12 Neb. 480 | Neb. | 1882
This is an original action brought in the district court of Nuckolls county, by Mary McPherson against the Republican Yalley R, R. Co., to obtain an order to reinstate an appeal, which had been dismissed by said court. A demurrer to the petition was overruled in the court below and. the appeal reinstated. The railroad company brings the cause into this court by petition in error.
The petition states in substance, that certain real estate, (describing it), of Mary McPherson was condemned for right of way by the plaintiff on the 7th day of November, 1879; that no record of said proceeding was kept in the
It is also stated that at the May term, 1881, of said court, said appeal was dismissed, because the transcript was not filed therein within sixty days. Two affidavits are also filed in support of said petition. The question to be determined is, did the district court err in reinstating the appeal? The petition and affidavits show diligence on the part of the appellant, and that she made every effort to perfect the appeal within the time limited by statute, but was prevented by the negligence, or failure to perform his duty, of the county judge, The ease-therefore falls within the rule laid down in Dobson v. Dobson, 7 Neb., 296, and is sufficient to entitle the party to an appeal.
The petition in this case was filed as in the commencement of an action. This was unnecessary. It is a proceeding in the same court to reinstate an appeal dismissed for cause. The procedure in such eases should be by
Judgment Affirmed.