History
  • No items yet
midpage
State v. McColery
297 Neb. 53
Neb.
2017
Read the full case

Background

  • 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)
Read the full case

Case Details

Case Name: State v. McColery
Court Name: Nebraska Supreme Court
Date Published: Jun 23, 2017
Citation: 297 Neb. 53
Docket Number: S-16-1017
Court Abbreviation: Neb.