First National Bank v. Mitchell

234 N.W.2d 220, 194 Neb. 628, 1975 Neb. LEXIS 872

• Court: Nebraska Supreme Court
• Decided: October 30, 1975
• Docket: No. 40016
• Status: Published

Opinion

Boslaugh, J.

This is an appeal in an action for forcible entry and detainer which was commenced in the municipal court of the City of Omaha, Nebraska, on October 9, 1973. A judgment in favor of the plaintiff was entered on December 5, 1973. The defendants filed a notice of appeal and an appeal bond in the municipal court and a transcript of the proceedings in the District Court on January 7, 1974.

The plaintiff, who is the appellee in this court, has moved to dismiss the appeal on the ground that the District Court did not acquire jurisdiction because the transcript was not filed in that court within the time required by statute. If the District Court did not have jurisdiction of the appeal from the municipal court, then this court can not acquire jurisdiction. Anania v. City of Omaha, 170 Neb. 160, 102 N. W. 2d 49.

Section 24-544, R. S. Supp., 1974, requires the transcript to be filed within 30 days from the entry of judgment in the lower court. Filing of the transcript constitutes filing of the appeal with the District Court. This requirement is mandatory and unless the appellant is prevented from complying with the statute because of some default of the lower court the District Court acquires no jurisdiction. See Lynde v. Wurtz, 147 Neb. 454, 23 N. W. 2d 703.

The last day for filing the transcript in the District Court in this case was January 4, 1974. There is no showing that the appellants were prevented from complying with the statute by any default of the court. The filing was out of time and the District Court acquired no jurisdiction of the appeal. The appeal to this court, must, therefore, be dismissed.

Appeal dismissed.