Stigge v. Graves
| Decision Date | 01 April 1983 |
| Docket Number | No. 81-838,81-838 |
| Citation | 332 N.W.2d 49,213 Neb. 847 |
| Parties | , 10 Ed. Law Rep. 372 Alvin H. STIGGE et al., Appellants, v. Margaret M. GRAVES, County Superintendent, Cuming County, Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings. The character of a pleading is determined by its content, not by its caption.
2. Appeal Bonds. Where an appeal bond is given within the proper time, even if defective, the court has obtained jurisdiction, and the proper procedure is for the adverse party to move to compel the appellant to give a proper bond in an amount and conditioned as required by law.
3. Appeal Bond. If the appellant fails to comply with an order requiring that a new or amended bond be furnished, the appeal may be dismissed.
4. Appeal Bond. The filing of an appeal bond is a "proceeding" as used in Neb.Rev.Stat. §§ 25-852 and 25-853 (Reissue 1979), and the right to amend an appeal bond is within the purview of those sections.
John M. Thor of Grady, Caskey & Thor, Wisner, for appellants.
John D. Feller, Cuming County Atty., Beemer, for appellee.
The defendant county superintendent of schools entered an order dissolving a school district. The plaintiff landowners filed a petition on appeal in the District Court for Cuming County. The District Court sustained a demurrer to plaintiffs' petition on appeal on the ground that the court was without jurisdiction to hear the appeal, and dismissed the petition. This appeal followed.
On June 2, 1981, the defendant, Margaret Graves, superintendent of schools of Cuming County, entered an order dissolving school district No. 3 under the provisions of Neb.Rev.Stat. § 79-420 (Reissue 1981).
On June 11, 1981, the plaintiff landowners filed their petition in the District Court for Cuming County requesting an appellate review of the defendant's order. On the same day the plaintiffs deposited $50 cash in the District Court and also filed in the District Court (1) a copy of a notice of appeal addressed to the defendant superintendent notifying her that the plaintiffs intended to appeal to the District Court from her order of June 2; (2) a copy of a bond for appeal, signed on behalf of plaintiffs, undertaking to the defendant superintendent, in the sum of a $50 cash bond, conditioned that the plaintiffs would prosecute their appeal to effect and without unnecessary delay and that if judgment be adjudicated against them on appeal they would satisfy such judgment and costs; and (3) a copy of a praecipe for transcript addressed to the clerk of the District Court and to the defendant superintendent requesting the preparation of a certified transcript of the proceedings undertaken by her, inclusive of all documents in her possession and filed relevant to the order.
In addition to filing the notice of appeal, appeal bond, and praecipe for transcript in the District Court, a duplicate copy of each of the three documents was delivered to the defendant personally on June 12, 1981, by the sheriff of Cuming County. Summons was also served on defendant at the same time, notifying her that plaintiffs sought appellate review of her order of June 2, 1981, and an order of the District Court determining that the defendant had no legal authority to dissolve the school district, and declaring the order void and vacating it.
The defendant superintendent prepared and delivered a transcript which was filed in the District Court within 30 days, but the transcript did not contain copies of the praecipe for transcript, notice of appeal, or bond for appeal.
Thereafter, the defendant superintendent demurred to the plaintiffs' petition on the ground that the District Court did not have jurisdiction of the appeal.
On September 3, 1981, the District Court found that it did not have jurisdiction over the appeal because of a failure of plaintiffs to file a notice of appeal and bond for appeal as required by law, sustained the defendant's demurrer, and dismissed plaintiffs' petition.
On September 8, 1981, plaintiffs filed a motion for new trial and a motion for leave of court to amend the bond on appeal if the bond was found to be defective. On November 5, 1981, the District Court overruled plaintiffs' motion for a new trial but did not sustain or deny the motion for leave to amend the bond. Plaintiffs have appealed.
The defendant contends that the notice of appeal, the bond for appeal, and the praecipe for transcript were not "filed" with her but were only delivered to or served on her. She also contends that the $50 cash deposit was made with the clerk of the District Court rather than with her and that she has never approved any surety on the bond for appeal. For these reasons she argues that plaintiffs have failed to comply with the statutory requirements for appeal and that the District Court did not acquire jurisdiction. It is undisputed that the documents were submitted within the statutory time and contained the statutorily defined provisions if they were properly "filed."
The statute under which the defendant acted in issuing the order of June 2, 1981, provides that appeals from the action of the county superintendent may be made to the District Court of the county of the official concerned, but provides no procedure. See § 79-420.
Neb.Rev.Stat. § 25-1937 (Reissue 1979) provides in part:
The statutes governing appeals from county court to District Court in effect at the time of this proceeding were Neb.Rev.Stat. §§ 24-541 et seq. (Reissue 1979). Section 24-542 requires that the party appealing from a decree, judgment, or order of a county court shall, within 10 days of the rendition of judgment, file a notice of appeal with the county court, specifying the parties taking the appeal, and the decree, order, or judgment, or part thereof, appealed from.
Section 24-543 requires that the party appealing, within 10 days from the rendition of judgment, shall post a cash bond with the clerk of the court or enter into an undertaking to the adverse party, with at least one good and sufficient surety to be approved by the court, in a sum not less than $50 in any case, nor less than the amount of the judgment and costs, conditioned that the appellant will prosecute his appeal to effect and without unnecessary delay, and that if judgment be adjudged against him on the appeal he will satisfy such judgment and costs.
...
To continue reading
Request your trial
-
Kowalewski v. Madison Cnty. Bd. of Comm'rs
...and the clerk should have applied $1 from that bond to the filing fee.In support of this contention, the Kowalewskis direct us to Stigge v. Graves4 and In re Application of Olmer ( Olmer ).5 In Stigge , the appellant was appealing under the prior versions of §§ 25-1937 and 25-2729 from an o......
-
Kowalewski v. Madison Cnty. Bd. of Comm'rs
...809, 950 N.W.2d 625 (2020); Great Northern Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020). [4]Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (1983). [5]In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008). [6]Id. at 860, 752 N.W.2d at 130. [7]See Baker-Hes......
-
Kowalewski v. Madison Cnty. Bd. of Comm'rs
...and the clerk should have applied $1 from that bond to the filing fee. In support of this contention, the Kowalewskis direct us to Stigge v. Graves[4] and In re Application of Olmer (Olmer).[5]In Stigge, the appellant was appealing under the prior versions of §§ 25-1937 and 25-2729 from an ......
-
Estate of Krueger, In re
...of the brother's assignments of error. The character of a pleading is determined by its content, not by its caption. Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (1983). A docket fee was deposited by the brother. The county court did not require a cash bond or undertaking for the appeal. S......