Tuttle v. City of Omaha

75 N.W. 50, 55 Neb. 55, 1898 Neb. LEXIS 519

• Court: Nebraska Supreme Court
• Decided: May 4, 1898
• Docket: No. 8070
• Status: Published

Opinion

Ragan, C.

' Elizabeth J. Tuttle brought a suit in equity in the district court of Douglas county against the city of Omaha and some railroad companies and others. The object of the action was to obtain a decree declaring an ordinance passed by the city vacating the intersection of some streets, and permitting such intersection to be occupied by the railroad companies, void, and to oust the railroad companies from the possession of such intersection. The trial resulted in a decree dismissing Mrs. Tuttle’s action, from which she appealed to this court. Before the trial of the Tuttle suit in the district court H. Goldberg also brought a suit against the parties made defendants in the Tuttle suit and for the same purpose. It seems from a stipulation in the record that the Goldberg suit was tried at the same time the Tuttle suit was tried, but whether any decree was ever entered in the Goldberg suit the record does not inform us. Mrs. Tuttle has now filed here a motion to dismiss her appeal, the appellees consenting thereto. This motion is resisted by Goldberg. He insists that this court should retain the appeal and determine the case upon its merits, because of the fact that the Goldberg case and the Tuttle case involve the same questions, the pleadings and issues being the same; that they were tried in the district court as one case, and that it was agreed between Goldberg and the city of Omaha that the appeal in the Tuttle case should operate as an appeal also in the Goldberg case, and that the decision of this court in the Tuttle case should operate as a decision in the Goldberg case. But Mrs.'Tuttle was not a party to the stipulation entered into between Goldberg and the city of Omaha and not bound thereby, and she therefore has the right to dismiss her appeal. We have already stated that we do not know whether any decree was ever entered by the district court in the Goldberg case. For aught the record before us shows that action is still pending and undetermined. But if a decree has been entered in that action we are powerless to review it. If such a decree has been entered in order to enable this court to review the same, either upon appeal or error, a certified transcript of the record of that case must be filed in this court. This is the requirement of the Code, and unless such a transcript is filed here this court is without jurisdiction in the premises. G-oldberg is not a party to the record of the Tuttle suit in this court. He is not concluded by anything this court may decide in that case, as we have no jurisdiction over him. The motion of Mrs. Tuttle to dismiss her appeal must be sustained and the appeal is

Dismissed.