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State v. McColery
297 Neb. 53
| Neb. | 2017
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Background

  • Scott McColery was charged with strangulation; bond set at $50,000 and he posted a $5,000 appearance bond.
  • McColery assigned the $5,000 bond to his attorney for legal fees.
  • The State filed an affidavit of lien for overdue child support showing McColery owed > $18,000.
  • McColery moved to release the bond funds to his attorney after his conviction; the district court denied the motion and held the funds in court.
  • The State had not yet initiated garnishment proceedings against the bond funds when the denial occurred.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the district court's order denying release of bond funds is a final, appealable order McColery: denial prevents release to his attorney and should be immediately appealable State: order does not affect substantial rights because it neither awards nor disposes of the funds Court: order is not final or appealable; appeal dismissed as premature

Key Cases Cited

  • Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (discusses what constitutes affecting a substantial right)
  • Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (addresses finality standards under Neb. Rev. Stat. § 25-1902)
  • Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (treatment of orders affecting substantial rights)
  • Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899 (analysis of final order doctrine)
  • Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (definition of affecting a substantial right)
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.