Clark v. Foltyn

Good, O. John Foltyn and W. J. Lueschen each made application to the hoard of trustees of the village of Crestón in Platte county for license to sell intoxicating liquors. Against these applications remonstrances were duly filed by F. E. Clark and others. It was agreed between the applicants and remonstrators that both cases should be heard together, and the evidence taken should be considered in each case. The hearing on the applications and remonstrances was concluded on the 2d day of May, 1908, and resulted in the overruling of the remonstrances, and an order granting the licenses. Remonstrators gave notice of appeal, and on the 7th day of May filed in the district court for said county a transcript of the proceedings had before the village board. On the 9th day of May the applicants for license filed a motion to dismiss the appeals on the grounds: “(1) The court has no jurisdiction of the subject matter. (2) No transcript of the evidence taken on the hearing of said applications before the village board of the village of Crestón has been filed in this court as required by law.” This motion was sustained, and a judgment entered dismissing the appeals. The remonstrators have appealed to this court. In the transcript of the proceedings of the village board there appears a record of the examination of a number of witnessses, but in the certificate of the village clerk [612] attached to the’transcript no reference is made to any evidence. The appellees contend that as the law requires the district court to decide such cases upon the evidence taken before the licensing board, and because the evidence was not taken and filed in the district court, or rather because the certificates make no mention of the evidence taken on the hearing, the court was without jurisdiction, and the appeals should have been dismissed. They also contend that the appeals should have been dismissed because the transcript filed does not contain the petitions of the applicants for licenses and the transcript does not shoAV Avhat the real contention Avas betAveen the applicants and the remonstrators as heard before the village board. In State v. McGuire, 74 Neb. 769, where this question Avas under consideration, the court said: “Such evidence is not essential to give the district court jurisdiction of an appeal from an order granting a license; the filing of a certified transcript of the proceedings containing such order being sufficient for that purpose. Where the district court has acquired jurisdiction of such appeal by the filing of a certified transcript of the proceedings, and the license board fails to transmit the evidence taken before it at the hearing, the district court may enter a rule requiring the board to supply the omission.” In State v. Board of Fire & Police Commissioner. 76 Neb. 741, it was held: “An appeal from the decision of the board in granting a liquor license is taken by giving notice of the intended appeal, and procuring a transcript of the record of the proceedings before the board, and filing the same in the appellate court. When such appeal lias been taken, the court may compel the board to furnish a duly certified transcript of the evidence taken before the board upon the hearing.” Under the rules in these cases, it appears clear that the district court for Platte county was vested with jurisdiction of the cases upon the filing of the transcript'. So far as the question of jurisdiction is concerned, it Avas immaterial Avhether or not the evidence taken before the village board [613] was contained in the transcript, and it was also immaterial as to whether or not any mention of the evidence was made in the certificates attached to the transcript. Appellees contend that appellants had ample time and opportunity to procure a transcript of the evidence and a proper certificate thereto, and that, as the record does not show that appellants asked permission so to do, the district court should not on its own motion direct the village authorities to furnish and file a transcript of the evidence. No one would contend that it was the duty of the district court to take the initiative and on its oAvn motion require the village board to furnish and file a transcript of the evidence. But that is not the question for determination. Was the district court justified in dismissing the appeals because the appellants had not asked permission to supply the transcript of the evidence? To so hold would be to assume that the appellants had been guilty of laches either in filing the transcript of the proceedings Avitkout a transcript of the evidence or in failing to cause a transcript of the evidence, properly certified, to be filed in the district court within two days after filing the transcript of the proceedings and within seven days from the hearing. This, too, in the face of the fact that it was the duty of village authorities, rather than of appellants, to furnish and transmit the transcript of the evidence to the district court. In our opinion such a holding would be drastic in the extreme and exceedingly summary. The contention does not meet Avith favor. The ruling is not entitled to judicial sanction. If the transcript of the proceedings had before the licensing board was defective either in certification or in its contents, such defect could have been readied and considered either by motion to strike from- the files or upon a hearing upon the merits, but could noli properly be considered upon a motion to dismiss the appeal. From Avhat has been said, it follows that the judgment [614] of tbe district court should be reversed and the cause remanded for further proceedings according to law. Dueeie and Epi-erson, CC., concur. By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings according to law. Reversed.