Jerabek v. Ritz ( 1985 )

377 N.W.2d 540 (1985) 221 Neb. 448

Joan JERABEK, Appellee,
v.
Clark RITZ, Also Known As Clarence Ritz III, Appellant.

No. 84-755.

Supreme Court of Nebraska.

December 13, 1985.

Andrew J. McMullen, Kearney, for appellant.

Mary Morgan Cote of Cunningham, Blackburn, VonSeggern, Livingston & Francis, Grand Island, for appellee.

KRIVOSHA, C.J., HASTINGS, and SHANAHAN, JJ., and BRODKEY, J., Retired, and OTTE, D.J.

PER CURIAM.

This is an appeal from an order of the district court which overruled respondent's motion to vacate or modify judgment.

On April 29, 1983, the district court sustained petitioner's motion for summary judgment in this paternity action and decreed that respondent was the father of the minor child born to the petitioner but retained jurisdiction to determine the remaining issues relating to cost of birth and support. A motion for rehearing (new trial) was timely filed by the respondent on May 5, 1983, but to date no ruling has been made as to that motion.

Additional hearings were had, and on March 2, 1984, a journal entry was filed ordering respondent to pay certain medical expenses as well as monthly support. Respondent filed his motion to vacate or modify the judgment on May 14, 1984. He claimed that no notice of judgment, required by Neb.Rev.Stat. § 25-1301.01 (Reissue 1979), was received by him, and no copy of the proposed journal entry was served on his counsel, as required by rules of the district court.

However, when a motion for a new trial is seasonably filed and pending, as in this case, the cause remains in the district court so long as the motion is undisposed of, and there can be no final judgment until its disposition. Versch v. Tichota, 192 Neb. 251, 220 N.W.2d 8 (1974).

The attempted appeal in this instance having been filed prematurely, it is ordered dismissed.

APPEAL DISMISSED.