Prante v. Lompe

104 N.W. 1150, 74 Neb. 210, 1905 Neb. LEXIS 280

• Court: Nebraska Supreme Court
• Decided: June 22, 1905
• Docket: No. 14,298
• Status: Published

Opinion

Sedgwick, J.

' Upon application for that purpose the county court of Nemaha county made an order appointing a guardian for Harman Ray, as an incompetent person, and upon proceedings in error in the district court for that county this order was reversed and the cause was set down for trial in the district court. The parties interested, desiring to prosecute proceedings in error in this court to reverse the order of the district court, applied to that court for a supersedeas of its order, Avhich Avas refused; and the cause having been docketed in this court upon proceedings in error, application is made to this court for a supersedeas of the judgment of the district court. It is, of course, within the discretion of the district court to determine whether a supersedeas should be alloived. Rut this is a legal discretion, and where such supersedeas is refused, this court will in a proper case supersede the judgment of the district court upon proper terms. With this in view we have examined the record presented, and are satisfied that the district court properly exercised its discretion, When the judgment of the county court was reversed, and the cause set down for trial in the district court, the latter court became possessed of the cause, and application may be made to that court for such orders upon the parties interested as may be necessary to protect the property involved and the rights of all of the parties. The decision of the district court will, of course, be presumed to be correct until, upon the record, it is found to be otherwise, and this cannot be determined in this court before a final hearing. In the meantime the judgment of the district court is in full force, and there is no necessity for a supersedeas. The application is therefore

Overruled.