64 Neb. 725 | Neb. | 1902
The defendant in error presents a motion to dismiss the error proceedings in the present action instituted in this court, because not commenced within six months from the date of the rendition of the judgment complained of, as is provided shall be done by section 592 of the Code of Civil Procedure.
The action in the lower court was one at law, and was tried to the court without a jury. The findings by the court and the judgment resting thereon were made and rendered on July 15, 1901, and immediately extended on the journal of the court. On the following day, and within the time required by statute, a motion for a new trial was duly fthed, assigning numerous errors alleged to have occurred during the trial of the cause as grounds for sustaining the motion. This motion appears not to have been ruled upon by the trial court at the term at which fthed, which adjourned sine die July 20. On the date of the final adjournment, it was ordered that all pending motions not otherwise disposed of be continued until the next term. On October 8 the motion for a new trial came up for consideration, and was by the trial court overruled. The error proceedings were begun within six months from the date of overruling the motion for a new trial; but more than six months had elapsed from the actual rendition of the judgment which it is sought to have reversed. The question, therefore, which is presented, is whether, when the motion for a new trial is presented after the judgment is rendered,—which is usually the case when a law action is tried to the court without a jury,—the limitation of time within the meaning of the statute regulating the commencement of error proceedings to obtain a reversal of the judgment complained of, will date from the time of the actual rendition of the judgment, or from the time of the court’s ruling on the motion for a new trial, fthed subsequent to the rendition of such judgment, but at the same
We conclude, therefore, that in a trial of a law action, where judgment is rendered before the motion for a new trial is ruled upon, and the motion is seasonably'presented, the time within which error proceedings may be begun commences to run when the ruling is had' upon such motion, and that, therefore, the motion to dismiss should be denied.
Motion overruled.