Tootle, Hosea & Co. v. Shirey

• Decision Date: 18 November 1897
• Docket Number: 7584
• Parties: TOOTLE, HOSEA & CO. ET AL. v. ROBERT E. SHIREY
• Court: Nebraska Supreme Court

72 N.W. 1045

52 Neb. 674

TOOTLE, HOSEA & CO. ET AL. v. ROBERT E. SHIREY

No. 7584

Supreme Court of Nebraska

November 18, 1897

ERROR from the district court of Webster county. Tried below before GASLIN, J. Proceeding in error dismissed.

Proceedings DISMISSED.

George W. Barker, J. S. Gilham, and W. K. James, for plaintiffs in error.

James McNeny, contra.

OPINION

RYAN, C.

The petition in error in this case was filed in this court March 15, 1895, together with a transcript of the proceedings of the district court of Webster county. This petition in error correctly recites that the judgment sought to be reversed was rendered October 15, 1891. The interval between the rendition of the judgment and the filing of the petit on in error and transcript in this court was therefore three years and five months. The filing was therefore too late. (Hollenbeck v. Tarkington, 14 Neb. 430, 16 N.W. 472; Phenix Ins. Co. v. Swantkowski, 31 Neb. 245, 47 N.W. 917; Chapman v. Allen, 33 Neb. 129, 49 N.W. 926; Sturtevant v. Wineland, 22 Neb. 702, 36 N.W. 277; Clark v. Morgan, 21 Neb. 673, 33 N.W. 245; Benson v. Michael, 29 Neb. 131, 45 N.W. 276; Patterson v. Woodland, 28 Neb. 250, 44 N.W. 112; Stull v. Cass County, 51 Neb. 760, 71 N.W. 777.)

It seems that parties stipulated that, to subserve their own convenience, the record should be retained in Red Cloud until submission and that, meantime, such record should be regarded as having been filed. In so far as this is applicable to the facts of this case the provisions of section 592 of the Code of Civil Procedure, upon which depends the jurisdiction of this court, are as follows: "No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of." It is very clear that this express limitation of time cannot be enlarged by stip lation, for this would be violative of the rule that a waiver by consent cannot confer upon an appellate court jurisdiction of the subject-matter. (Brondberg v. Babbott, 14 Neb. 517, 16 N.W. 845; Union P. R. Co. v. Ogilvy, 18 Neb. 638, 26 N.W. 464.) The error proceedings are therefore

DISMISSED.