Nebraska Supreme Court, 1965

Campbell v. City of Ogallala

Nebraska Supreme Court · Decided April 16, 1965 · Boslaugh, Brower, Carter, McCo, Smith, Spencer, White

178 Neb. 663; 134 N.W.2d 597; 1965 Neb. LEXIS 553

Cases that cite this one

1 later published case cites this decision.

School District v. State Board of Education (Neb. 1970)

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Opinion of the Court

Smith, J.

A summons failed to notify defendants that the petition which had been filed against them was a petition in error. The phrase “in error” was also omitted from the praecipe. The district court sustained a special appearance and dismissed the proceeding in error.

The phrase is said to be a jurisdictional feature of the statutes. “* * * The summons shall notify the adverse party that a petition in error has been filed * * *.” § 25-1903, R. R. S. 1943. “The summons * * * shall, upon * * * written praecipe * * *, be issued * * *.” § 25-1904, R.'R. S. 1943.

The omission was a noncompliance with a directory *664provision; i. e., the jurisdictional requirements do not include this phrase. See, From v. Sutton, 156 Neb. 411, 56 N. W. 2d 441; cf. Keil v. Farmers Irr. Dist., 119 Neb. 503, 229 N. W. 898. The defect was formal.

The judgment should be and is reversed, and the cause is remanded.

Reversed and remanded.

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