Hunt v. Neff

Boslaugh, J.

Appellant filed a claim against the estate of George W. Myers, deceased, in the county court of Dawson County; appellee interposed objections thereto; and hearing was had and the claim disallowed. Appellant appealed to the district court; failed to file a petition therein within the time required; and on motion of appellee the appeal was dismissed. This appeal is from the judgment of dismissal.

When a claimant appeals from a judgment of a county court disallowing his claim against an estate, he is the plaintiff within the meaning of the statutory provisions providing for an appeal, and it is his duty to file a petition in the district court within 50 days from the rendition of the judgment in the county court. § 27-1306, R. R. S. 1943; In re Estate of Kothe, 131 Neb. 780, 270 N. W. 117; Weideman v. Estate of Peterson, 129 Neb. 74, 261 N. W. 150; In re Estate of Lindekugel, 148 Neb. 271, 27 N. W. 2d 169.

The claim of appellant was disallowed by the county court on the 3d day of June 1949, and the time within which she was required to file, and could have of right filed, a petition in the district court on appeal from the disallowance of her claim, expired with the 23d day of July 1949. She did not file a petition as required, and 4 days thereafter appellee moved for a non-suit because of her default. On August 3, 1949, the 61st day after the claim was denied, appellant by motion requested leave to file a petition in the district court.

The showing in support of the motion for leave to file the petition after July 23, 1949, was: That the office of counsel for appellant was without stenographic assistance during the month of June 1949, and the counsel were “only able to take care of those things that required immediate attention”; that they did have stenographic assistance commencing on July 1 and through July 23; that one of the counsel was disabled by sickness from July 2 to July 11, and thereby prevented from performing any professional duties during that period; that the other attorney for appellant was, during the month of June and the early part of July, chairman of a committee to secure funds for the purchase, to purchase, select locations for the erection of, and to have installed street markers of the streets of the city of Lexington; that the work of the committee engaged much of his time during that period; that he was a reserve officer in the Army, and to continue his status was required to have two weeks’ service in each two-year period; and that he gave notice the latter part of March of his desire to have two weeks’ active duty, received orders on July 6 to leave Lexington not later than July 8 for active duty, and he left on that date and was absent until July 24, 1949.

The manner of the appeal was regular and the transcript filed in the district court vested jurisdiction of the case. The failure of appellant to timely file a petition did not affect or defeat jurisdiction. Mandatory in the solution of the problem presented to the district court was the exercise of a legal discretion. In re Estate of Grblny, 147 Neb. 117, 22 N. W. 2d 488. Appellant concedes this and contends for a determination by this court of abuse of discretion by the district court. The reasons given by appellant for her default in pleading were not satisfactory and are far short of being so conclusive as to compel the district court to but one conclusion — that in favor of appellant. The ruling of the court was based upon a consideration of evidence, and there is no indication that it acted arbitrarily or capriciously. A discretionary duty is imposed upon a district court to determine whether or not good cause has been shown for the failure of a party to plead within the time required. After the court has heard the excuses and reasons of a party in default for his failure, and in the exercise of a legal discretion has decided that no sufficient cause has been shown, this court will not ordinarily disturb the decision.

The judgment of the district court should be and hereby is affirmed.

Affirmed.