25-1916 Appeal; supersedeas; cash or bond; effect; undertakings; amount, terms, and conditions; effect of having corporate surety. - Nebraska Statutes

25-1916. Appeal; supersedeas; cash or bond; effect; undertakings; amount, terms, and conditions; effect of having corporate surety.No appeal in any case shall operate as a supersedeas unless the appellant or appellants within thirty days after the entry of such judgment, decree, or final order execute to the adverse party a bond with one or more sureties, make a deposit of United States Government bonds with the clerk, or in lieu thereof make a cash deposit with the clerk for the benefit of the adverse party as follows:(1) When the judgment, decree, or final order appealed from directs the payment of money, the bond, deposit of United States Government bonds, or cash deposit shall be the lesser of (a) the amount of the judgment, decree, or final order and the taxable court costs in the district court, plus the estimated amount of interest that will accrue on the judgment, decree, or final order between its date and the final determination of the cause in the Court of Appeals or Supreme Court and the estimated amount of the costs of appeal, such estimated interest to accrue and estimated court costs to be determined by the trial court, (b) fifty percent of the appellant's net worth, or (c) fifty million dollars. If an appellee proves by a preponderance of the evidence that an appellant is dissipating or diverting assets outside the ordinary course of business to avoid the payment of a judgment, the court may enter any orders necessary to protect the appellee and require the appellant to provide a bond, deposit of United States Government bonds, or cash deposit up to and including the amount required under subdivision (1)(a) of this section.Such bond, United States Government bond, or cash deposit shall be conditioned that the appellant or appellants will prosecute such appeal without delay and pay all condemnation money and costs which may be found against him, her, or them on the final determination of the cause in the Court of Appeals or Supreme Court. When a cash deposit is made, United States Government bonds are deposited, or a bond is provided which is written by a corporate surety company authorized to do business within the State of Nebraska and the cash deposit, United States Government bonds, or supersedeas bond is approved by the trial court in which the judgment was rendered and filed in the court, the general lien of the judgment shall be dissolved;(2) When the judgment, decree, or final order directs the execution of a conveyance or other instrument, the bond, deposit of United States Government bonds, or cash deposit shall be in such sum, not exceeding the lesser of fifty percent of the appellant's net worth or fifty million dollars, as shall be prescribed by the district court, or judge thereof in vacation, conditioned that the appellant or appellants will prosecute such appeal without delay and will abide and perform the judgment or decree rendered or final order which shall be made by the Court of Appeals or Supreme Court in the cause;(3) When the judgment, decree, or order directs the sale or delivery of possession of real estate, the bond, deposit of United States Government bonds, or cash deposit shall be in such sum, not exceeding the lesser of fifty percent of the appellant's net worth or fifty million dollars, as the court, or judge thereof in vacation, shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay, will not during the pendency of such appeal commit or suffer to be committed any waste upon such real estate, and will pay all costs and all rents or damages to such real estate which may accrue during the pendency of such appeal and until the appellee is legally restored thereto; and(4) When the judgment, decree, or final order dissolves or modifies any order of injunction which has been or hereafter may be granted, the