DocketNumber: No. 17,207
Citation Numbers: 93 Neb. 731
Judges: Barnes, Fawcett, Hamer, Letton, Reese, Rose, Sedgwick
Filed Date: 5/17/1913
Status: Precedential
Modified Date: 7/20/2022
This is an appeal from an order overruling a motion by defendant to docket in the district court an appeal from the county court and to open a judgment rendered against her in the district court, under section 1011 of the code, providing that an appellee in a suit before a justice of the peace or a county court may file a. transcript in the district court and there obtain a dismissal of the appeal or a judgment similar to that rendered in the inferior court, if the appellant fails to perfect his appeal within the statutory period of 30 days.
Did the district court err in overruling defendant’s
Defendant asks for a reversal on two grounds; (1) By presenting to the district court a transcript of the proceedings of the county court and by demanding a judgment similar to the one therein rendered, plaintiff entered a general appearance in the district court and waived the delay on part of defendant in perfecting her appeal. (2) The failure of defendant to file her trans-script in time resulted from a misunderstanding between attorneys or to negligence not attributable to her, and she was not responsible for the delay in any event.
1. The record of the county court shows that a proper appeal bond had been given. The county judge prepared the transcript in time. After the statutory period had expired, plaintiff presented a transcript to the district court and demanded a judgment similar to that of the county court. He asked only for relief grantable under the specific terms of the code. He did not appear for the purpose of opening a controversy settled by a judgment and the lapse of time. The legislature, in providing for a dismissal of the appeal or for re-entry of judgment in the appellate court, did not intend that those remedies
2. Defendant relies on an affidavit to show that her failure to file the transcript- within 30 days was due entirely to a misunderstanding between attorneys or to neglect of others, and that she was in nowise responsible for the failure to perfect- her appeal in time. Her application raised an issue of fact as to the cause of the delay. There was proof on both sides. The evidence is sufficient to support a finding that an attorney regularly employed by her to perfect an appeal ordered the transcript, thinking he had 30 days from the filing of the appeal bond to deposit the transcript with the clerk of the district court, and that this was the cause of the delay. The excuse is not sufficient. The evidence sustains the judgment.
Affirmed.