Stewart v. Ress
| Decision Date | 28 June 1957 |
| Docket Number | No. 34196,34196 |
| Parties | Donald A. STEWART, Appellee, v. L. N. RESS, State Engineer of the State of Nebraska, et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An accused, by making a plea of guilty, waives all defenses except that the complaint or information is not sufficient to charge an offense.
2. A plea of guilty accepted by the court is a conviction or the equivalent of a conviction of the highest order. The effect of it is to authorize the imposition of a sentence prescribed by law on a verdict of guilty of the crime charged.
3. It is the duty of the Director of Motor Vehicles, when it is disclosed by the records of his office that the holder of a license to operate a motor vehicle in this state has accumulated 12 or more points within any 2-year period, to revoke the license of such person for a period of at least 1 year from the date of his last conviction.
Clarence S. Beck, Atty. Gen., Ralph D. Nelson, Asst. Atty. Gen., for appellants.
Stewart & Stewart, Raymond K. Calkins, Lincoln, for appellee.
Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The object of this litigation is to secure an adjudication that the order of revocation made on September 26, 1956, by L. N. Ress, as the Director of Motor Vehicles, of the license issued to appellee authorizing him to operate a motor vehicle in Nebraska was void; to obtain a restraining order and an injunction; and general equitable relief.
Appellee asserted that the action taken in that regard by L. N. Ress as Director of Motor Vehicles, hereafter referred to as appellant, was unauthorized and ineffective because his files and records did not contain sufficient proof as specified by law to authorize him to suspend or revoke the license of appellee and that the files and records of the office of appellant did not disclose that appellee had accumulated a total of 12 or more points as described in the point system of the state dealing with traffic violations Sections 39-7,128 to 39-7,133, R.S.Supp., 1955. It was alleged that the files and records of appellant did show that the conviction for speeding on March 13, 1956, was of a person named Donald H. Stewart whereas the name of appellee is Donald A. Stewart and he has not been known by nor has he used the name of Donald H. Stewart; that the conviction for speeding on July 23, 1956, was of the holder of motor vehicle operator's license No. J2-1901 L whereas the driver's license of appellee was on that date No. J2-190 16; and that the alleged convictions on March 13, 1956, July 23, 1956, and September 11, 1956, were for speeding but evidence is lacking that the convictions were for speeding in violation of a municipal ordinance or statutory prohibition as is required by statute.
The hearing of the application of appellee for a restraining order was set by the district court for 10 a. m., October 20, 1956. The order revoking the license of appellee was canceled by appellant October 19, 1956. A second order of revocation of the license of appellee was made on that date and notice thereof to appellee was then mailed to him. Appellee and his counsel learned from the attorney for appellant of the cancellation of the first order of revocation and the making of the second when they appeared for the hearing on October 20, 1956. Appellee filed a supplemental petition asserting reasons why the second order of revocation of his license was void. This order of revocation was canceled by appellant December 3, 1956. A third order of revocation of the license of appellee for 1 year from September 11, 1956, was made December 3, 1956, and notice thereof was given to appellee on December 4, 1956.
The answer of appellant to the petition of appellee, filed November 19, 1956, contained a denial and an allegation that appellant made an order October 19, 1956, revoking the license of appellee and notice thereof was given him October 20, 1956; and that appellee surrendered his license to appellant on demand therefor October 1, 1956.
The cause was tried to the district court December 12, 1956, on the petition of appellee, the answer of appellant, and the supplemental petition of appellee. There was no mention in the pleadings at that time of the order of revocation of the license of appellee made on December 3, 1956. At the conclusion of the trial on December 12, 1956, the court gave appellant leave to make answer to the supplemental petition which was done on December 19, 1956, and permission to appellee to reply to the answer of appellant which was done on December 29, 1956.
The answer of appellant to the supplemental petition alleged that appellant revoked the license of appellee December 3, 1956, by authority of section 39-7,129, R.S.Supp., 1955, because he had been convicted of speeding on July 7, 1955, in violation of section 39-723, R.R.S.1943 , in the justice of the peace court in Fairbury; on March 13, 1956, in violation of a city ordinance of the city of Lincoln in the municipal court of that city; on July 24, 1956, in violation of an ordinance of the city of North Platte in the police court of that city; and on September 11, 1956, in violation of a city ordinance of the city of Lincoln in the municipal court of that city. The answer further alleged that appellee pleaded guilty to each of the charges of speeding as aforesaid and that he surrendered his license to appellant on his demand therefor on October 1, 1956. Appellee by reply denied the new matter of the answer of appellant.
The district court found generally for appellee, granted an injunction enjoining appellants from retaining the license of appellee or from interfering with his use and enjoyment of it, ordered appellants to return the license to appellee and to expunge from the records of the Director of Motor Vehicles any showing appearing therein concerning any of the alleged four convictions of appellee for speeding, and set aside and annulled the action taken by appellants in reliance on the four alleged convictions of appellee for speeding. A motion for a new trial was denied. The subject of this appeal is the judgment and denial of a new trial.
The material circumstances of this case are few. There is no conflict of evidence concerning them. The record contains proof to this effect:
Appellee was charged in the justice of the peace court in Fairbury, Nebraska, with operating a motor vehicle on June 24, 1955, at a speed in excess of that allowed by and in violation of section 39-723, R.R.S.1943. A hearing thereon was...
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State v. Gilliam
...408 (10th ed. 2014).34 Webster's Third New International Dictionary of the English Language, Unabridged 499 (1993).35 Stewart v. Ress, 164 Neb. 876, 881, 83 N.W.2d 901, 904 (1957). See, also, State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004) ; State v. Ondrak, 212 Neb. 840, 326 N.W.2d 188 (......
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State v. Schulz
...State v. Long, 205 Neb. 252, 286 N.W.2d 772 (1980); In re Interest of Wolkow, 206 Neb. 512, 293 N.W.2d 851 (1980). Stewart v. Ress, 164 Neb. 876, 83 N.W.2d 901 (1957), modified 165 Neb. 211, 85 N.W.2d 260, reached a similar result in connection with the revocation of one's operator's licens......
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State v. Hall, S-03-590.
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Jones v. Kirkman, 31352
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