Propeck v. Propeck

Ames, C. This is an action for a divorce begun in the district court for Otoe county. The defendant has not appeared either in that court or in this; why, we do not know. The district court found specially that there had been due service of notice of the pendency of the action by publication in a newspaper, and upon an examination we do not find that he erred in so doing. The petition states two grounds for action, viz., extreme cruelty and total abandonment, without cause, for a term exceeding two years next before the beginning of the action. Both causes appear to be abundantly supported by the evidence, which is preserved in a bill of exceptions. After the cause had been submitted on the petition and proofs, the court made and entered the following order: “And the court, being well advised in the premises, finds the issues herein against the plaintiff, and a decree of divorce as prayed in his petition is refused the said plaintiff. To which plaintiff excepts, and 40 days are given from the rising of the court in which to prepare and serve a bill of exceptions.” This is a finding of facts, but not a judgment. On the contrary, it is an explicit refusal by the court to render a judgment for the plaintiff, and none is rendered against him. There is consequently nothing before this court for review. The plaintiff appealed. We recommend that the appeal be dismissed with costs. Jackson, 0., concurs. Calkins, O., not sitting. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the appeal be dismissed, with costs. Dismissed.