State Ex Rel. Kaipus v. Board of Trustees of Sanitary & Improvement District No. 113
State Ex Rel. Kaipus v. Board of Trustees of Sanitary & Improvement District No. 113
Opinion of the Court
This action originated with a petition for mandamus brought by the relators to compel respondent to repair and maintain a drainageway lying behind relators’ residence. The action was tried to the Dis
On May 9, 1975, relators filed a motion for an order requiring respondent to pay the $13,500 judgment. On June 19, 1975, respondent filed a motion for an order vacating the judgment for $13,500. Hearings were held on these two motions on September 19, 1975, and July 7, 1976. At the conclusion of the hearing on July 7th, the District Court announced its findings and decision in favor of the respondent on both motions. The relators’ judgment was to be reduced to $3,500. Counsel was directed to prepare and submit an appropriate order.
On July 16, 1976, the relators filed a motion for a new trial. On July 19, 1976, an order in the form of a second amended decree was presented to and signed by the District Court. On September 28, 1976, a hearing was held on relators’ motion for a new trial. On December 14, 1976, the District Court found that relators’ motion for a new trial was filed prematurely, before rendition of judgment; that it was of no force and effect; and ordered that it be stricken. On December 21, 1976, relators filed a second motion for a new trial which was overruled on February 1, 1977. Notice of appeal was filed on February 8, 1977. We conclude that we lack jurisdiction to entertain this appeal.
The situation at bar is governed by our recent pronouncement in Spanheimer Roofing & Supply Co. v. Thompson, 198 Neb. 710, 255 N. W. 2d 265 (1977). In that case, the District Court, after trial, announced its findings and decision in a letter dated June 23, 1976, to all counsel. Counsel for the prevailing party
The District Court’s journal entry on the docket of Wednesday, July 7, 1976, does not purport to be a decree or judgment in the case. It is captioned “ORDER.” Its full context is as follows:
“At request of defendant, court reopens hearing.
“Defendant presents evidence.
“Court announces general findings.
“Order to be submitted.”
This “ORDER” on the trial docket cannot be said to constitute the rendition of a judgment under our statutory scheme. § 25-1301, R. R. S. 1943; Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 Neb. 119, 241 N. W. 2d 541 (1976); Fritch v. Fritch, 191 Neb. 29, 213 N. W. 2d 445 (1973). Relators’ July 16, 1976, motion for a new trial was filed prematurely and was thus a nullity. Spanheimer Roofing & Supply Co. v. Thompson, supra. No effective motion for a new trial was filed within 10 days of the rendition of judgment, July 19, 1976. § 25-1143, R. R. S. 1943. No notice of appeal was filed within 1 month of that date. § 25-1912, R. R. S. 1943. Even if relators’ first motion for a new trial were arguably effective, it was ordered stricken on December 14, 1977. No notice of appeal was filed within 1 month of that date.
Relators did file a second motion for a new trial on December 21, 1977, alleging as error the striking of
The appeal is dismissed for want of jurisdiction.
Appeal dismissed.
Dissenting Opinion
dissenting.
We dissent for the reasons stated in our dissenting opinions in Spanheimer Roofing & Supply Co. v. Thompson, 198 Neb. 710, 255 N. W. 2d 265.
Reference
- Full Case Name
- State of Nebraska Ex Rel. Ronald D. Kaipus Et Al., Appellants, v. Board of Trustees of Sanitary and Improvement District No. 113 of Douglas County, Nebraska, Appellee
- Cited By
- 5 cases
- Status
- Published