§ 25-1914 — Appeal; cost bond; cash deposit; appellate proceedings; dismissal

Nebraska § 25-1914

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

On appeal in any case taken from the district court to the Court of Appeals or Supreme Court, other than an appeal pursuant to section 71-6904 , the appellant or appellants shall, within thirty days after the entry of the judgment, decree, or final order sought to be reversed, vacated, or modified or within thirty days after the entry of the order overruling a motion for a new trial in such cause, (1) file in the district court a bond or undertaking in the sum of seventy-five dollars to be approved by the clerk of the district court, conditioned that the appellant shall pay all costs adjudged against him or her in the appellate court, or (2) make a cash deposit with the clerk of at least seventy-five dollars for the same purpose. If a supersedeas bond is executed, no bond for costs shall be required. The giving of either form of bond or the making of such deposit shall be certified to by the clerk of the district court in the transcript for the appellate court. The appeal may be dismissed on motion and notice in the appellate court if no bond has been given and certified in the transcript or within such additional time as may be fixed by the appellate court for good cause shown.

Legislative History

Source: Laws 1907, c. 162, § 3, p. 496; R.S.1913, § 8188; C.S.1922, § 9140; Laws 1929, c. 72, § 1, p. 252; C.S.1929, § 20-1914; Laws 1941, c. 32, § 2, p. 142; C.S.Supp.,1941, § 20-1914; R.S.1943, § 25-1914; Laws 1947, c. 87, § 2, p. 266; Laws 1987, LB 33, § 1; Laws 1991, LB 425, § 10; Laws 1991, LB 732, § 54; Laws 1999, LB 43, § 9. Annotations: 1. Bond 2. Notice of appeal 1. Bond Section contains no exceptions to the requirement of filing bond; case dismissed where county did not file bond or make application or showing for an extension of time to file the required bond. County of Hall v. Engleman, 182 Neb. 676, 156 N.W.2d 801 (1968). Only one cost bond is required even though there are multiple appellants. Dorshorst v. Dorshorst, 174 Neb. 886, 120 N.W.2d 32 (1963). Appellant in compensation case is not exempted from filing cost bond or making cash deposit in lieu thereof. Hoffman v. State, 142 Neb. 821, 8 N.W.2d 200 (1943). Where an executor appeals from an order which does not affect him in his representative capacity and fails to give bond, the appeal will be dismissed. In re Vetter's Estate, 139 Neb. 307, 297 N.W. 554 (1941). A party is not entitled to any of the rights of an appellant in Supreme Court, where he has failed to give a cost or supersedeas bond, and where he has not been designated as a party to the appeal in a praecipe by another party who has appealed. Heinisch v. Travelers Mutual Casualty Co., 135 Neb. 13, 280 N.W. 234 (1938). Where appellant executes supersedeas bond, but it is filed too late to operate as a supersedeas, it will operate as a cost bond on appeal if filed within time for that purpose. Occidental Bldg. & Loan Assn. v. Carlson, 134 Neb. 574, 279 N.W. 162 (1938). Statute means appellant must file such bond within time prescribed by statute from rendition of final order in district court; if no such bond is filed, the appeal will be dismissed. In re Estate of Raymond, 124 Neb. 125, 245 N.W. 442 (1932). Provision for giving bond is mandatory and jurisdictional, and if bond is not filed within time prescribed by statute, appeal will be dismissed. Paper v. Galbreth, 123 Neb. 841, 244 N.W. 896 (1932); Greb v. Hansen, 123 Neb. 426, 243 N.W. 278 (1932). Under section 43-2,106.01, an appeal taken in the same manner as an appeal from district court includes the appeal bond requirement set forth in this section. In re Interest of Kayla F. et al., 13 Neb. App. 679, 698 N.W.2d 468 (2005). Where, after petitioner's appeal was dismissed by Nebraska Supreme Court for failure to deposit cash or bond and United States Supreme Court granted certiorari, sections 25-2301 to 25-2307 were enacted permitting appeal in forma pauperis, judgment was vacated, and cause remanded for reconsideration. Huffman v. Boersen, 406 U.S. 337 (1972). 2. Notice of appeal Filing of transcript in workmen's compensation case was duty of clerk of district court. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957). Supplemental transcript disclosed that appellant had properly perfected appeal. Stark v. Turner, 154 Neb. 268, 47 N.W.2d 569 (1951). Where party fails to give notice of appeal in district court, and praecipe on appeal omits party to cause who might be affected by reversal or modification of judgment, appeal will be dismissed. Kansas City Life Ins. Co. v. Neverve, 135 Neb. 630, 283 N.W. 378 (1939). Trial court cannot extend time for taking appeal by vacating decree after term and reentering same decree. Hoover v. State, 126 Neb. 277, 253 N.W. 359 (1934); Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933). Where notice of appeal is properly given in district court, jurisdiction acquired by Supreme Court when transcript is filed, without further notice. Marvel v. Craft, 116 Neb. 802, 219 N.W. 242 (1928). Notice of appeal is not jurisdictional. Anderson v. Griswold, 87 Neb. 578, 127 N.W. 883 (1910).