Daniels v. Tibbets

Reese, J. This is a proceeding in error to the district court of Lancaster county. Defendant in error has filed in this court a motion to dismiss the proceeding for the reason that there has been no judgment rendered or final order made in the court below. Upon an examination of the transcript we find the following entry made in the district court: “The defendant herein elects to stand on his demurrer heretofore overruled by the court, and excepted to at the time. And now comes the plaintiff by counsel, and the defendant being in default for want of an answer, the court finds the allegations of the petition are confessed by him to be true.” This appears to be the last and only entry of the district court upon its records which in any way attempts to finally dispose of the case. It is neither a final order or judgment as defined by section 581 of the civil code. It is [667] simply a formal finding of fact without proof. Such a proceeding cannot be reviewed by this court. To obtain a review in this court there must be a final judgment upon the merits of the case in the court below. Riddle v. Yates, 10 Neb., 510. Nichols, Shepherd, & Co. v. Hail, 5 Neb., 194. The motion to dismiss is sustained and the cause dismissed. Judgment accordingly. The other judges concur.