State v. McColery
297 Neb. 53
Neb.2017Background
- Scott McColery posted a $5,000 appearance bond in a criminal case and signed an "Assignment of Bond" to his private attorney for legal fees.
- The State filed an affidavit of lien asserting garnishment rights over the bond for overdue child support (arrearage > $18,000 as of Nov. 2015).
- McColery moved to release the $5,000 bond to his attorney; the district court overruled the motion and kept the funds in court custody.
- The State had not yet initiated formal garnishment proceedings when the motion was denied.
- McColery appealed the district court’s order overruling his motion to release the funds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s order overruling McColery’s motion to release bond funds is a final, appealable order (i.e., whether it affects a "substantial right"). | McColery: district court erred in denying release — appeal should be heard now. | State: the order does not affect any party’s substantive rights to the funds and thus is not final or appealable. | The order is not final or appealable because it does not determine parties’ rights to the funds or diminish claims; appeal dismissed as premature. |
Key Cases Cited
- Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (discusses when an order affects a substantial right for appealability)
- Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (standards for final order and appealability)
- Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (final-order analysis in special proceedings)
- Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899 (clarifies substantial-rights test for appellate jurisdiction)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (examples of orders that affect or do not affect substantial rights)
