State, ex rel. Ayres v. Amsberry

• Decision Date: 29 June 1920
• Docket Number: 21212
• Citation: 178 N.W. 822,104 Neb. 273
• Parties: STATE, EX REL. FRED C. AYRES ET AL., APPELLANTS, v. DARIUS M. AMSBERRY, SECRETARY OF STATE, APPELLEE
• Court: Nebraska Supreme Court

178 N.W. 822

104 Neb. 273

STATE, EX REL. FRED C. AYRES ET AL., APPELLANTS, v. DARIUS M. AMSBERRY, SECRETARY OF STATE, APPELLEE

NO. 21212

Supreme Court of Nebraska

June 29, 1920

FORMER JUDGMENT VACATED, AND APPEAL DISMISSED.

DAY, J ALDRICH, J., DEAN, J., dissenting.

OPINION

DAY, J.

In our former opinion in this case, ante, p. 273, 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, ch 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 St. 1913, which has been repealed by chapter 86, Laws 1919, retaining, however, the exact language found in the original section, viz.: "Either party may appeal to the supreme court within ten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 VI, sec. 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 today." 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 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, 45 N.W. 621, but the decision therein is in conflict with the numerous adjudications of this court in other cases. See Sturtevant v. Wineland, 22 Neb. 702, 36 N.W. 277; Schuyler v. Hanna, 28 Neb. 601, 44 N.W. 731; Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N.W. 567; Fitzgerald v. Brandt, 36 Neb. 683, 54 N.W. 992; Moore v. Waterman, 40 Neb. 498, 58 N.W. 940; Record v. Butters, 42 Neb. 786, 60 N.W. 1019; Renard v. Thomas, 50 Neb. 398, 69 N.W. 932. 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."

In the case of Dirksen v. State, 86 Neb. 334, 125 N.W. 618, briefs were filed by both parties. The court of its own motion dismissed the proceedings in error because the transcript was filed after the time limited by law. It will thus be seen that we have uniformly held that jurisdiction of the subject-matter cannot be conferred by stipulation or consent of the parties, nor does the filing of briefs constitute a waiver. Nothing but the filing of a transcript in this court within the time prescribed can vest this court with jurisdiction of the subject-matter. No stipulation, consent, or waiver of the parties can take the place of the filing of the transcript. The case of Patterson v. Woodland, 28 Neb. 250, 44 N.W. 112, cited in our former opinion, is an authority supporting this opinion. In that case, it was said: "As the transcript and petition in error were filed after the expiration of a year from the rendition of the judgment, the right to prosecute error had ceased."

Lloyd v. Reynolds, 26 Neb. 63, 41 N.W. 1072, is readily distinguishable from the present case. In that case the transcript and petition in error were filed within the year (the time then prescribed), and the court would have jurisdiction of the subject-matter. After the year expired the parties stipulated waiving the issuance and service of summons. It was said: "The transcript and petition in error were properly filed in the court within the year, and the defendant could lawfully enter his appearance herein after the expiration of that time."

In Fromholz v. McGahey, 85 Neb. 205, 122 N.W. 879, it is said: "We have uniformly held that filing an unauthenticated transcript of a judgment of the district court did not give us jurisdiction of the controversy, but that the terms of the statute must be observed and a certified transcript of the judgment filed within the time limited by law." See, also, Snyder v. Norris, 59 Neb. 243; McDonald v. Grabow, 46 Neb. 406, 64 N.W. 1093; Moore v. Waterman, 40 Neb. 498, 58 N.W. 940. While it is a fact that in a few cases decided since the doctrine of Allis v. Newman was overruled it has been intimated that the default of an officer of the court might warrant an extension of time for filing an appeal, an examination of these cases discloses that such statements are merely inadvertent expressions and pure dictum, and it may further be said that since the decision in Stull v. Cass County, 51 Neb. 760, 71 N.W. 777, no appeal has ever been held in this court, unless the transcript was filed within the statutory time. To hold otherwise would be illogical. There is in this case no pretense that the relator was prevented from filing his transcript by the fault of any officer of the court.

The next question which suggests itself is whether the time of taking the appeal is to be governed by the provisions of chapter 159, Laws 1913, as amended by chapter 86, Laws 1919, which is the special statute relating to cases arising under the initiative and referendum act, or is it to be governed by section 8186, Rev. St. 1913, as amended by chapter 140, Laws 1917, which is the general statute relating to appeals. If the former, the appeal must be perfected in ten days, provided the word "may" as used therein means "must." If the latter, the appellant is given three months in which to appeal. That the legislature, by this act relating to the initiative and referendum, intended to prescribe a complete method of putting into practical effect the constitutional provision relating to the initiative and referendum, there can be no reasonable doubt. The language is clear and unambiguous. The act sets forth in detail the necessary steps to be taken...