supersedeas bond, deposit of United States Government bonds, or cash deposit shall be in such reasonable sum, not exceeding the lesser of fifty percent of the appellant's net worth or fifty million dollars, as the court or judge thereof in vacation shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay and will pay all costs which may be found against him, her, or them on the final determination of the cause in the Court of Appeals or Supreme Court. Such supersedeas bond, deposit of United States Government bonds, or cash deposit shall stay the doing of the act or acts sought to be restrained by the suit and continue such injunction in force until the case is heard and finally determined in the Court of Appeals or Supreme Court. The undertaking given upon the allowance of the injunction shall be and remain in effect until it is finally decided whether or not the injunction ought to have been granted.The changes made to this section by Laws 2004, LB 1207, shall apply to all cases pending on or filed on or after April 16, 2004. SourceG.S.1873, c. 57, § 3, p. 716; Laws 1889, c. 26, § 1, p. 371; Laws 1903, c. 126, § 1, p. 632; R.S.1913, § 8189; C.S.1922, § 9141; Laws 1925, c. 68, § 1, p. 227; C.S.1929, § 20-1916; Laws 1939, c. 16, § 1, p. 94; C.S.Supp.,1941, § 20-1916; R.S.1943, § 25-1916; Laws 1971, LB 377, § 1; Laws 1981, LB 42, § 16; Laws 1986, LB 529, § 26; Laws 1991, LB 732, § 56; Laws 1994, LB 899, § 1; Laws 1999, LB 43, § 10; Laws 2004, LB 1207, § 8.Annotations1. Amount2. Terms and conditions3. Discretion of court4. Effect5. Miscellaneous1. AmountWhere decree orders sale of land, supersedeas bond should be conditioned as set out in subsection (3) hereof with amount fixed by court, but if decree directs payment of money also, supersedeas may be required in amount computed under subsection (1) and conditioned as provided in subsections (1) and (3). The Exchange Bank of Gibbon v. Mid-Nebraska Computer Services, Inc., 188 Neb. 673, 199 N.W.2d 5 (1972).Bond to pay whatever judgment might be rendered covers only money judgment. German Nat. Bank of Beatrice v. Beatrice Rapid Transit & Power Co., 69 Neb. 115, 95 N.W. 49 (1903).Bond not providing payment for value of the use and occupation is ineffective. Collins v. Brown, 64 Neb. 173, 89 N.W. 754 (1902).Order fixing amount of supersedeas bond is not appealable. Green v. Morse, 57 Neb. 798, 78 N.W. 395 (1899).Court may require additional bond to continue supersedeas if shown insufficient in amount. Tulleys v. Keller, 42 Neb. 788, 60 N.W. 1015 (1894).2. Terms and conditionsWhere a decree orders the sale of land, the law in Nebraska explicitly requires that a supersedeas be set out as stated in subsection (3) of this section. Production Credit Assn. of the Midlands v. Schmer, 233 Neb. 785, 448 N.W.2d 141 (1989).Where decree of trial court requires execution of a conveyance, trial court may for purpose of appeal prescribe bond to be executed conditional for the performance of the decree, or the party so required may, in lieu thereof, execute the required conveyance and deposit it with the clerk of the court to abide judgment of appellate court. Walter v. Gillan, 129 Neb. 514, 262 N.W. 33 (1935).Judgment of district court must state who is principal and who are sureties on supersedeas bond, and require plaintiffs to exhaust on execution the property of principal before levying on property of one of sureties. Sonneman v. Dolan, 124 Neb. 830, 248 N.W. 402 (1933); Palmer v. Caywood, 64 Neb. 372, 89 N.W. 1034 (1902), distinguished.Appeal bond from decree of strict foreclosure should be conditioned to pay value of use and occupation. State ex rel. Pinkos v. Rice, 98 Neb. 36, 151 N.W. 925 (1915).Where bond is provided for rent for use of property, it can be enforced although petition does not show rendition of money judgment. Locke v. Skow, 76 Neb. 39, 106 N.W. 1013 (1906).Bond in words of statute superseding decree cancelling deed and quieting title