Merle & Heaney Manufacturing Co. v. Wallace

Nebraska Supreme Court

Merle & Heaney Manufacturing Co. v. Wallace

67 N.W. 883, 48 Neb. 886, 1896 Neb. LEXIS 165

Nebraska Supreme Court·Decided June 16, 1896·No. No. 6716·Published·Cited by 10 cases

Opinion

Ryan, C.

There was originally a judgment rendered by the district court of Douglas county in favor of plaintiff against the defendants upon a promissory note made by defendants to plaintiff. Inethis note there was a power of attorney authorizing any attorney at law to appear and to confess judgment. There waS an appearance and answer by an attorney for the defendants, whereby was confessed plaintiff’s cause of action as alleged and its right to a recovery as prayed. This attorney had no other authority than was conferred by the provisions of the note, and therefore this judgment was at the same term it was rendered set aside on motion of the defendants, who were given thirty days within which to answer. These proceedings in error are brought to reverse this order.

It is provided by section 582 of the Code of Civil Procedure that “A judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court for errors appearing on the record.” In the section immediately preceding that above quoted is the following language: “An order affecting a sub[887]*887stantial right in an action, when snch order in effect determines the action a,nd prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this title.” In Smith v. Sahler, 1 Neb., 310, it was held that an order is final only when no further action is required to dispose of the cause pending, but when the cause is retained for further action the order is interlocutory. The same rule, under various circumstances, has been enforced in Scofield v. State Nat. Bank of Lincoln, 8 Neb., 16, Shedenhelm v. Shedenhelm, 21 Neb., 387, and numerous authorities cited, as well as in School District v. Cooper, 29 Neb., 433, Clark v. Fitch, 32 Neb., 511, Brown v. Edwards & McCullough Lumber Co., 44 Neb., 361, Bartram v. Sherman, 46 Neb., 713, and Johnson v. Parrotte, 46 Neb., 51. There being no final judgment or final order in this case, the petition in error is

Dismissed.

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Ryan, C.

There was originally a judgment rendered by the district court of Douglas county in favor of plaintiff against the defendants upon a promissory note made by defendants to plaintiff. Inethis note there was a power of attorney authorizing any attorney at law to appear and to confess judgment. There waS an appearance and answer by an attorney for the defendants, whereby was confessed plaintiff’s cause of action as alleged and its right to a recovery as prayed. This attorney had no other authority than was conferred by the provisions of the note, and therefore this judgment was at the same term it was rendered set aside on motion of the defendants, who were given thirty days within which to answer. These proceedings in error are brought to reverse this order.

It is provided by section 582 of the Code of Civil Procedure that “A judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court for errors appearing on the record.” In the section immediately preceding that above quoted is the following language: “An order affecting a sub[887]*887stantial right in an action, when snch order in effect determines the action a,nd prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this title.” In Smith v. Sahler, 1 Neb., 310, it was held that an order is final only when no further action is required to dispose of the cause pending, but when the cause is retained for further action the order is interlocutory. The same rule, under various circumstances, has been enforced in Scofield v. State Nat. Bank of Lincoln, 8 Neb., 16, Shedenhelm v. Shedenhelm, 21 Neb., 387, and numerous authorities cited, as well as in School District v. Cooper, 29 Neb., 433, Clark v. Fitch, 32 Neb., 511, Brown v. Edwards & McCullough Lumber Co., 44 Neb., 361, Bartram v. Sherman, 46 Neb., 713, and Johnson v. Parrotte, 46 Neb., 51. There being no final judgment or final order in this case, the petition in error is

Dismissed.

Merle & Heaney Manufacturing Co. v. Wallace, 67 N.W. 883, 48 Neb. 886, 1896 Neb. LEXIS 165 (Neb. 1896).

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