Armstrong v. Higgins

491 N.W.2d 331, 241 Neb. 833, 1992 Neb. LEXIS 320
CourtNebraska Supreme Court
DecidedNovember 6, 1992
DocketS-89-1257
StatusPublished
Cited by4 cases

This text of 491 N.W.2d 331 (Armstrong v. Higgins) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Higgins, 491 N.W.2d 331, 241 Neb. 833, 1992 Neb. LEXIS 320 (Neb. 1992).

Opinions

Fahrnbruch,J.

The only issue in this appeal is whether the district court for Sheridan County correctly held that it lacked jurisdiction to review the revocation of Quinn Armstrong’s driver’s license by the defendant, Margaret Higgins, director of the Department of Motor Vehicles of the State of Nebraska. We reverse the district court’s order of dismissal and remand the cause with directions.

Following a May 3, 1989, hearing, the director entered a written order on June 1, finding (1) that Armstrong was arrested on December 18,1988, by a Gordon, Nebraska, police officer for operating a motor vehicle while under the influence of intoxicating liquor; (2) that prior to Armstrong’s arrest, the arresting officer had reasonable grounds to believe that Armstrong was operating a motor vehicle upon a public highway in this state while under the influence of intoxicating liquor; (3) that Armstrong was informed of Nebraska’s implied consent law, Neb. Rev. Stat. § 39-669.08 (Reissue 1988); and (4) that when requested to submit to a chemical test of blood, breath, or urine, Armstrong unreasonably refused to submit to a test.

Section 39-669.08, commonly known as the implied consent [834]*834law, provides that any individual who operates or has physical control over a motor vehicle upon a public highway in Nebraska is deemed to have consented to a chemical test of his or her blood, urine, or breath for the purpose of determining alcoholic content of that blood, urine, or breath. This statute authorizes any law enforcement officer to request such a test in various situations if the officer has reasonable grounds to believe an individual has been operating a motor vehicle upon a public highway while under the influence of alcoholic liquor. At all times relevant herein, refusal to submit to such a test subjected a motor vehicle operator to administrative revocation of his or her driver’s license, as provided in Neb. Rev. Stat. §§ 39-669.07 to 39-669.09 and 39-669.14 to 39-669.17 (Reissue 1988) and Neb. Rev. Stat. § 39-669.18 (Reissue 1984).

In her June 1 order, Higgins, pursuant to § 39-669.16, revoked Armstrong’s motor vehicle operator’s license for 1 year.

On June 20, 1989, pursuant to Neb. Rev. Stat. § 60-420 (.Reissue 1984), Armstrong filed a petition in the district court for Sheridan County, appealing the revocation of his driver’s license by Higgins. Higgins filed an answer on July 24, 1989, although service of summons had not yet been made upon her.

On August 8, the district court, on its own motion, issued an order for Armstrong to show cause why his appeal should not be dismissed for lack of jurisdiction because answer day had passed and no transcript had been filed. Lack of subject matter jurisdiction may be raised sua sponte by a court if necessary. See Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991).

On August 21, Armstrong responded by filing a showing of cause and a transcript of the administrative proceedings. He admitted that a praecipe for service upon the defendant had not been filed to commence the running of the answer date time. See Neb. Rev. Stat. § 25-821 (Reissue 1989). Armstrong pointed out that copies of pleadings were sent to the defendant and that the defendant had answered the petition on appeal.

On August 23, the district court found that Armstrong had failed to show cause why his appeal should not be dismissed for lack of jurisdiction. The court found that it had no jurisdiction [835]*835to hear Armstrong’s appeal and dismissed it. The jurisdictional defect the court relied upon was not set forth in its order of dismissal.

On August 29, Armstrong filed a motion asking the district court to modify its dismissal order or to grant a new trial. A hearing on Armstrong’s motion was held on September 12. On September 13, a copy of Armstrong’s petition on appeal and a summons were served upon the defendant. On September 19, the district court overruled Armstrong’s motion to modify the court’s order or to grant him a new trial. Armstrong correctly argues that the provisions of the Administrative Procedure Act, Neb. Rev. Stat. § 84-901 et seq. (Reissue 1987), did not apply to appeals of driver’s license revocations until July 1, 1989, the effective date of an amendment to § 60-420. The amendment made the Administrative Procedure Act expressly applicable.

Armstrong contends that his appeal should be governed by the rules of civil procedure, that (1) Neb. Rev. Stat. § 25-217 (Reissue 1989) only requires that he serve a summons upon the defendant within 6 months after the filing of his appeal petition, and (2) under § 60-420 (Reissue 1984) and § 25-821, he was only required to file the transcript of the proceedings within 30 days after service of summons upon the defendant.

Higgins contends that the Administrative Procedure Act as it existed at all relevant times herein is applicable to Armstrong’s appeal. She argues that under § 84-917(2) (Reissue 1987), Armstrong had only 30 days to serve the defendant following the filing of his appeal petition. She claims that the district court was without jurisdiction both because Armstrong had failed to timely serve a summons upon the director and because Armstrong’s transcript was not timely filed.

Armstrong appealed his driver’s license revocation under the implied consent law pursuant to § 39-669.18 (Reissue 1984), the statute in effect at the time of the appeal. That statute provided in part that “[a]ny person who feels himself aggrieved because of such revocation may appeal... in the manner prescribed in section 60-420.”

Higgins mistakenly relies upon Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d 615 (1982), as authority that § 60-420 must be read in conjunction with § 84-917(2) to [836]*836determine the proper procedure for perfecting an appeal in Armstrong’s case. Leach was decided under § 84-917 (Reissue 1981), which was amended in 1983 and 1987. As § 84-917(7) (Reissue 1987) existed at all relevant times herein, it provided: “The review provided by this section shall not be available in any case where other provisions of law prescribe the method of appeal.” (Emphasis supplied.) Because of this amendment, § 60-420 provided the exclusive method of appeal in Armstrong’s case, and our review is controlled by that section. See Ernest v. Jensen, 226 Neb. 759, 415 N.W.2d 121 (1987).

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Armstrong v. Higgins
491 N.W.2d 331 (Nebraska Supreme Court, 1992)

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Bluebook (online)
491 N.W.2d 331, 241 Neb. 833, 1992 Neb. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-higgins-neb-1992.