110 Neb. 279 | Neb. | 1923
A judgment of dismissal was rendered in this case on June 8, 1921. A transcript and praecipe for appeal were filed in this court on October 3, 1921, nearly four months after the judgment. A motion for a new trial was filed in the district court on June 10 and overruled on July/ 5, 1921. The praecipe on appeal recites: “This appeal is from a judgment rendered in the district court of Douglas county, Nebraska, on the 5th day of July, 1921.” There is no bill of exceptions. The record shows that a jury was impaneled, and the opening statements
Section 8825, Comp. St. 1922, defines “new trial” as folloAvs: “A new trial is a reexamination in the same qourt of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court.”
In Horton v. State, 60 Neb. 701, paragraphs 6 and 7 of the syllabus are as follows:
“6. A motion for a new trial is proper only where there has been a trial of an issue of fact on the pleadings.
“7. A final judgment based upon a pleading defective in substance may be reviewed without a motion for a new trial having been filed and ruled upon.”
In that case a peremptory writ of mandamus was allowed by the district court against a corporation and its officers, without notice to the respondents, and in their absence. Counsel for the relators contended that the judgment was not subject to review because the errors committed were not brought to the notice of the district court by a motion for a new trial. The court say: “Upon this point it is, we think, sufficient to say that there Avas no trial or semblance of a trial. The petition, which, in the absence of an alternative writ, must be regarded as a pleading, was considered and held to state facts sufficient to entitle the relators to the relief demanded. The .question decided Avas one of law and not of fact. A motion for a neAV trial is proper only where there has been a trial of an issue of fact on the pleadings.”
In Claflin v. American Nat. Bank, 46 Neb. 884, it is
In Bennett v. Otto, 68 Neb. 652, where- the question involved was to be decided by the record, the court say: “Here there was a mere examination of the record presented, and a motion for a new trial could have alleged nothing except that the court erred in deciding the matter incorrectly upon the record.”
In First Nat. Bank v. Sutton Mercantile Co., 77 Neb. 596, the third paragraph of the syllabus is: “Where a judgment at law is rendered on the pleadings alone, a motion for a new trial is not necessary to obtain a review in this court.” In the same case it is said: “A new trial is a reexamination in the same court of an issue .of fact after a verdict by a jury, report of a referee, or a decision by the court (Code, sec. 314); and a motion for a ,new trial is a motion for such reexamination. The judgment was rendered without an examination of any of the issues of fact, consequently there could be no reexamination of any such issues, and it would 'be absurd to hold that the defendant was required to ask what the .court could not possibly grant. Bannard v. Duncan, 65 Neb. 179. The judgment involved a mere construction of the pleadings, and in such a case no motion for a new trial is required in order to obtain a review in -this court. Scarborough v. Myrick, 47 Neb. 794; Hays v. Mercier, 22 Neb. 656; Claflin v. American Nat. Bank, 46 Neb. 884.”
To the same effect are Slobodisky v. Curtis, 58 Neb. 211; Walker v. Burtless, 82 Neb. 214; Anderson v. Union Stock Yards Co., 84 Neb. 305; Fairbanks, Morse & Co. v. Austin, 96 Neb. 139. The courts of California, Kansas, Indiana, and Oklohoma hold to the same effect. Morange v. Morris, 32 Barb. (N. Y.) 650; Dodge City Water-Supply Co. v. City of Dodge City, 55 Kan. 60. The pro
In vieAV of this long-settled rule, the motion for a new-trial could not extend the time for taking an appeal from, the judgment. There having been no trial of an issue ,of fact, but only a ruling upon the sufficiency of the petition, there could be no “new trial” as defined in the statute.
According to the prsecipe, this appeal is only taken from the judgment, or order, of July 5, 1921, overruling the motion for a new trial. The transcript Avas filed in time to appeal from this order. The motion for a new trial might properly have been stricken from the files by the district court, but to overrule it could not be prejudicial. The transcript Avas not filed in this court for nearly a month after the time for tailing an appeal from the judgment of dismissal, and this court therefore never acquired jurisdiction to review the same. The judgment of the district court overruling the motion for a. neAV trial is affirmed. The appeal from the judgment of dismissal is dismissed for Avant of jurisdiction.
Appeal dismissed.
