Newquist v. State

Full title: JIM NEWQUIST, PLAINTIFF IN ERROR, v. STATE OF NEBRASKA, DEFENDANT IN ERROR

Court: Supreme Court of Nebraska

Date published: Mar 2, 1951

46 N.W.2d 639 (Neb. 1951)

46 N.W.2d 639

Opinion

No. 32966.

Filed March 2, 1951.

Appeal and Error. The provision of section 25-1931, R. S. Supp., 1949, allowing an infant one year exclusive of the time of disability within which to commence proceedings to reverse, vacate, or modify judgments or final orders had no application except where there is a recognizable legal disability to protect rights or liberties on account of infancy.

ERROR to the district court for Douglas County: HENRY J. BEAL, JUDGE. Motion to dismiss sustained.

Eugene D. O'Sullivan, Jr. and Tom Kelley, for plaintiff in error.

Clarence S. Beck, Attorney General, and Walter E. Nolte, for defendant in error.

Heard before SIMMONS, C.J., CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, J.

This is a companion case to Cunningham v. State, ante p. 912, 46 N.W.2d 636, and all of the questions therein are found in this case. The two cases have an identical history. What is said there is adopted as controlling here.

The plaintiff in error in this case presents a question here which was not presented in No. 32965. By this new question he insisted that he is a minor and under the terms of section 25-1931, R. S. Supp., 1949, he is entitled to one year after attaining his majority to prosecute error. The section is the following:

"No proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced unless within one calendar month after the rendition of the judgment or making of the final order complained of; except that when the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, he shall have one year exclusive of the time of his disability, within which to commence such proceedings."

Obviously this statute contemplates a situation involving a disability to proceed in a legal action to protect rights or liberties. This is made clear by the opinion in Kock v. State, 73 Neb. 354, 102 N.W. 768.

This plaintiff in error has pointed out no disability the effect of which would be to deprive him of any recognizable legal right or liberty. Hence it cannot be said that this provision extends his right to file a petition in error later than one month after the judgment which he seeks to have reviewed.

The motion to dismiss the petition in error is sustained

MOTION TO DISMISS SUSTAINED.