§ 25-2729 — Appeals; procedure

Nebraska § 25-2729

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

Text

(1) In order to perfect an appeal from the county court, the appealing party shall within thirty days after the entry of the judgment or final order complained of:
(a) File with the clerk of the county court a notice of appeal; and
(b) Deposit with the clerk of the county court a docket fee of the district court for cases originally commenced in district court.
(2) Satisfaction of the requirements of subsection (1) of this section shall perfect the appeal and give the district court jurisdiction of the matter appealed.
(3) The entry of a judgment or final order occurs when the clerk of the court places the file stamp and date upon the judgment or final order. For purposes of determining the time for appeal, the date stamped on the judgment or final order shall be the date of entry.
(4) In appeals from the Small Claims Court only, the appealing party shall also, within the time fixed by subsection (1) of this section, deposit with the clerk of the county court a cash bond or undertaking, with at least one good and sufficient surety approved by the court, in the amount of fifty dollars conditioned that the appellant will satisfy any judgment and costs that may be adjudged against him or her.
(5) A notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the entry of the judgment or final order shall be treated as filed or deposited after the entry of the judgment or final order and on the day of entry.
(6) The running of the time for filing a notice of appeal shall be terminated as to all parties (a) by a timely motion for a new trial under section 25-1144.01 , (b) by a timely motion to alter or amend a judgment under section 25-1329 , or (c) by a timely motion to set aside the verdict or judgment under section 25-1315.02 , and the full time for appeal fixed in subsection (1) of this section commences to run from the entry of the order ruling upon the motion filed pursuant to subdivision (a), (b), or (c) of this subsection. When any motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion. A new notice of appeal shall be filed within the prescribed time from the entry of the order ruling on the motion. No additional fees are required for such filing. A notice of appeal filed after the court announces its decision or order on the terminating motion but before the entry of the order is treated as filed on the date of and after the entry of the order.
(7) The party appealing shall serve a copy of the notice of appeal upon all parties who have appeared in the action or upon their attorney of record. Proof of service shall be filed with the notice of appeal.
(8) If an appellant fails to comply with any provision of subsection (4) or (7) of this section, the district court on motion and notice may take such action, including dismissal of the appeal, as is just.

Legislative History

Source: Laws 1981, LB 42, § 2; Laws 1984, LB 13, § 20; Laws 1986, LB 529, § 12; R.S.Supp.,1988, § 24-541.02; Laws 1994, LB 1106, § 3; Laws 1995, LB 538, § 3; Laws 1995, LB 598, § 1; Laws 1999, LB 43, § 15; Laws 2000, LB 921, § 26; Laws 2018, LB193, § 46. Annotations: 1. Procedure 2. Miscellaneous 1. Procedure Per subsection (3) of this section, a judge's signature and a court's seal reflect the court's act of rendering judgment. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995). As an alternative to depositing a docket fee, a person who is unable to pay the required fee may file an affidavit of poverty and proceed with an appeal in forma pauperis. State v. Hunter, 234 Neb. 567, 451 N.W.2d 922 (1990). To vest appellate jurisdiction in the district court from county court, all that is required is the timely filed notice of appeal and timely deposit of the district court docket fee. Rorick Partnership v. Haug, 228 Neb. 364, 422 N.W.2d 365 (1988). An order that a juvenile is a juvenile within the meaning of section 43-202(3) is a final order. In order to appeal from a final order of a county court, notice of appeal must be filed within thirty days from the rendition of judgment. In re Interest of Aufenkamp, 214 Neb. 297, 333 N.W.2d 681 (1983). A journal entry signed by the judge and filed is all that subsection (3) of this section required for a final order filed in 1998; a file stamp was not required. State v. Solomon, 16 Neb. App. 368, 744 N.W.2d 475 (2008). Pursuant to this section, a judgment is entered by the clerk of the court by placing the file stamp and date upon a rendered judgment. State v. Wahrman, 11 Neb. App. 101, 644 N.W.2d 572 (2002). Pursuant to this section and section 25-1301, a judgment is entered when the clerk of the court places a file stamp and date upon it. State v. Wilcox, 9 Neb. App. 933, 623 N.W.2d 329 (2001). To vest jurisdiction from the county court to the district court, a party must file a notice of appeal within 30 days of the final order. If no notice of appeal is timely filed, the district court does not obtain jurisdiction, and thus, a higher appellate court cannot obtain jurisdiction from the district court. State v. Mitchell, 8 Neb. App. 659, 600 N.W.2d 497 (1999). 2. Miscellaneous When a party is appealing a decision involving a conditional use permit under this section, an appellate court acquires jurisdiction only if, within thirty days of the decision, (1) a notice of appeal is filed with the governmental entity that made the decision or with the county clerk and (2) the required district court docket fee is deposited with the governmental entity that made the decision or with the county clerk. Preserve the Sandhills v. Cherry County, 313 Neb. 668, 986 N.W.2d 265 (2023). The docket fee requirement in this section applies to exception proceedings under sections 29-2317 to 29-2319. State v. Graham, 32 Neb. App. 747, 5 N.W.3d 210 (2024). When a trial court order intended to finally dispose of a matter is announced but not rendered or entered pursuant to section 25-1301, but a party nonetheless files an otherwise timely notice of appeal, the appellate court has "potential jurisdiction" which "springs" into full jurisdiction when section 25-1301 is complied with. Rosen Auto Leasing v. Jordan, 15 Neb. App. 1, 720 N.W.2d 911 (2006). The docket fee requirement contained in this section necessarily applies to appeals brought by a prosecuting attorney pursuant to sections 29-824 to 29-826, because section 25-2728 does not expressly exclude sections 29-824 to 29-826 from the application of this section. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004). Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in this section, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).