Annotations

• 1. Time for commencement

• 2. Persons under disability

• 1. Time for commencement

• Under rule that in a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order, the appellate court lacked jurisdiction over claims dismissed in an order that also granted an evidentiary hearing, because no appeal was taken within 30 days from the date of the order. State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).

• Timeliness of an appeal is a jurisdictional necessity. When the Legislature fixes the time for taking an appeal, the courts have no power to extend the time directly or indirectly; an appellate court may not consider a case as within its jurisdiction unless its authority to act is invoked in the manner prescribed by law. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).

• Timely filing of both the petition and the transcript is mandatory to confer jurisdiction of the reviewing court. Imprisonment is not a disability entitling a prisoner to a period of exclusion from the normal time limits set forth in this section. There must be a showing of a recognizable disability, separate from the imprisonment, that prevents a person from protecting his or her rights under the statute. Lewis v. Camp, 236 Neb. 94, 459 N.W.2d 211 (1990).

• To confer jurisdiction on a district court for proceedings in error, a proper transcript must be filed with the district court within one calendar month after rendition of a final judgment or order to be reviewed. Clark v. Cornwell, 223 Neb. 282, 388 N.W.2d 848 (1986).

• In a proceeding in error, the jurisdiction of the court does not attach until there is presented to it, within the one-month limitation contained in this section, a duly authenticated transcript containing the final order of which complaint is made. Moell v. Mennonite Deaconess Home & Hosp., 221 Neb. 168, 375 N.W.2d 618 (1985).

• A petitioner in error must, within one calendar month after judgment is announced under the law and facts by an inferior tribunal, file his petition with a transcript containing the final judgment sought to be reversed. Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976).

• No authenticated copy of proceedings including order appealed from having been filed within one calendar month, dismissal was proper. Downer v. Ihms, 192 Neb. 594, 223 N.W.2d 148 (1974).

• Error proceedings must be commenced within one month from rendition of the judgment or final order. Friedman v. State, 183 Neb. 9, 157 N.W.2d 855 (1968); Adams v. City of Omaha, 179 Neb. 684, 139 N.W.2d 885 (1966); Brown v. City of Omaha, 179 Neb. 224, 137 N.W.2d 814 (1965); Frankforter v. Turner, 175 Neb. 252, 121 N.W.2d 377 (1963).

• Where review is sought of decision of school district committee, proceeding must be brought within one month of the decision. Longe v. County of Wayne, 175 Neb. 245, 121 N.W.2d 196 (1963).

• Petition in error and transcript must be filed in appellate court within one month of decision of lower tribunal. Harms v. County Board of Supervisors of Dodge County, 173 Neb. 687, 114 N.W.2d 713 (1962).

• Error proceedings may be taken within one month from imposition of sentence or overruling of motion for new trial, whichever is the later. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).

• Error proceedings from order in school district reorganization proceedings must be instituted within one month. Keedy v. Reid, 165 Neb. 519, 86 N.W.2d 370 (1957).

• Limitation of one month in which to institute error proceedings is applicable where the proceeding is for review of judgment or final order in criminal action. Cunningham v. State, 153 Neb. 912, 46 N.W.2d 636 (1951).

• Time to institute error proceedings begins to run when ruling on motion for new trial has been entered on journal. Fisher v. State, 153 Neb. 226, 43 N.W.2d 600 (1950).

• Where defendant fails to file transcript and petition in error in Supreme Court within time provided by law from rendition of judgment or making of final order, error proceedings will be dismissed. Iron Bear v. State, 149 Neb. 634, 32 N.W.2d 130 (1948).

• Trial court may not extend time in which an appeal can be taken by vacating and reentering the same judgment. Dimmel v. State, 128 Neb. 191, 258 N.W. 271 (1935).

• Time commences to run from entry of judgment on court journal as shown by transcript; cannot be contradicted by detached certificate of clerk. In re Getchell's Estate, 98 Neb. 788, 154 N.W. 537 (1915).

• By analogy to this section, time to file appeal bond from justice judgment dates from entry thereof on docket. Bishop v. Lincoln Baseball Club, 98 Neb. 558, 153 N.W. 586 (1915).

• Where motion for new trial was filed, time commences to run from overruling of motion. Bowers v. Raitt, 96 Neb. 460, 148 N.W. 93 (1914); Clark v. McDowell, 58 Neb. 593, 79 N.W. 158 (1899).

• Section applies to criminal cases. Dirksen v. State, 86 Neb. 334, 125 N.W. 618 (1910).

• If transcript is not filed within time provided by law, appellate court has no jurisdiction. Amendment of 1901 was constitutional. Chicago, R. I. & P. Ry. Co. v. Sporer, 72 Neb. 372, 100 N.W. 813 (1904).

• Where ruling on motion for new trial was not made until after rendition of judgment, time in which to institute error proceedings would not begin to run until ruling on motion. City of Lincoln v. First Nat. Bank of Lincoln, 64 Neb. 725, 90 N.W. 874 (1902).

• If transcript is so incomplete as not to affirmatively disclose error, proper order is affirmance, not dismissal. Hesser v. Johnson, 57 Neb. 155, 77 N.W. 406 (1898).

• Jurisdiction attaches though transcript is defective; by leave may amend. Moss v. Robertson, 56 Neb. 774, 77 N.W. 403 (1898).

• Time for instituting proceedings cannot be extended by agreement of parties. Tootle, Hosea & Co. v. Shirey, 52 Neb. 674, 72 N.W. 1045 (1897).

• Omission to file transcript is not excused by failure to obtain bill of exceptions in time. Stull v. Cass County, 51 Neb. 760, 71 N.W. 777 (1897).

• Time cannot be extended by court. Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891, 57 N.W. 567 (1894).

• Time commences to run from rendition of judgment. Phenix Ins. Co. v. Swantkowski, 31 Neb. 245, 47 N.W. 917 (1891).

• All parties to judgment must be brought before court within time prescribed. Curten v. Atkinson, 29 Neb. 612, 46 N.W. 91 (1890).

• 2. Persons under disability

• A showing of a recognizable legal disability, separate from the mere fact of imprisonment, which prevents a person from protecting his or her rights is required in order for a prisoner to be entitled to a period of exclusion from the normal time limitation of this section. Cole v. Kilgore, 241 Neb. 620, 489 N.W.2d 843 (1992); Scott v. Hall, 241 Neb. 420, 488 N.W.2d 549 (1992); Lewis v. Camp, 236 Neb. 94, 459 N.W.2d 211 (1990).

• Provision allowing infant one year exclusive of disability to institute error proceedings does not apply to criminal cases. Newquist v. State, 153 Neb. 917, 46 N.W.2d 639 (1951).

• Imprisonment under sentence in criminal case is not a disability, excusing failure to timely bring proceedings. Kock v. State, 73 Neb. 354, 102 N.W. 768 (1905).

• "Unsound mind" means "insane," total want of understanding. Witte v. Gilbert, 10 Neb. 539, 7 N.W. 288 (1880).