28 Neb. 601 | Neb. | 1890
The plaintiff brought an action in partition in the district court of Richardson county. A decree was entered therein on the 18th day of June, 1888, and the plaintiff appeals. A transcript of the proceedings, containing the pleadings and decree, was filed in this court December 17, 1888. The defendant Lorinda Hanna now moves to dismiss the appeal on two grounds:
First —Because the transcript does not contain the testimony taken on the trial.
Second — That no notice of appeal was issued herein until November 8, 1889.
It is contended that this court has no jurisdiction, because the transcript does not contain the testimony and proofs offered in evidence on the trial. The determination of
The right to appeal in equity cases is regulated solely by. statute. A liberal construction should be given all laws providing for appeals — such a construction as will not abridge the right. The mandatory part of the above quoted statute is “that the party appealing shall within six months after the date of the rendition of the judgment or decree, or the making of the final order, * * * file in the office of the clerk of the supreme court a certified transcript of the proceedings had in the cause in the district court.” On the filing of such a transcript within the statutory time, this court acquires jurisdiction, notwithstanding such transcript maybe imperfect or may not contain all the matters called for in the above quoted section. The transcript in this case contains the decree of the lower court, and all the pleadings in the case, which we think was sufficient to confer jurisdiction to compel the sending up of the balance of the record, and having jurisdiction for one purpose, it existed for all others.
The decision in N. & C. R. R. Co. v. Storer, 22 Neb., 92, we think is decisive of this motion. In that case an appeal had been taken to the district court from the award of commissioners in the assessment of damages sustained by the owner of real estate by the appropriation of the same by the defendant railroad. The transcript consisted
The case of Jefferson Co. v. Saxon, 10 Neb., 14, is cited as sustaining the motion. The question here presented was not in that case. A transcript had been filed in that cause in the supreme court in time. It contained what purported to be a bill of exceptions, but had not been signed by the district judge. The appellant withdrew the records from the files for the purpose of having the bill allowed, and after the time had elapsed for filing an appeal, the record was again filed with the clerk of this court. The appeal was dismissed because “the transcript of the proceedings in the court below was not filed in this court within the time provided by law.” The court uses this language in that case: “ The voluntary withdrawal of the entire record, leaving nothing of the case in this court, without any saving order as to the defendant’s rights under the appeal, and there being no apparent excuse for the delay in obtaining the judge’s certificate, was equivalent to a voluntary dismissal by the appellant.” It was after this dismissal that the second transcript was filed, which was long after the time had elapsed for filing an appeal. The first point of the syllabus in Jefferson Co. v. Saxon is therefore modified.
As to the objection that no notice of appeal was given until November 8, 1889, it is sufficient to say that the statute does not require that a notice shall be given to the adverse party. None is therefore required to give this court jurisdiction.
The motion to dismiss the appeal is overruled.
Motion overruled.