25-2733 Appeals; district court; review record; disposition; costs. - Nebraska Statutes

25-2733. Appeals; district court; review record; disposition; costs.(1) In all cases the district court shall review the case for error appearing on the record made in the county court. The district court shall render a judgment which may affirm, affirm but modify, or reverse the judgment or final order of the county court. If the district court reverses, it may enter judgment in accordance with its findings or remand the case to the county court for further proceedings consistent with the judgment of the district court. Within two judicial days after the decision of the district court becomes final, the clerk of the district court shall issue a mandate in appeals from the county court and transmit the mandate in appeals to the clerk of the county court on the form prescribed by the Supreme Court together with a copy of such decision.(2) The ordering, preparing, signing, filing, correcting, and amending of the bill of exceptions shall be governed by the rules of practice prescribed by the Supreme Court.(3) The judgment of the district court shall vacate the judgment in the county court. The taxation of costs in the district court shall include the costs in the county court. If a judgment of the county court is affirmed or affirmed but modified, interest on the amount of the judgment in the district court that does not exceed the amount of the judgment in the county court shall run from the date of entry of the judgment appealed from the county court. SourceLaws 1981, LB 42, § 6; Laws 1984, LB 13, § 24; Laws 1988, LB 352, § 25; R.S.Supp.,1988, § 24-541.06; Laws 1994, LB 1106, § 4; Laws 1995, LB 538, § 5; Laws 2000, LB 921, § 27; Laws 2008, LB1014, § 13.Operative Date: January 1, 2009Annotations1. Standard of review2. Miscellaneous1. Standard of reviewAppeals in adoption proceedings are reviewed by the district court and Supreme Court for error appearing on the record. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).Under subsection (1) of this section, on appeal of a county court's judgment rendered in a bench trial of a law action, the county court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous; as appellate courts reviewing a judgment in a bench trial of a law action in the county court, the Supreme Court and a district court do not reweigh evidence, but consider the judgment in the light most favorable to the successful party and resolve evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Dammann v. Litty, 234 Neb. 664, 452 N.W.2d 522 (1990).On appeal of a county court's judgment rendered in a bench trial of a law action, the district court reviews the case for error appearing on the record made in the county court, and the factual findings made by the county court have the effect of a verdict and will not be set aside unless such findings are clearly erroneous. In re Estate of Goltl, 233 Neb. 53, 443 N.W.2d 884 (1989).Under the provisions of subsection (1) of this section, the district court and the Nebraska Supreme Court review appeals from the municipal court, other than those arising from the small claims division thereof, for error appearing on the record. Kuehl v. Diesel Power Equip. Co., 228 Neb. 353, 422 N.W.2d 361 (1988).Under the provisions of subsection (1) of this section the district court and the Nebraska Supreme Court generally shall review appeals from the municipal court (now merged with the county court) for error appearing on the record. If the district court determines to reverse the case, it may enter judgment in accordance with its findings. Communications Workers of America v. Abrahamson, 228 Neb. 335, 422 N.W.2d 547 (1988).In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and, as such, its review is limited to an examination of the county court record for error or abuse of discretion. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988).On appeal of a county court's judgment rendered in a bench trial of a law action, the district court reviews the case for error appearing on the record made in the county court. Holden v. Urban, 224 Neb. 472, 398 N.W.2d 699 (1987).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).A district court, on criminal appeals from the county court, acts as an intermediate court of appeals reviewing the record for error. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).Appeals in criminal matters from the county or municipal court to the district court are not reviewed de novo upon the record; they are reviewed for error appearing on the record in the county or municipal court. State v. Kaiser, 218 Neb. 556, 356 N.W.2d 890 (1984).In probate proceedings, the Supreme Court's scope of review is limited to error appearing on the record. In re Estate of Massie, 218 Neb. 103, 353 N.W.2d 735 (1984).Review of an order appointing a conservator is for error appearing on the record made in the county court. In re Estate of Oltmer, 214 Neb. 830, 336 N.W.2d 560 (1983).2. MiscellaneousAn order of a district court becomes final for the purpose of issuing a mandate under this section only after the time for appeal has run. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).Except in the most unusual of cases, for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court, and if not so raised, it will be considered to have been waived. State v. Moore, 235 Neb. 955, 458 N.W.2d 232 (1990).A motion for a new trial is not properly presented to the district court when it sits as an intermediate appellate court. A motion for a new trial is proper only in the trial court. Collection Bureau of Lincoln v. Loos, 233 Neb. 30, 443 N.W.2d 605 (1989).Except in the most unusual cases, to be considered on appeal a question of constitutionality must have been properly raised in the trial court. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).Review of an order appointing a guardian or a conservator is for error appearing on the record made in county court. In re Guardianship and Conservatorship of Sim, 225 Neb. 181, 403 N.W.2d 721 (1987).A motion for new trial based on newly discovered evidence is to be presented to the county court as the fact finder, not to the district court which sat as an appellate court. State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).In cases involving appeals from the county court to the district court prior to the effective date of this section, wherein it appears obvious from the record filed in this court that both the parties and the district judge considered the county court bill of exceptions as having been received in evidence, we will so consider it on appeal to this court. Blaha GMC-Jeep, Inc. v. Frerichs, 211 Neb. 103, 317 N.W.2d 894 (1982).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).