State v. McColery
297 Neb. 53
Neb.2017Background
- 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 private attorney for legal fees.
- The State filed an affidavit of lien for overdue child support showing McColery owed over $18,000.
- McColery moved to have the court release the bond funds to his attorney after his conviction.
- The district court denied the motion, holding the funds in court pending further proceedings.
- McColery appealed the denial to the Nebraska Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court order denying immediate release of bond funds is a final, appealable order | McColery: denial injures his and his attorney’s right to the assigned funds and is immediately appealable | State: order does not affect any party’s substantive rights because funds remain in court and garnishment has not yet been pursued | The order is not final or appealable; appeal dismissed as premature |
Key Cases Cited
- Big John’s Billiards v. State, 283 Neb. 496 (2012) (definition of when an order affects a substantial right)
- Sutton v. Killham, 285 Neb. 1 (2013) (clarifying final-order principles)
- Carlos H. v. Lindsay M., 283 Neb. 1004 (2012) (treatment of substantial-right inquiries)
- Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277 (2016) (final order and substantial-right analysis)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (2016) (order affects substantial right when it diminishes a party’s claim or defense)
