Bree Bros. v. Firestine

120 N.W. 935, 84 Neb. 126, 1909 Neb. LEXIS 170

• Court: Nebraska Supreme Court
• Decided: April 13, 1909
• Docket: No. 15,656
• Status: Published

Opinion

Duffie, C.

This case Avas originally tried in justice court, tvhere judgment Avas entered against the defendant on the 27th day of June, 1907. On the 2d of July the defendant filed a bond for the purpose of appealing to the district court, which bond was duly approved. A transcript of the proceedings was ordered, but the justice failed to prepare the same, and such transcript was not filed in the district court until the 14th day of August, 1907. The district court, on motion of the plaintiff, dismissed the appeal for the reason that the transcript was not filed within 30 days from the rendering of the judgment. Defendant has appealed.

It appears from the evidence that a transcript was ordered in due time, and that the defendant called upon the justice three or four times within the 30 days allowed for an appeal, making inquiry for it. The justice before whom the case was tried was a witness, and gave as a reason for not preparing the transcript in time that he thought the case would be settled. It is quite evident that tlm failure to file the transcript in due time was not due to any negligence of the defendant, but arose through a failure of the justice to make out the transcript. Under these circumstances, the right of an appeal should not be denied. Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 68; Continental Building & Loan Ass’n v. Mills, 44 Neb. 136; Lincoln Brick & Tile Works v. Hall, 27 Neb. 874.

We recommend a reversal of the judgment and remanding the cause to the district court, with directions to award a trial of the case.

By the Court: For the reasons stated in the foregoing opinion, the judgment appealed from is reversed and the cause remanded to the district court, with directions to award a trial of the case.

Reversed.