School District No. 49 v. Cooper

45 N.W. 618, 29 Neb. 433, 1890 Neb. LEXIS 236

• Court: Nebraska Supreme Court
• Decided: April 29, 1890
• Status: Published

Opinion

Noryal, J.

The case is submitted on the motion of the defendant to dismiss the petition in error for the following reasons:

First — Because the order of the district court overruling the objections of the plaintiff in error to the jurisdiction of the said court was not a final order from which proceedings in error will lie.

Second — Because no final judgment was rendered in the action.

The following is a copy of the order entered in the district court:

“ James Cooper y.

School District No. 49.

“Now on this day this cause came on for hearing upon the special appearance of the defendant, objecting to the jurisdiction of the court, and the court, upon consideration thereof, doth overrule said objections. To which ruling-of the court the defendant by counsel excepts, and the exceptions are by the court allowed.”

It is patent that this is not a final order. There has been no final disposition of the case by the district court. A petition in error can only be prosecuted from a final order or judgment. (Smith v. Sahler, 1 Neb., 310; Mills v. Miller, 2 Id., 299; Miller v. B. & M. R. R. Co., 7 Id., 227; Scofield v. State National Bank, 8 Id., 17.)

The motion to dismiss is sustained.

Motion sustained.

The other judges concur.