State v. McColery
297 Neb. 53
| Neb. | 2017Background
- Scott McColery was charged with strangulation and posted a $5,000 appearance bond (bond set originally at $50,000).
- After posting bond, McColery executed an "Assignment of Bond" in favor of his attorney for legal fees.
- The State filed an affidavit of lien for overdue child support showing McColery owed over $18,000.
- McColery moved to release the $5,000 bond funds to his attorney; the district court overruled the motion and retained the funds in court.
- The State had not initiated garnishment proceedings at the time of the district court's order.
- The court noted a third party claiming ownership (the attorney) could later intervene in garnishment proceedings under Neb. Rev. Stat. § 25-1030.03.
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: the court erred as a matter of law by refusing to release funds to his attorney | State: the order does not affect a substantial right; it neither awards funds to anyone nor starts garnishment; appeal is premature | The order is not final or appealable; appeal dismissed because it does not affect a substantial right |
Key Cases Cited
- Big John’s Billiards v. State, 283 Neb. 496 (addresses what constitutes affecting a substantial right)
- Sutton v. Killham, 285 Neb. 1 (discusses final order and substantial-right principles)
- Carlos H. v. Lindsay M., 283 Neb. 1004 (related to final order analysis)
- Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277 (applies substantial-right standard)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (clarifies when an order diminishes a claim or defense)
