No. 9970 | Neb. | Apr 6, 1899
On March 27,1897, a decree was rendered in this cause in the court below foreclosing a real estate mortgage, .and within three days thereafter the defendants filed a motion for a new trial, assigning various statutory grounds therefor, which motion, on September 27, 1897, was overruled. On March 24, 1898, the defendants filed a transcript of the record, and the bill of exceptions, duly authenticated, in this court for the purpose of reviewing the cause on appeal. Plaintiff moved a dismissal of the appeal on the ground that the same was not taken in time.
It will be observed that the appeal was not lodged in this court within six months from the entry of the decree, but was filed within that period of time from the date of the ruling on the motion for a new trial. The question of practice involved is whether the time within which an appeal may be perfected dates from the decree or from the overruling of the motion for a new trial, and the determination thereof necessitates a consideration of the provisions of section 675 of the Code of Civil Procedure, and certain adjudications of this court. Said section 675 follows: “That in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court, to the supreme court of the state; 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, procure from the clerk of the district court and 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, containing the pleadings, the judgment, or decree rendered or final order made therein, and all the depositions, testimony, and proofs offered in evidence on the hearing of the cause, and have said cause properly docketed in the supreme court; and on failing thereof, the judgment or decree rendered or final order made in the district court shall stand
It is argued by counsel for appellants that the time within which the appeal should be filed begins to run from the overruling of the motion for a new trial, and not from the rendition of the judgment, and Sharp v. Brown, 34 Neb. 406" court="Neb." date_filed="1892-04-07" href="https://app.midpage.ai/document/sharp-v-brown-6647657?utm_source=webapp" opinion_id="6647657">34 Neb. 406, is cited in support of this contention. In that case it was held, overruling Hollenbeck v. Tarkington, 14 Neb. 430" court="Neb." date_filed="1883-07-15" href="https://app.midpage.ai/document/hollenbeck-v-tarkington-6643923?utm_source=webapp" opinion_id="6643923">14 Neb. 430, that a proceeding in error may be instituted within one year from the overruling of the motion for a new trial. Tire principle governing Sharp v. Brown, supra, is not controlling. A motion for a new trial is indispensable to a review by proceeding in error of the rulings of the trial court made during the progress of a trial, or of any question which is proper to be raised by a motion for a new trial, as that the verdict is contrary to the evidence, and the damages are excessive or inadequate. (Smith v. Spaulding, 34 Neb. 128" court="Neb." date_filed="1892-03-02" href="https://app.midpage.ai/document/smith-v-spaulding-6647575?utm_source=webapp" opinion_id="6647575">34 Neb. 128; Jones v. Hayes, 36 Neb. 526" court="Neb." date_filed="1893-03-29" href="https://app.midpage.ai/document/jones-v-hayes-6648222?utm_source=webapp" opinion_id="6648222">36 Neb. 526; Miller v. Antelope County, 35 Neb. 237" court="Neb." date_filed="1892-09-21" href="https://app.midpage.ai/document/miller-v-antelope-county-6647876?utm_source=webapp" opinion_id="6647876">35 Neb. 237; Zehr v. Miller, 40 Neb. 791" court="Neb." date_filed="1894-06-05" href="https://app.midpage.ai/document/zehr-v-miller-6649140?utm_source=webapp" opinion_id="6649140">40 Neb. 791; Brown v. Ritner, 41 Neb. 52" court="Neb." date_filed="1894-06-06" href="https://app.midpage.ai/document/brown-v-ritner-6649178?utm_source=webapp" opinion_id="6649178">41 Neb. 52; Koehler v. Summers, 42 Neb. 330" court="Neb." date_filed="1894-10-16" href="https://app.midpage.ai/document/koehler-v-summers-6649441?utm_source=webapp" opinion_id="6649441">42 Neb. 330; Losure v. Miller, 45 Neb. 465" court="Neb." date_filed="1895-06-19" href="https://app.midpage.ai/document/losure-v-miller-6649969?utm_source=webapp" opinion_id="6649969">45 Neb. 465; Gaughran v. Crosby, 33 Neb. 33" court="Neb." date_filed="1891-09-22" href="https://app.midpage.ai/document/gaughran-v-crosby-6647359?utm_source=webapp" opinion_id="6647359">33 Neb. 33.) But a motion for
Dismissed.