Lewis v. Barker

65 N.W. 778, 46 Neb. 662, 1896 Neb. LEXIS 497

• Court: Nebraska Supreme Court
• Decided: January 9, 1896
• Docket: No. 5685
• Status: Published

Opinion

Norval, J.

This suit was instituted in the district court of Burt county by the plaintiff in error against Martin Barker, Frank Dellone, Fred Dellone, and John McCrary. Barker was summoned in Burt county and the other defendants in Douglas county. Subsequently, on motion of the two Dellones and McCrary, the summons was by the court quashed as to them, on the ground that it was issued without the authority of law, and to reverse this order the plaintiff prosecutes a petition in error to this court.

The decision of which complaint is here made is not reviewable, since it is not final in such a sense as to constitute a final judgment. An order sustaining a motion to quash a summons is not reviewable in the appellate court before a final judgment dismissing.the cause has been rendered in the court below. This was distinctly held in Brown v. Nice, 30 Neb., 236; Persinger v. Tinkle, 34 Neb., 5; Standard Distilling Co. v. Freyhan, 34 Neb., 434. (See Smith v. Johnson, 37 Neb., 675; Seven Valleys Bank v. Smith, 43 Neb., 237; Edgar v. Keller, 43 Neb., 263, and authorities therein cited.) Since the record fails to show that a final judgment of dismissal has been rendered in the cause in the court below, the petition in error is

Dismissed.