Campbell v. City of Ogallala

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

Opinion

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 provision; 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.