Patterson v. Woodland

44 N.W. 112, 28 Neb. 250, 1889 Neb. LEXIS 336

• Court: Nebraska Supreme Court
• Decided: December 17, 1889
• Status: Published

Opinion

Maxwell, J.

This action was brought in the county court of Douglas county, the judgment being rendered February 9, 1888. On the 18th of that month an undertaking for an appeal to the district court was duly filed and approved. On the 17th of March of that year the transcript was filed in the district court. A motion was thereupon filed by the defendant in error to dismiss the appeal “for the reason that the transcript was not filed within thirty days after the rendition of the judgment.” The motion was sustained, to which an exception was taken, and the cause is now brought into this court by petition in error. The record shows that the judgment of dismissal was entered in the district court on the 21st of April, 1888, and the transcript and petition in error were filed in this court on the 6th of May, 1889. The attorneys for the defendant in error now move to “dismiss said proceedings in this court, and strike said transcript and petition from thedocket” because not filed within a year from the date of the judgment.

Section 592 of the Code provides that “No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment, or making of the final order complained of, or, in case the person entitled to such proceedings be an infant, a person of unsound mind, or imprisoned within one year as aforesaid, exclusive of the time of such disability; Provided, That the provisions of this act shall only apply to judgments or decrees rendered after the date of its taking effect.” As the transcript and petition in error were filed after the expiration of a year from the rendition of the judgment, the right to prosecute error had ceased. The motion to dismiss is therefore sustained.

Judgment accordingly.

The other judges concur.