did not cover rents and profits pendente lite. Griswold v. Hazels, 62 Neb. 888, 87 N.W. 1047 (1901).Bond not properly conditioned will not continue injunction in force. O'Chander v. State, 46 Neb. 10, 64 N.W. 373 (1895).On foreclosure of chattel mortgage, court may fix reasonable terms and amount of bond. State ex rel. Baker v. Baxter, 4 Neb. Unof. 869, 96 N.W. 647 (1903).3. Discretion of courtTrial court may in its discretion grant supersedeas in cases not specified in this section, such as a divorce action. Hall v. Hall, 176 Neb. 555, 126 N.W.2d 839 (1964).In other cases, court in its discretion may allow supersedeas; should fix terms as well as amount of bond. Carson v. Jansen, 65 Neb. 423, 91 N.W. 398 (1902).Supersedeas may be allowed in other cases in discretion of court, and mandamus will not lie to compel approval. State ex rel. Dickinson Paper Co. v. Scott, 60 Neb. 98, 82 N.W. 320 (1900).Court in its discretion may allow bond superseding writ of assistance in foreclosure case. Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, 67 N.W. 766 (1886).Court has no discretion with respect to prescribing amount of penalty for supersedeas of judgment for payment of money only. State ex rel. Walton v. Cornish, 48 Neb. 614, 67 N.W. 481 (1896).4. EffectAn order determining child custody will not be superseded as a matter of right merely by the filing of a bond pursuant to this section. Friedenbach v. Friedenbach, 204 Neb. 587, 284 N.W.2d 285 (1979).Where neither cost bond nor supersedeas has been filed, Supreme Court has no jurisdiction on appeal. Heinisch v. Travelers Mutual Casualty Co., 135 Neb. 13, 280 N.W. 234 (1938).Where appellant executes supersedeas bond, but it is filed too late to operate as a supersedeas, it will operate as a cost bond on appeal if filed within time for that purpose. Occidental Bldg. & Loan Assn. v. Carlson, 134 Neb. 574, 279 N.W. 162 (1938).Temporary restraining order cannot be continued in effect by giving supersedeas bond in case where trial court denies permanent injunction. Harbin v. Love, 119 Neb. 76, 227 N.W. 145 (1929).Power of district court is suspended by filing of supersedeas bond. Carroll v. Polfus, 98 Neb. 657, 154 N.W. 213 (1915).Unless bond is given, judgment is enforceable during pendency of appeal; court may grant supersedeas pending motion for new trial. Rice v. Parrott, 76 Neb. 501, 107 N.W. 840 (1906), affirmed on rehearing 76 Neb. 505, 111 N.W. 583 (1907).Order granting writ of assistance in foreclosure is not supersedable by waste bond. Escritt v. Michaelson, 73 Neb. 634, 103 N.W. 300 (1905), affirmed on rehearing 73 Neb. 640, 106 N.W. 1016 (1906).Bond to stay confirmation of order of sale also stays execution on deficiency judgment. Kountze v. Erck, 45 Neb. 288, 63 N.W. 804 (1895).If not filed in twenty days, bond does not operate as supersedeas. Whitaker v. McBride, 5 Neb. Unof. 411, 98 N.W. 877 (1904).Under Nebraska law, which applies to a foreign judgment after the judgment is filed in Nebraska, once a party appeals a monetary judgment for money only and files a supersedeas bond which is approved by the court in which judgment was rendered, the general lien resulting from the judgment is dissolved. Anderson v. Werner Enters., Inc., 7 Neb. App. 294, 581 N.W.2d 104 (1998).5. MiscellaneousIf no motion for new trial is timely filed, a party who wishes to file a supersedeas bond must do so within 30 days of the entry of the judgment, decree, or other final order sought to be reversed, vacated, or modified. If a timely motion for new trial is filed, a party who wishes to file a supersedeas bond must do so within 30 days of the ruling on the motion for new trial rather than the judgment, decree, or other order to which the motion for new trial was directed. Buffalo County v. Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996).Where the owners of property sold in a partition sale appeal confirmation of the sale and file a supersedeas bond, and the confirmation is affirmed on appeal, the stay merely prevented the referee from carrying out the order of the trial court, and the buyer is entitled to profits and liable for taxes during the stay, but is not liable for interest on the unpaid balance of the purchase price, which was not due under the sale terms until delivery of a deed. Kleeb v. Kleeb, 213 Neb. 537, 330 N.W.2d 484 (1983).This section is cited as illustration of the meaning of the term "final judgment." Kometscher v. Wade, 177 Neb. 299, 128 N.W.2d 781 (1964).Order approving consolidation of school districts was not a conveyance of property. School Dist. No. 65 of Perkins County v. McQuiston, 163 Neb. 246, 79 N.W.2d 413 (1956).This section does not make supersedeas prerequisite to review of judgment on appeal. Burke v. Dendinger, 120 Neb. 594, 234 N.W. 405 (1931).Time for filing of supersedeas bond in law action runs from overruling of motion for new trial, not from entry of judgment. First Nat. Bank of University Place v. Gates, 104 Neb. 230, 176 N.W. 726 (1920).Dissolution of order appointing guardian for incompetent is supersedable in discretion of court. Prante v. Lompe, 74 Neb. 210, 104 N.W. 1150 (1905)."Condemnation money" is "found" when judgment below is affirmed. Maloney v. Johnson-McLean Co., 72 Neb. 340, 100 N.W. 423 (1904).Though bond has been given, court may pass on pending motion for new trial. Armstrong v. Mayer, 69 Neb. 187, 95 N.W. 51 (1903).Supreme Court may allow supersedeas. Carson v. Jansen, 65 Neb. 423, 91 N.W. 398 (1902).To maintain action on bond, party need not first exhaust property of appellant. Palmer v. Caywood, 64 Neb. 372, 89 N.W. 1034 (1902).Appeal without bond does not stay proceedings. Dovey v. McCullough, 60 Neb. 376, 83 N.W. 171 (1900).Where trial court denies permission to intervene, intervener has no standing to supersede judgment. State ex rel. Bugbee v. Holmes, 59 Neb. 503, 81 N.W. 512 (1900).Order to receiver to sell real estate is supersedable of right. State ex rel. German Savings Bank v. Fawcett, 58 Neb. 371, 78 N.W. 636 (1899).Superseding order appointing receiver rests in discretion of court. Lowe v. Riley, 57 Neb. 252, 77 N.W. 758 (1898).Surety is not released by death of appellant pending appeal by failure to revive action. Bell v. Walker, 54 Neb. 222, 74 N.W. 617 (1898).Decree for permanent alimony is for payment of money and is supersedable of right. State ex rel. Beard v. Cook, 51 Neb. 822, 71 N.W. 733 (1897).Third subdivision provides for appeal by owner or party in possession, not by purchaser. Penn Mut. Life Ins. Co. v. Creighton Theatre Bldg. Co., 51 Neb. 659, 71 N.W. 279 (1897).Bond is not essential to review or appeal; is indispensable to stay proceedings. Creighton v. Keith, 50 Neb. 810, 70 N.W. 406 (1897).Dissolution of temporary restraining order is not supersedable. State ex rel. Downing v. Greene, 48 Neb. 327, 67 N.W. 162 (1896).If bond is not given, sale vests title in purchaser regardless of reversal of judgment. Green v. Hall, 43 Neb. 275, 61 N.W. 605 (1895).Dismissal of appeal for want of prosecution affirms judgment. Dunterman v. Storey, 40 Neb. 447, 58 N.W. 949 (1894).Unless exception is taken to confirmation of sale, mandamus will not lie to compel supersedeas. State v. Doane, 35 Neb. 707, 53 N.W. 611 (1892).If decree quiets title in plaintiff and no bond is given, bona fide purchaser gets valid title though decree is later reversed. Parker v. Courtnay, 28 Neb. 605, 44 N.W. 863 (1890).Fixing supersedeas is ministerial duty where allowed by this section, and mandamus will lie to compel approval. McBride v. Whitaker, 5 Neb. Unof. 399, 98 N.W. 847 (1904).Administrator need not give bond on appeal. Michigan Mut. Life Ins. Co. v. Klatt, 5 Neb. Unof. 305, 98 N.W. 436 (1904).Where decree is entered for foreclosure of mortgage and for deficiency judgment, party may supersede latter part of decree. State ex rel. Baker v. Baxter, 4 Neb. Unof. 869, 96 N.W. 647 (1903).