Opinion
No. 89-682.
Filed February 7, 1992.
1. Statutes. Where one statute refers to another and incorporates it, and the incorporated statute is subsequently repealed, the statute repealed, having been incorporated as part of the one referring to it, remains in force so far as the adopting statute is concerned. 2. Municipal Corporations: Pleadings: Time: Claims: Appeal and Error. In an appeal pursuant to Neb. Rev. Stat. § 16-727 (Reissue 1987), the plaintiff is required to file a petition in the district court within 50 days after the denial of the claim. 3. Municipal Corporations: Stipulations: Pleadings: Good Cause: Dismissal and Nonsuit: Appeal and Error. Unless the parties stipulate that the cause may be tried on the pleadings below, and in the absence of good cause shown, the plaintiff in an appeal under Neb. Rev. Stat. § 16-727 (Reissue 1987) who fails to file a petition in the district court shall become nonsuited.
Appeal from the District Court for Hall County: JOSEPH D. MARTIN, Judge. Reversed and remanded with directions to dismiss.
Keith Sinor, Grand Island City Attorney, for appellant.
Daniel M. Placzek, of Luebs, Dowding, Beltzer, Leininger, Smith Busick, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
The City of Grand Island (City) has appealed from the judgment of the district court finding that the claimant, Clarence E. Fisher, was entitled to receive pension benefits under Neb. Rev. Stat. § 16-1039(1) (Reissue 1987) before reaching the age of 55 years.
The record shows that Fisher began employment by the City as a firefighter on February 1, 1965. On that date, the pension provided for firefighters in cities of the first class having a paid fire department was set out in Neb. Rev. Stat. § 35-201 (Cum. Supp. 1963) (Plan A). Effective August 7, 1965, a second pension plan was established for firefighters in first-class cities by 1965 Neb. Laws, L.B. 415, codified at Neb. Rev. Stat. § 35-204 to 35-215 (Cum. Supp. 1965) (Plan B). Both plans allowed firefighters to retire after 21 years of service and to receive pension payments after reaching the age of 55. Under both plans, pension payments were to be at least 50 percent of the salary the retiring firefighter received at the time he retired. Neb. Rev. Stat. § 35-216 (Cum. Supp. 1965) provided:
Any firemen serving in the paid fire department of a city of the first class on August 7, 1965 may elect whether to become subject to the provisions of sections 35-204 to 35-214 or to remain subject to the provisions of sections 35-201 to 35-203.01. Such election shall be made in writing not later than thirty days after August 7, 1965 and shall be irrevocable.
(Emphasis supplied.)
On October 20, 1965, Fisher signed a form electing to be subject to the provisions of Plan B. Fisher testified in district court that Chief Simpson told him to either sign this document "or hit the door."
A third pension system became effective January 1, 1984. See Neb. Rev. Stat. § 16-1020 et seq. (Reissue 1987). Section 16-1039(1) provides:
All cities of the first class having a paid fire department shall pension all firefighters . . . who were serving as such on August 7, 1965, and who did not elect coverage under the provisions of sections 35-204 to 35-215 as they existed prior to January 1, 1984 [Plan B], whenever such firefighters shall have first served in such fire department for the period of twenty-one years and shall elect to retire from active service and go upon the retired list.
(Emphasis supplied.)
On February 1, 1986, Fisher completed 21 years of service and was 47 years old. When he resigned on September 29, 1987, Fisher was being paid a salary of $806.76 every 2 weeks. He had contributed $2,202.62 to the firefighters' pension fund since February 1, 1986.
On December 16, 1987, Fisher submitted a claim for pension benefits from the City and sought reimbursement for all contributions he had made to the pension plan after February 1, 1986, pursuant to 16-1039 and 16-1040. The city council informed Fisher of the denial of his claim in a letter dated March 1, 1988, and Fisher appealed to the district court, pursuant to Neb. Rev. Stat. § 16-727 (Reissue 1987). The City's special appearance and subsequent motion for nonsuit were denied.
After a hearing, the district court entered judgment in favor of Fisher and against the City for pension benefits of $403.38 every 2 weeks from and after September 29, 1987, and entered judgment in favor of Fisher and against the City for the refund of $2,202.62 in pension contributions, plus prejudgment interest. The judgment was based on the court's finding that the election of benefits made by Fisher on October 20, 1965, was involuntary and not made within 30 days after August 7, 1965, and, therefore, was ineffective, invalid, and void. From that judgment the City has appealed.
Fisher contends that 16-1039(1) does not require that he be 55 years old before becoming eligible for pension payments. However, because we determine that the district court should have nonsuited Fisher for failure to file a petition in the district court, we do not consider the parties' arguments relating to 16-1039.
The City contends that Fisher should have been nonsuited for failure to file a petition in the district court. Fisher timely appealed the denial of his claim, pursuant to the procedure set out in Neb. Rev. Stat. § 16-727 et seq. (Reissue 1987). Section 16-729 provides that such appeals "shall be entered on the docket of the court, tried, and determined as appeals from justice courts."
As we have noted in previous cases, justice courts were abolished in this state by the passage of 1972 Neb. Laws, L.B. 1032. See, e.g., Estate of Tetherow v. State, 193 Neb. 150, 226 N.W.2d 116 (1975) (eminent domain proceeding); Knoefler Honey Farms v. County of Sherman, 193 Neb. 95, 225 N.W.2d 855 (1975) (appeal from county board of equalization), overruled on other grounds, United Way of the Midlands v. Douglas County Board of Equalization, 199 Neb. 323, 259 N.W.2d 270 (1977)(construction of Neb. Rev. Stat. § 77-202.04 (Reissue 1990)); Singleton v. South Platte Nat. Resources Dist., 215 Neb. 504, 339 N.W.2d 751 (1983) (eminent domain proceeding). Section 16-729 clearly incorporates the former statutes relating to appeals from justice courts. In general, "where one statute refers to another and incorporates it, which incorporated statute is subsequently repealed, the statute repealed, having been incorporated as part of the one referring to it, remains in force so far as the adopting statute is concerned." Estate of Tetherow v. State, supra at 155, 226 N.W.2d at 119.
As stated above, Neb. Rev. Stat. § 27-1301 through 27-1315 (Reissue 1964), pertaining to justice courts, were repealed in 1972. Under 27-1301, the perfection of an appeal from a justice court vested in the district court "jurisdiction of all the issues presented to the justice of the peace by the pleadings" or, in this case, to the city council by Fisher's notice of claim.
Section 27-1305 provided that "[t]he plaintiff in the court below shall be the plaintiff in the district court; and the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in such court." Sections 27-1305 and 27-1306 required that new pleadings be filed in the district court unless the parties stipulated to the contrary. See Traill v. Ostermeier, 140 Neb. 432, 300 N.W. 375 (1941). Specifically, the plaintiff was required to file a petition "as required in civil cases in the district court" within 50 days from and after the date of the rendition of the judgment in the court below. Finally, 27-1307 provided that if the plaintiff in the action before the justice of the peace perfected an appeal to the district court but failed to file a petition within 50 days from the date of the judgment of the justice court, "the plaintiff shall become nonsuited" absent a showing of good cause. (Emphasis supplied.)
Although the filing of a petition within the 50-day period was not a jurisdictional step, see Estate of Tetherow v. State, supra, the parties did not stipulate that the case be tried without new pleadings, and the district court erred in failing to grant the City's motion for nonsuit because Fisher did not file a petition in the district court.
The judgment of the district court is reversed, and the cause is remanded with directions to dismiss Fisher's appeal. We make no determination on the merits concerning the parties' contentions relating to 16-1039.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.