932. In Allis v. Newman, 29 Neb. 207, 45 N. W. 621, the failure to file the appeal within the time prescribed was due to the fault of an officer of the court. The motion to dismiss was overruled; the court saying that a party will not be permitted to suffer through the omission of an officer of the court. This case was later disapproved in Stull v. Cass County, 51 Neb. 760, 71 N. W. 777. In that case the transcript was not filed within the time prescribed. The attorneys for the respective parties stipulated:
“All objections as to service of this bill of exceptions out of time and filing of same in Supreme Court after one year since trial of case are waived, as court reporter was unable to furnish it in time for regular service and filing in Supreme Court in the time required, and at time of service was mislaid by the county attorney and found to-day.”
The case was dismissed for want of jurisdiction. The court in commenting upon the stipulation used this language:
“The foregoing did not excuse the failure to file a certified transcript of the pleadings and judgment within the statutory period, since it only purported to waive the filing of the bill
[178 N.W. 824]
of exceptions out of time. Moreover, jurisdiction of the subject-matter cannot be conferred by the stipulation or agreement of parties. The statute is mandatory as regards the time of taking appeals and proceedings in error, and the time for doing so cannot be extended by agreement of the parties. * * * We are aware that this statement is opposed to Allis v. Newman, 29 Neb. 207, but the decision therein is in conflict with the numerous adjudications of this court in other cases. See Sturtevant v. Wineland, 22 Neb. 702;Schuyler v. Hanna, 28 Neb. 601;Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891;Fitzgerald v. Brandt, 36 Neb. 683;Moore v. Waterman, 40 Neb. 498;Record v. Butters, 42 Neb. 786;Renard v. Thomas, 50 Neb. 398. The decisions in these cases are followed, and that in Allis v. Newman, supra, disapproved.”
In Kock v. State, 73 Neb. 354, 102 N. W. 768, the transcript was not filed within the statutory time allowed for appeals. The question of jurisdiction was raised in the brief. In commenting upon the question of jurisdiction, the court said:
“So it is clear that we are without any jurisdiction to review the proceedings and judgment of the trial court herein. This is to be regretted, for the reason that the sentence in this case seems so excessive, considering the value of the property alleged to have been stolen, as to be almost unconscionable. If we were at liberty to assume jurisdiction of this case, we would, under the power given us by section 509a of the Code, reduce the sentence to a period of two years. Having no jurisdiction, we cannot grant the accused any relief, and he must resort to executive clemency.”
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