Opinion
No. 35885.
Filed April 16, 1965.
Appeal and Error. Jurisdiction of a proceeding in error is not defeated by an omission of the phrase "in error" from the reference in the summons to the petition.
Appeal from the district court for Keith County: JOHN H. KUNS, Judge. Reversed and remanded.
J. Cedric Conover and W. C. Conover, for appellants.
Firmin Q. Feltz, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
A summons failed to notify defendants that the petition which had been filed against them was a petition in error. The phrase "in error" was also omitted from the praecipe. The district court sustained a special appearance and dismissed the proceeding in error.
The phrase is said to be a jurisdictional feature of the statutes. "* * * The summons shall notify the adverse party that a petition in error has been filed * * *." 25-1903, R.R.S. 1943. "The summons * * * shall, upon * * * written praecipe * * *, be issued * * *." 25-1904, R.R.S. 1943.
The omission was a noncompliance with a directory provision; i. e., the jurisdictional requirements do not include this phrase. See, From v. Sutton, 156 Neb. 411, 56 N.W.2d 441; cf. Keil v. Farmers Irr. Dist., 119 Neb. 503, 229 N.W. 898. The defect was formal.
The judgment should be and is reversed, and the cause is remanded.
REVERSED AND REMANDED.