Gebhart v. Tri-State Generation & Transmission Ass'n
Gebhart v. Tri-State Generation & Transmission Ass'n
Opinion of the Court
This is an eminent domain action.
Defendant, Tri-State Generation and Transmission Association, Inc., brought an action in the county court of Perkins, County, Nebraska, to acquire a right-of-way for an electric transmission line over and across the farm of plaintiffs. Appraisers were duly appointed and
Defendant appeals, to this court and assigns as error first, the dismissal of plaintiffs’ appeal and second, the dismissal of defendant’s cross-appeal.
Regarding the voluntary dismissal by plaintiffs of their appeal, it is well settled that a plaintiff may enter a dismissal as a matter of right at any time before final submission of the case. Giesler v. City of Omaha, 175 Neb. 706, 123 N. W. 2d 650; § 25-601, R. R. S. 1943.
Defendant contends, that its cross-appeal could not be dismissed without its consent. Plaintiffs, in reply, state that an appeal was not completed by defendant because of its failure to. post appeal bond as provided by section 76-716, R. R. S. 1943. It will be noted that although pleadings had been filed following the appeal to the district court, defendant filed an answer, but nothing in the nature of a cross-petition. Ordinarily, when an action is pending in the district court a dismissal of the petition, or of plaintiffs’ action, dismisses, the entire cause except where something in the nature of a set-off or counterclaim has been presented by defendant as contemplated in section 25-603, R. R. S. 1943. No such pleading appears in this cause. It is apparent that dismissal of plaintiffs’ petition on appeal resulted in a dismissal of the entire cause unless a valid cross-appeal had been perfected by defendant. It is, therefore, necessary to examine the nature of a so-called cross-appeal. What is a cross-appeal? Essentially it is simply an
The judgment of the district court is affirmed.
Affirmed.
Reference
- Full Case Name
- Ralph Gebhart v. Tri-State Generation and Transmission Association, Inc.
- Cited By
- 3 cases
- Status
- Published