Swansen v. Swansen
| Citation | 12 Neb. 210,10 N.W. 713 |
| Parties | SWANSEN v. SWANSEN. |
| Decision Date | 07 December 1881 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Error from Dodge county.
W. A. Marshall, for plaintiff.
Marlow & Munger, for defendant.
On the eighteenth day of November, 1880, the defendant in error obtained a decree of divorce from the plaintiff in the district court of Dodge county. The court also awarded $250 to said defendant as alimony, and decreed that the same be a lien on the real estate of the plaintiff. On the twenty-seventh day of July, 1881, a transcript of the proceedings in the district court and a petition in error were filed in this court. The attorney for the defendant now moves to strike out of the petition in error the second, third, fourth and fifth assignments, upon the ground that the errors assigned therein cannot be considered, as no motion for a new trial was made in the court below. The record shows that no motion for a new trial was made, and none of the alleged errors brought to the attention of the trial court. This was necessary in order to have a review of the proceedings of the court below by petition in error. The motion, however, is to correct the proceedings, and it is not necessary to raise an objection to a vital defect in a petition, like a failure to state a cause of action. This may be taken advantage of at any time, no motion for that purpose being necessary. In our dual system of practice an appeal in actions in equity may be taken to the supreme court from a final decree in the district court at any time within six months from the rendition of the decree, and no motion for a new trial is necessary; while in actions at law and equity cases, taken on error to the supreme court, a motion for a new trial, containing the errors complained of, must have been filed and acted upon by the trial court. Cutler v. Roberts, 7 Neb. 9;Midland R. Co. v. McCartney, Id. 406; Mills v. Miller, 2 Neb. 317;Wells v. Preston, 3 Neb. 446;Cropsey v. Wiggenhorn, Id. 117; Singleton v. Boyle, 4 Neb. 11. The petition in error is to be filed within one year after the date of rendition of the final judgment. It is desirable, perhaps, that the procedure should be the same in law and equity cases, and certainly no discrimination should be made in the time of filing transcripts in this court. But this is a consideration to be addressed to the legislature. As there was no motion filed in the court below, the motion to strike out must be sustained.
The only question, therefore, to be considered, is the sufficiency of the petition to sustain the judgment. In our opinion the petition is sufficient to sustain...
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Cain v. Miller
... ... counsel to maintain the other view ... Are ... these decisions sound? After it had been held in Swansen ... v. Swansen, 12 Neb. 210, 10 N.W. 713, that, as the ... statute then stood, a decree for alimony did not constitute a ... lien on real estate, ... ...
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Douglas County v. Barker Company
...Civil Code then existing, an appeal in actions in equity was provided in which no motion for a new trial was necessary. Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713; Smith v. Silver, 58 Neb. 429, 78 N.W. Section 1, ch. 174, Laws 1905, was next enacted, which, except as to the time limited f......
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State ex rel. Spillman v. Farmers' State Bank of Adams
...for a new trial was not filed. But a receivership is an equity proceeding. 2 Smith, Receivers (Tardy) (2d Ed.) § 593. In Swansen v. Swansen, 12 Neb. 210, 10 N. W. 713, in an opinion by Judge Maxwell, this court held: “An appeal in equity causes will lie to the Supreme Court from a final ord......
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Barnd v. Hunt
...to remand it to the judgment of the district court, for the want of a motion for a new trial there, is overruled. It was held in Swansen's Case, 12 Neb. 210, 10 N. W. Rep. 713, that “an appeal in equity cases will lie to this court from a final order or judgment of the district court, in wh......