Edgar v. Keller

Harrison, J. The plaintiff commenced an action against the defendants in the county court of Cherry county, and on the 10th day of November, A. D. 1890, and as a result of a trial therein, recovered a judgment for $25 and costs. It appears that -during the progress of appeal proceedings by the defendants the county judge took, in accordance with a promise made to the attorney for defendants, the transcript, together with other and the original papers in the case, into the clerk’s office and left them there for filing; that for some reason the filing mark was not then placed upon the transcript or any of the papers. After the expiration of thirty days from the time the judgment was rendered in the county court the plaintiff filed the following motion: “Comes now the plaintiff and avers and shows to the court that on the 10th day of November, 1890, plaintiff herein recovered judgment against the defendant herein, before F. M. Wolcott, county judge in and for the county of Cherry aforesaid, for the sum of $25 and costs, taxed at [264] $298.75; that on the 11th day of November, 1890, the-defendant executed his appeal bond, which was approved by the said F. M. Wolcott, county judge as aforesaid; that the defendant has failed to perfect his appeal by delivering to the clerk a transcript of said case and having his appeal docketed within thirty days next following the rendition of said judgment; that plaintiff herein has caused a transcript of the proceedings of said county judge to be filed and caused said case to be docketed. Wherefore plaintiff prays that judgment be entered in favor of plaintiff, and against the defendant, for $25 and costs as aforesaid, taxed at $298.75, together with all costs that have accrued in this-court, and that execution be awarded thereon.” On the 22d day of May, 1891, during a term of the district court then being held in Cherry county, affidavits were filed and oral testimony taken, the purpose of the-evidence adduced being to show the leaving, or filing, of the transcript with the clerk within the time required by law in order to perfect the appeal, and on the part of the plaintiff to prove the opposite state of facts. The conclusions, and order of the judge who heard this portion of the case in the district court are contained in the following statement: “And after heaiing the evidence on both sides, the court overruled said motion, and directed the clerk to file the document transcript, as of December the 4th, 1890, upon the-payment of the fees therefor by defendants, to which ruling and judgment of the court the plaintiff then and there duly excepted.” The effect of the above decision of the court was to establish that the defendants had in fact perfected the appeal within the time provided by law, and were entitled to the full benefit of such appeal, and further to retain the case for trial in the district court upon its merits. The question then arises, was this such an order as to entitle the plaintiff to its review in proceedings in error to this court upon such order, separated and independent of the case in which it was a part of the proceed [265] ings? A final order from which error will lie for its review is defined in section 581 of the Code of Civil Procedure, and is stated to be “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, * * * is a final order which may be vacated, modified, or reversed, as provided in this title,” The order complained of in the error proceedings now under consideration was not such an order as is described in the section quoted. It was not final, for, whether it was a correct or erroneous determination of the matters presented for,adjudication, the case was retained by the court for hearing, or trial and judgment, between the parties upon its merits. The plaintiff is not prevented by it from recovering judgment. It follows that it cannot be reviewed in this proceeding. (See Grimes v. Chamberlain, 27 Neb., 605; Hall v. Vanier, 7 Neb., 398; Persinger v. Tinkle, 34 Neb., 5; Artman v. West Point Mfg. Co., 16 Neb., 572; Brown v. Edgerton, 14 Neb., 453; Brown v. Rice, 30 Neb., 236.) The petition in error is Dismissed.