Groene v. Commissioner of Labor

421 N.W.2d 31, 228 Neb. 53, 1988 Neb. LEXIS 98

• Court: Nebraska Supreme Court
• Decided: March 25, 1988
• Docket: No. 87-580
• Status: Published

Opinion

Per Curiam.

The petitioner, Dr. James P. Groene, has appealed from the order of the district court affirming the order of the Commissioner of Labor.

The principal issue in this case is whether the persons working in the petitioner’s chiropractic office are employees or independent contractors. The issue is one of fact to be determined in accordance with the requirements of Neb. Rev. Stat. § 48-604(5) (Cum. Supp. 1986). In order for petitioner to prevail, the evidence must show that the petitioner satisfied all three requirements of the statute. Commissioner of Labor v. Lyric Co., 224 Neb. 190, 397 N.W.2d 32 (1986). To review a determination of fact, a bill of exceptions containing the evidence before the lower court must be filed in this court. Johnson v. Johnson, 224 Neb. 159, 396 N.W.2d 284 (1986), modified 224 Neb. 811, 401 N.W.2d 506 (1987).

A bill of exceptions has not been filed in this court, and the transcript fails to show that a bill of exceptions was ever filed in the district court. In the absence of a bill of exceptions, the judgment of the trial court will be affirmed if the pleadings support the judgment. In re Estate of Kesting, 220 Neb. 524, 371 N.W.2d 107 (1985).

In the petitioner’s brief there is some reference to a possible constitutional question. In order for a constitutional question to be considered, Neb. Ct. R. of Prac. 16A (rev. 1986) requires that a notice of a constitutional question be filed with the brief. Livestock Carriers Div. of M. C. Assn. v. Midwest Packers Traf. Assn., 191 Neb. 1, 213 N.W.2d 443 (1973) (Boslaugh, J., concurring). The record fails to show compliance with this rule.

Since the pleadings support the judgment of the district court, it is affirmed.

Affirmed.