25-1911 Appellate jurisdiction; scope. - Nebraska Statutes

25-1911. Appellate jurisdiction; scope.A judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record. SourceR.S.1867, Code § 582, p. 496; R.S.1913, § 8185; C.S.1922, § 9137; C.S.1929, § 20-1911; R.S.1943, § 25-1911; Laws 1991, LB 732, § 51.Annotations1. Scope2. Appeal proper3. Appeal not proper4. Court review5. Miscellaneous1. ScopeA proceeding to determine the competency of an accused to stand trial is a special proceeding within the meaning of section 25-1902. An order finding the accused competent to stand trial is not a final order from which an appeal may be taken under this section. If an accused is found guilty, he may raise the issue of his competency on appeal. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).The Supreme Court reviews determinations made in the district courts only where there is a judgment rendered or final order made by the district court. Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990).Matters involving appointments of personal representatives, on appeal to the district court and the Supreme Court, are reviewed for error appearing on the record. In re Estate of Casselman, 219 Neb. 653, 365 N.W.2d 805 (1985).Only final orders regarding sufficiency of pleadings are appealable. State ex rel. Douglas v. Ledwith, 204 Neb. 6, 281 N.W.2d 729 (1979).An order affecting a substantial right made in a special proceeding is a final order which may be appealed. State v. Loomis, 195 Neb. 552, 239 N.W.2d 266 (1976).Section 25-1315.03 provides that certain orders are appealable, but it is not exclusive. Edquist v. Commercial Sav. & Loan Assn., 191 Neb. 618, 217 N.W.2d 82 (1974).Unless the context is shown to intend otherwise, action includes any proceeding in a court and only final orders therein are bases for appeals. Grantham v. General Telephone Co., 187 Neb. 647, 193 N.W.2d 449 (1972).There can be no appeal to the Supreme Court until there has been a judgment of final order in the district court. Essay v. Essay, 180 Neb. 291, 142 N.W.2d 337 (1966).Supreme Court is authorized to review final orders for errors exhibited by the record. Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632 (1957).Judgment may be reversed only "for errors appearing on record." Frey v. Drahos, 7 Neb. 194 (1878); Morrill v. Taylor, 6 Neb. 236 (1877).2. Appeal properAn appeal properly perfected under the provisions of this section and section 25-1912 prevents any final judgment or order from becoming final while the appeal is pending. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).A proceeding before a juvenile court is a "special proceeding" for appellate purposes. A judicial determination made following an adjudication in a special proceeding which affects the substantial rights of parents to raise their children is a final, appealable order. In re Interest of Clifford M. et al., 258 Neb. 800, 606 N.W.2d 743 (2000).The three types of final appealable orders are: (1) an order which affects a substantial right and which determines the action and prevents judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered. Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993).A finding that the accused is incompetent to stand trial may be appealed to the Supreme Court as a final order. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).A notice of appeal filed after the court has announced its decision, but before a judgment has been rendered or entered, is effective to confer jurisdiction on the Supreme Court if the notice of appeal shows on its face that it relates to a decision which has been announced by the trial court and the record shows that a judgment was subsequently rendered or entered in accordance with the decision which was announced and to which the notice of appeal relates. Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb. 133, 277 N.W.2d 572 (1979).Action taken by county committee upon reorganization of school district was appealable. School District No. 49 of Lincoln County v. School District No. 65-R of Lincoln County, 159 Neb. 262, 66 N.W.2d 561 (1954).Appeal from district court to Supreme Court was available to review action under Reorganization of School Districts Act. Nickel v. School Board of Axtell, 157 Neb. 813, 61 N.W.2d 566 (1953).Order granting continuance under federal Civil Relief Act was appealable. Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952).A bidder at a judicial sale whose bid has been accepted may appeal from an order setting the sale aside. Enquist v. Enquist, 146 Neb. 708, 21 N.W.2d 404 (1946).The refusal to allow a writ of habeas corpus is a final order. Williams v. Olson, 145 Neb. 282, 16 N.W.2d 178 (1944).Final orders in habeas corpus proceedings may be reviewed on appeal. The test of finality of order for purpose of appeal is whether particular proceeding or action is terminated by judgment. Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944).Order vacating judgment on petition filed after the term is final and appealable. Wunrath v. Peoples Furniture & Carpet Co., 98 Neb. 342, 152 N.W. 736 (1915).An order granting or refusing a license to sell real estate to pay debts of a deceased person is reviewable on appeal. In re Estate of Broehl, 93 Neb. 166, 139 N.W. 1020 (1913).Judgment of district court reversing justice judgment on error is reviewable though case is retained for trial. Ribble v. Furmin, 69 Neb. 38, 94 N.W. 967 (1903).Where court dismisses replevin action on ground that writ was unauthorized and the court without jurisdiction, there is a final judgment. Swain v. Savage, 55 Neb. 687, 77 N.W. 362 (1898).3. Appeal not properAn order dismissing one theory of recovery, while a second theory of recovery arising out of the same cause of action remains pending for trial, is not an appealable, final order. An action for damages arising from a contract of sale allegedly induced by several instances of fraud presents a single cause of action, and an order barring the action as it relates to one such instance only is not an appealable, final order. Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992).A conditional judgment does not constitute a final and, therefore, appealable order. Schaad v. Simms, 240 Neb. 758, 484 N.W.2d 474 (1992).Where all of plaintiff's theories are based on the same operative facts and involve the same parties, summary judgment with regard to only some of the theories does not constitute a final, appealable order which this court may consider. Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990).If a contempt is criminal, the judgment is final and a proper subject for appeal. If the contempt is civil, the judgment is not final; the order is interlocutory and not subject to appeal. State ex rel Kandt v. North Platte Baptist Church, 219 Neb. 694, 365 N.W.2d 813 (1985).An order overruling a motion for leave to amend is interlocutory and, in the absence of a final order, is not appealable. Knoell Constr. Co., Inc. v. Hanson, 208 Neb. 373, 303 N.W.2d 314 (1981).A conditional order is not final and therefore not subject to appeal. Fritch v. Fritch, 191 Neb. 29, 213 N.W.2d 445 (1973).An order denying a plea of the statute of limitations after separate hearing on that issue is not appealable. Wulf v. Farm Bureau Ins. Co., 188 Neb. 258, 196 N.W.2d 164 (1972).Supreme Court had no jurisdiction to review interlocutory ruling in habeas corpus proceeding. Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807 (1961).Where motion for new trial is timely filed, ruling on demurrer does not become final until motion is disposed of. Harkness v. Central Nebraska P. P. & I. Dist., 154 Neb. 463, 48 N.W.2d 385 (1951).An order sustaining a demurrer to a petition, without a dismissal or other final disposition of the case, is not reviewable on appeal. Koehn v. Union Fire Ins. Co., 151 Neb. 859, 39 N.W.2d 808 (1949).The sustaining of a motion to make more definite and certain or to strike certain parts of a pleading, without further judicial action, does not constitute a final, appealable order. Barry v. Wolf, 148 Neb. 27, 26 N.W.2d 303 (1947).Order overruling demurrer is not a final order. Anson v. Kruse, 147 Neb. 989, 25 N.W.2d 896 (1947).Order sustaining motion to strike certain parts of answer, without further judicial action, does not constitute a final, appealable order. State ex rel. Sorensen v. State Bank of Omaha, 131 Neb. 223, 267 N.W. 532 (1936).Where partition has been ordered in suit for that purpose, appeal will not lie until partition is effected and confirmed. Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914).Where appeal is taken before court acts upon report of referee awarding partition, it should be dismissed. Vrana v. Vrana, 85 Neb. 128, 122 N.W. 678 (1909).When record does not disclose final order or judgment, proceedings should be dismissed. Skallberg v. Skallberg, 84 Neb. 717, 121 N.W. 979 (1909).Final order granting or refusing a license to sell intoxicating liquors is not reviewable on appeal. Halverstadt v. Berger, 72 Neb. 462, 100 N.W. 934 (1904).When cause is retained for further action, order is not final. Merle & Heaney Mfg. Co. v. Wallace, 48 Neb. 886, 67 N.W. 883 (1896).4. Court reviewAn appellate court's jurisdiction to grant relief pursuant to this section is limited to reversal, vacation, or modification of the final order from which the appeal is taken. An appellate court cannot address issues that do not bear on the correctness of the final order upon which its appellate jurisdiction is based. State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).The failure to clearly include an instruction to guide the jury concerning defendant's affirmative defenses was plain error, prejudicial to defendant, requiring reversal for a new trial. Omaha Mining Co. v. First Nat. Bank of Bellevue, 226 Neb. 743, 415 N.W.2d 111 (1987).Supreme Court will take judicial notice of all rules of district, separate juvenile, county, municipal, and workmen's compensation courts on file with the Clerk of the Supreme Court. State v. Barrett, 200 Neb. 553, 264 N.W.2d 434 (1978).In absence of bill of exceptions, judgment should be affirmed where sufficiency of pleadings is not questioned. Eisele v. Meeker, 105 Neb. 687, 181 N.W. 609 (1921).Judgment should be reversed where clearly wrong on sole issue of fact involved. In re Estate of O'Connor, 105 Neb. 88, 179 N.W. 401 (1920).Where both parties tried case on theory that a certain essential fact was proved, Supreme Court will not reverse for lack of evidence of such fact. Underwood v. Chicago & N. W. Ry. Co., 100 Neb. 275, 159 N.W. 408 (1916).Court is bound by law of case on first appeal. Home Savings Bank of Fremont v. Shallenberger, 100 Neb. 113, 158 N.W. 455 (1916).Verdict not inconsistent with entire charge should not be set aside because in conflict with isolated instruction. Prediger v. Lincoln Traction Co., 97 Neb. 315, 149 N.W. 775 (1914).Supreme Court has power to modify judgment without vacating or modifying it as a whole. Porter v. Sherman County Banking Co., 40 Neb. 274, 58 N.W. 721 (1894).Original evidence by affidavits cannot be received to contradict record. McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704 (1894).5. MiscellaneousAffirmative relief, for purposes of an appeal, is a reversal, vacation, or modification of a lower court's judgment, decree, or final order. An appellee's argument that a lower court's decision should be upheld on grounds specifically rejected below constitutes a request for affirmative relief, necessitating a cross-appeal in order for that argument to be considered. McDonald v. DeCamp Legal Servs., P.C., 260 Neb. 729, 619 N.W.2d 583 (2000).An appeal properly perfected prevents any final judgment or order from becoming final while the appeal is pending. Dewey v. Dewey, 192 Neb. 676, 223 N.W.2d 826 (1974).Jurisdiction to reverse judgment on appeal must be timely invoked. Campbell v. Campbell, 168 Neb. 533, 96 N.W.2d 417 (1959).Final order need not properly be denominated a judgment. Western Smelting & Refining Co. v. First Nat. Bank of Omaha, 150 Neb. 477, 35 N.W.2d 116 (1948)."Court" includes judge at chambers. Porter v. Flick, 60 Neb. 773, 84 N.W. 262 (1900).Only parties to judgment, or their privies, may appeal or bring error. Burlington & M. R. R. R. Co. v. Martin, 47 Neb. 56, 66 N.W. 15 (1896).Error proceedings in law and equity are identical. Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713 (1881).A statement of errors filed pursuant to Neb. Ct. R. of Cty. Cts. 52(I)(G) (rev. 1993) must be filed with the district court within 10 days of the filing of the bill of exceptions, rather than within 10 days of the filing of the notice of appeal. State v. Stuthman, 2 Neb. App. 317, 509 N.W.2d 410 (1993).An appellant who has incorporated a properly drafted statement of errors directly into a notice of appeal from a judgment of the county court has satisfied the requirement in Neb. Ct. R. of Cty. Cts. 52(I)(G) (rev. 1992) concerning the timely filing of a statement of errors with the district court. State v. Nelson, 2 Neb. App. 289, 509 N.W.2d 232 (1993).