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 >$18,000.
- McColery moved to release the $5,000 bond to his attorney; the district court denied the motion and kept the funds in court.
- The State had not yet initiated garnishment proceedings against the bond funds when the denial was entered.
- McColery appealed the denial to the Nebraska Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order denying release of bond funds is a final, appealable order | McColery: denial is ripe for appeal; order prevents release to his attorney | State: order does not affect any party’s substantive rights and is not final | Court: order is not final or appealable; appeal dismissed |
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 finality and substantial rights for appeal)
- Carlos H. v. Lindsay M., 283 Neb. 1004 (final-order principles)
- Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277 (final-order analysis)
- Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (defining when an order diminishes a claim or defense)
