First Nat. Bank of Omaha v. Mitchell

Full title: FIRST NATIONAL BANK OF OMAHA, APPELLEE, v. RUTH MITCHELL ET AL., APPELLANTS

Court: Supreme Court of Nebraska

Date published: Oct 30, 1975

234 N.W.2d 220 (Neb. 1975)

234 N.W.2d 220

Opinion

No. 40016.

Filed October 30, 1975.

Appeal and Error: Time. The statutory requirement that the transcript be filed in the District Court within 30 days from the entry of judgment in the lower court is mandatory, and unless the appellant was prevented from complying with the statute by some default of the lower court, the District Court acquires no jurisdiction of the appeal if the filing was out of time.

Appeal from the District Court for Douglas County: PATRICK W. LYNCH, Judge. On motion to dismiss appeal. Appeal dismissed.

Ronald J. Palagi of Shrout, Caporale, Krieger, Christian Nestle, for appellants.

Robert C. Doyle of Morsman, Fike, Davis Polack, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

BOSLAUGH, J.

This is an appeal in an action for forcible entry and detainer which was commenced in the municipal court of the City of Omaha, Nebraska, on October 9, 1973. A judgment in favor of the plaintiff was entered on December 5, 1973. The defendants filed a notice of appeal and an appeal bond in the municipal court and a transcript of the proceedings in the District Court on January 7, 1974.

The plaintiff, who is the appellee in this court, has moved to dismiss the appeal on the ground that the District Court did not acquire jurisdiction because the transcript was not filed in that court within the time required by statute. If the District Court did not have jurisdiction of the appeal from the municipal court, then this court can not acquire jurisdiction. Anania v. City of Omaha, 170 Neb. 160, 102 N.W.2d 49.

Section 24-544, R. S. Supp., 1974, requires the transcript to be filed within 30 days from the entry of judgment in the lower court. Filing of the transcript constitutes filing of the appeal with the District Court. This requirement is mandatory and unless the appellant is prevented from complying with the statute because of some default of the lower court the District Court acquires no jurisdiction. See Lynde v. Wurtz, 147 Neb. 454, 23 N.W.2d 703.

The last day for filing the transcript in the District Court in this case was January 4, 1974. There is no showing that the appellants were prevented from complying with the statute by any default of the court. The filing was out of time and the District Court acquired no jurisdiction of the appeal. The appeal to this court must, therefore, be dismissed.

APPEAL DISMISSED.