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

  • 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)
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.