Sullivan v. Storz

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before SIMMONS; SIMMONS
• Citation: Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499, 34 A.L.R.2d 1142 (Neb. 1952)
• Decision Date: 07 November 1952
• Docket Number: No. 33210,33210
• Parties: , 34 A.L.R.2d 1142 SULLIVAN v. STORZ.

Page 499

55 N.W.2d 499

156 Neb. 177, 34 A.L.R.2d 1142

SULLIVAN v. STORZ.

No. 33210.

Supreme Court of Nebraska.

Nov. 7, 1952.

Syllabus by the Court.

1. An order affecting a substantial right, when made in a special proceeding, is a final order and is appealable, even though it does not terminate the action, nor constitute a final disposition of the case.

2. A special proceeding may be said to include every special statutory remedy which is not in itself an action.

3. A substantial right is an essential legal right as distinguished from a mere technical one.

4. Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term 'special proceeding.'

5. A proceeding may be special, within the meaning of the statute governing appeals, although connected with a pending action.

6. Our Constitution provides: All courts shall be open, and every person, for any injury done him in his lands, goods, person or reputation, shall have a remedy by due course of law, and justice administered without denial or delay. This provision is self-executing and controlling, paramount and mandatory upon all courts of this state.

7. Section 521, 50 U.S.C.A., Appendix, of the Soldiers' and Sailors' Civil Relief Act cannot be construed to require a continuance on a mere showing that the defendant was in the military service.

8. The act leaves it to the discretion of the court as to what party must come forward with the facts needed to determine whether or not the ability of a party to present his cause is materially affected by reason of his military service.

9. The power to stay, granted by the act, does not imply a power to stay anticipating that at some future time in the litigation's progress the ability of the service man to prosecute or defend may be materially affected by reason of his military service.

10. The act clearly requires that there be a present and not a mere anticipatory danger.

James R. McGreevy and John C. Mullen, Omaha, for appellant.

Munger & Rhodes, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action based upon alleged breach of promise of marriage and seduction. The trial court granted a continuance under the provisions of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A., Appendix, § 521, p. 545. Plaintiff appeals contending that the granting of the continuance was error. Defendant presents the question that the order made is not appealable. We sustain plaintiff's contention and deny that of defendant.

This action began by the filing of a petition on September 11, 1950. Motions were made and ruled upon. An answer denying generally was filed November 25, 1950, and a reply filed on the same date.

On April 25, 1951, plaintiff filed an application that the case be set for trial to a jury.

On April 27, 1951, the defendant filed an application for stay. It recited that he had been ordered to report for and had entered active military service on March 13, 1951. He attached to the application a copy of his orders to report for duty at Offutt Air Force Base, Omaha. The order indicates that his active duty was to be for a period of 21 months.

He attached also the affidavit of his attorney reciting that it was indispensable that the defendant be present and testify at the trial of this action, and be present to assist in the preparation for trial; that the defendant was subject to orders as a pilot on flying status with the Strategic Air Command which made him unavailable as a party and as a witness in the near future, or during the period of the present emergency; and that he would be materially prejudiced if the stay of proceedings was not granted.

Thereafter on May 8, 1951, the court entered an order staying the proceedings for the period of the active military service of the defendant, and for three months thereafter, or until the further order of the Court.

On December 3, 1951 the matter was taken up on oral motion to vacate the order for the stay, evidence was taken, and the matter continued for further hearing.

On January 16, 1952, plaintiff filed a written motion to set aside the order staying the trial and to set the case for trial. Plaintiff recited in her motion that defendant was stationed at Offutt Air Force Base in Douglas County, and was living with his family in Omaha, Douglas County. It appears that this motion was actually drawn and a copy served upon defendant's attorney on November 16, 1951. On March 12, 1952, the trial court denied the motion. Motion for new trial and hearing was filed on that date, and overruled on March 18, 1952.

Section 521 of the Soldiers' and Sailors' Civil Relief Act, supra, provides: 'At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act (sections 501-548 and 560-590 of this Appendix), unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.'

Section 524 of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A., appendix, p. 577, provides in part: 'Any stay of any action, proceeding, attachment, or execution, ordered by any court under the provisions of this Act (sections 501-548 and 560-590 of this Appendix) may, except as otherwise provided, be ordered for the period of military service and three months thereafter or any part of such period, and subject to such terms as may be just, whether as to payment in installments of such amounts and at such times as the court may fix or otherwise.'

Our section 25-1902, R.R.S.1943, provides: 'An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a 'final order' which may be vacated, modified or reversed, as provided in this chapter.' Section 25-1911, R.R.S.1943, provides: 'A judgment rendered or final order made by the district court may be reversed, vacated or modified by the Suppreme Court for errors appearing on the record.'

The question then comes: Is the order here involved 'an order affecting a substantial right made in a special proceeding' and as such an order from which an appeal may be taken?

We have recently restated the rules construing section 25-1902, supra, as follows: An order affecting a substantial right, when made in a special proceeding is a final order and is appealable, even though it does not terminate the action, nor constitute a final disposition of the case. A special proceeding may be said to include every special statutory remedy which is not in itself an action. A substantial right is an essential legal right as distinguished from a mere technical one. Western Smelting & Refining Co. v. First Nat. Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116.

It has also been held that: 'Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is special, within the ordinary meaning of the term 'special proceeding." Schuster v. Schuster, 84 Minn. 403, 87 N.W. 1014, 1015. See, also, Nelson v. Steele, 12 Idaho 762, 88 P. 95; Harryman v. Bowlin, 153 Okl. 202, 4 P.2d 1011; Deppe v. Ford, 89 Minn. 253, 94 N.W. 679; State v. Rosenwald Bros. Co., 23 N.M. 578, 170 P. 42.

The Supreme Court of Wyoming construing statutes substantially identical with ours held: '* * * a proceeding may be special, within the meaning of the statute governing appeals, although connected with a pending action * * *.' Anderson v. Englehart, 18 Wyo. 196, 105 P. 571, 575.

We think it clear that the order here involved is one made in a special proceeding. That it affects a substantial right of the plaintiff is also clear. The right to a trial without unreasonable and unnecessary delay is as old as Magna Charta. Our Constitution, Article I, section 13, provides: 'All courts shall be open, and every person, for any injury done him in his lands, goods, person or reputation, shall have a remedy by due course of law, and justice administered without denial or delay.' This provision is self executing and controlling, paramount and mandatory upon all courts of this state. Burnham v. Benison, 121 Neb. 291, 236 N.W. 745. We hold that the order here involved is an appealable order.

This brings us to the issue presented by plaintiff.

It is clear from this record that this suit was commenced and at issue for some time prior to defendant's call to active duty in the military service and that during that time and since, he has had the service of counsel in his home city.

The affidavit made by defendant's counsel as of April 27, 1951, except as to the fact of the defendant's military service, states the mere conclusions of the affiant. This likewise...