Lindsay Internat. Sales & Serv. v. Wegener
297 Neb. 788
| Neb. | 2017Background
- Lindsay sued Pribil and Wegener on a guaranty; a jury returned a verdict for Lindsay on July 21, 2016, which the court accepted on the record that day.
- Judgment on the verdict was entered July 26, 2016; the judgment noted costs would be addressed separately.
- On July 25, 2016, Lindsay filed a motion for costs; on the same day, Pribil and Wegener filed a motion for new trial (filed a couple hours after the costs motion).
- The court granted costs on August 8, 2016, held a hearing on the new-trial motion on September 12, and overruled the new-trial motion on October 14, 2016.
- Pribil and Wegener filed a notice of appeal on November 9, 2016; the Court of Appeals dismissed the appeal as untimely, treating the July 25 new-trial motion as a nullity.
- The Nebraska Supreme Court granted further review to decide whether the § 25-1144.01 savings clause made the pre-judgment new-trial motion effective so the subsequent notice of appeal was timely.
Issues
| Issue | Plaintiff's Argument (Lindsay) | Defendant's Argument (Pribil & Wegener) | Held |
|---|---|---|---|
| Whether a motion for new trial filed after announcement of verdict but before entry of judgment is effective under § 25-1144.01 | The new-trial motion was filed before a final judgment because costs remained unresolved, so it was ineffective | The motion was filed after the jury’s announced verdict and before judgment, so the statute’s savings clause treats it as filed on the day of judgment and makes it effective | The motion was effective under § 25-1144.01; no finality requirement in the savings clause |
| Whether a prematurely filed new-trial motion is a nullity when other post-verdict matters (like costs) remain pending | Premature filing before ruling on costs renders the motion a nullity | The statutory savings clause applies whenever a motion is filed after announcement of verdict or decision but before entry of judgment, regardless of pending cost rulings | The Court rejected importing a finality requirement; J & H Swine inapplicable |
| Whether the effective new-trial motion tolled the appeal period so the later notice of appeal was timely | Filing costs and later judgment made appeal period run earlier, so the November notice was untimely | The new-trial motion, being effective, tolled the appeal period until it was overruled; the November notice was within 30 days of denial | Held notice of appeal was timely because the appeal period ran from the order overruling the new-trial motion |
| Whether courts should read a "final order" requirement into § 25-1144.01 by analogy to § 25-1912(2) and related case law | § 25-1144.01 requires finality like § 25-1912(2) | § 25-1144.01's text lacks the word "final," so no such requirement should be read in | Court refused to read a finality requirement into § 25-1144.01; plain text controls |
Key Cases Cited
- Macke v. Pierce, 263 Neb. 868 (interpretation of earlier § 25-1144.01 holding pre-judgment motion was nullity)
- Despain v. Despain, 290 Neb. 32 (applied 2004 savings clause in § 25-1144.01 to make pre-judgment new-trial motion effective)
- J & H Swine v. Hartington Concrete, 12 Neb. App. 885 (Court of Appeals decision cited by panel below; court held inapplicable here)
- In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33 (interpreted savings clause in § 25-1912(2); distinguishes § 25-1144.01 because § 25-1912(2) expressly mentions final orders)