Pester v. Lowe

165 N.W.2d 95, 184 Neb. 23, 1969 Neb. LEXIS 484

• Court: Nebraska Supreme Court
• Decided: February 14, 1969
• Docket: No. 37169
• Status: Published

Opinion

Newton, J.

Plaintiffs commenced an action in the district court for Douglas County, Nebraska, to foreclose a real estate mortgage. Defendants Harold S. Lowe and Winnifred M. Lowe, husband and wife, are the owners of the mortgaged property. Said defendants filed an answer and cross-petition. The cross-petition was dismissed on motion to strike and defendants Lowe have appealed to this court.

Perhaps there is merit to defendants’ position that the ruling of the court was erroneous, but we, cannot consider that element of the case. Plaintiffs have moved for dismissal of the appeal on the grounds that the dismissal of the cross-petition is not a final order and that defendants have failed to file a brief in this court as required by Rule 11a (1), Revised Rules of the Supreme Court, 1967. The motion must be sustained on both grounds.

In Benes v. Matulka, 182 Neb. 744, 157 N. W. 2d 382, it was ruled that an order striking a counterclaim is not a final order which may be reviewed upon appeal while the main action is otherwise pending in the district court.

Rule 11 a (1), Revised Rules of the Supreme Court, 1967, requires appellant to file his brief within 2 months from the date the appeal is docketed in this court whenever there is no bill of exceptions ordered. The time allotted has long since expired, but a brief has not been filed. When appellant fails to file a brief as required by the rules of this court, a motion to dismiss the appeal will be sustained. See, Larson v. Chicago, B. & Q. Ry. Co., 78 Neb. 434, 110 N. W. 1015; Rea v. Pierson, 114 Neb. 173, 206 N. W. 760.

Appeal dismissed as premature.