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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 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)
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.