Knoefler Honey Farms v. County of Sherman

225 N.W.2d 855, 193 Neb. 95
CourtNebraska Supreme Court
DecidedFebruary 6, 1975
Docket39456
StatusPublished
Cited by3 cases

This text of 225 N.W.2d 855 (Knoefler Honey Farms v. County of Sherman) 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
Knoefler Honey Farms v. County of Sherman, 225 N.W.2d 855, 193 Neb. 95 (Neb. 1975).

Opinion

225 N.W.2d 855 (1975)
193 Neb. 95

KNOEFLER HONEY FARMS, a Partnership, Appellant,
v.
COUNTY OF SHERMAN, State of Nebraska, BOARD OF EQUALIZATION, Appellee.

No. 39456.

Supreme Court of Nebraska.

February 6, 1975.

*856 Shaughnessy, Shaughnessy & Shaughnessy, St. Paul, Austin S. Bacon, Loup City, O'Hanlon & Martin, Blair, for appellant.

Stephens & Beckner, Brian F. Beckner, Loup City, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

This case arises out of a decision of a county board of equalization to the effect that certain property of the appellant was to be added to the tax assessment rolls of the county. Appeal of that decision, taken to the District Court, was dismissed on the ground that the appellant had failed to perfect jurisdiction in that court within the time provided for by law. Appeal to this court involves the question of the effect of section 77-1510, R.R.S.1943, upon the matter of what time limitations are applicable for the filing of those things necessary to perfect an appeal to the District Court, such as that herein made. Upon consideration, we have determined that the District Court did in fact have jurisdiction over the appeal in question. Consequently, we reverse.

On September 26, 1972, the appellant was notified that the board of equalization of Sherman County was to meet on October 4 of that year for the purpose of considering whether certain bee hives owned by the appellant should be added to the tax assessment rolls of the county. That hearing was held as scheduled and the matter was taken under advisement. On October 25, 1972, the board notified the appellant that it had decided to add the bee hives to the assessment rolls as omitted property. The appellant determined to protest that decision, and the hearing on that protest was held before the county board of equalization on November 8, 1972. At that meeting, the members of the board of equalization voted to follow the county assessor's recommendation to add the property in question to the assessment rolls, and also to have the chairman sign the notice of such addition. The transcript of such proceedings before the county board of equalization contains that notice, dated November 8, 1972, addressed to the appellant herein. The notice in question was on a form approved by the State Tax Commissioner and contained, among other things, the following language: "You are further notified that the action of the County Board of Equalization may be appealed to the District Court of this County in same manner as appeals are taken from the actions of the County Board of Equalization under the provisions of Sections 77-1510 and 77-1511, R.R.S.1943. Said appeal must be perfected within 45 days." Appellant's petition on appeal to District Court admits it was mailed notice on November 8, 1972.

The record reflects that on December 22, 1972, the appellant submitted notice of his intention to prosecute an appeal to the District Court, together with a request that a transcript of the proceedings before the county board be prepared. Appellant also filed an appeal bond on that date. On *857 December 26, 1972, the appellant filed his petition on appeal with the District Court. On the same date the transcript of the proceedings before the county board of equalization was filed with the court. Subsequently, the appellee filed a motion to dismiss on the ground that the District Court lacked jurisdiction, citing section 77-1510, R.R.S.1943, and section 23-135 R.R.S. 1943, for the proposition that since the appellant had not filed his notice of appeal within 20 days of the decision of the county board, the District Court was without jurisdiction to pass on the merits of that decision. Upon consideration, the District Court found that the board of equalization had given the appellant notice of its decision of November 8, 1972, as provided by law, and also found that appellant's notice of appeal had not been served within 20 days of the decision of the county board, and that the court lacked jurisdiction over the appeal. The District Court thereupon entered an order granting the appellee's motion to dismiss, from which order appellant has appealed to this court.

The key provision with which this appeal is concerned is section 77-1510, R.R.S.1943, which provides in part that: "Appeals may be taken from any action of the county board of equalization to the district court within forty-five days after adjournment of the board, in the same manner as appeals are now taken from the action of the county board in the allowance or disallowance of claims against the county." The manner of taking such appeals is set out in section 23-135, R.R.S.1943, which provides in part that: "When the claim of any person against the county is disallowed in whole or in part by the county board, such person may appeal from the decision of the board to the district court of the same county, by causing a written notice to be served on the county clerk, within twenty days after making such decision and executing a bond to such county, . . .." (Emphasis supplied.) The appellee argues before this court, as it did before the district court, that pursuant to these sections, an appellant has only 20 days in which to file notice of an appeal from the action of the county board of equalization. Appellant's notice of appeal in this case having been filed more than 20 days after the decision of the county board, the appellee asserts that the District Court was correct in determining that it lacked jurisdiction in this matter.

The argument of the appellant presents a different interpretation of sections 77-1510 and 23-135, R.R.S.1943. It argues that although a 20-day period of limitation in which to file notice of appeal applies in other cases falling under section 23-135, R.R.S.1943, that period is not controlling where the appeal is being brought pursuant to section 77-1510, R.R.S.1943. Thus, the appellant asserts that the 45-day period established in the more specific statute, section 77-1510, R.R.S.1943, which deals with appeals from county board of equalization, overrides the 20-day period provided for in section 23-135, R.R.S.1943.

We are convinced from an investigation of the history of sections 77-1510 and 23-135, R.R.S.1943, that appellant's interpretation of those sections is correct. From the time of its inception, section 23-135, R.R.S.1943, has provided that written notice of the intent to appeal must be filed within 20 days of the time of the decision. See Laws 1879, § 37, p. 366. With the exception of a period between 1907 and 1913, during which period no time limitation appeared in section 23-135, R.R.S.1943, the 20-day time limitation has continued constantly in effect under section 23-135, R.R.S.1943, until the present. See Laws 1907, c. 33, § 1, p. 165; Laws 1911, c. 33, § 1, p. 198; R.R.S. 1913, § 965. Section 77-1510, R.R.S.1943, was added to the law of this state more than 2 decades after the adoption of section 23-135, R.R.S.1943. See Laws 1903, c. 73, § 124, p. 430. We note that section 77-1510, R.R.S.1943, as originally enacted, provided that appeals could be taken to the District Court from the county board of equalization within "twenty days" after the *858 adjournment of the board. It was not until 1959 that the section was altered to provide for a time limitation of 45 days. See Laws 1959, c. 371, § 2, p. 1308.

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Bluebook (online)
225 N.W.2d 855, 193 Neb. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knoefler-honey-farms-v-county-of-sherman-neb-1975.