2023 Nebraska Revised Statutes › Chapter 25 - Courts; Civil Procedure › 25-1912 - Appeal; civil and criminal actions; procedure; notice of appeal; docketing fee; filing of transcript.

25-1912.
Appeal; civil and criminal actions; procedure; notice of appeal; docketing fee; filing of transcript.
(1) The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court, including judgments and sentences upon convictions for felonies and misdemeanors, shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within thirty days after the entry of such judgment, decree, or final order, a notice of intention to prosecute such appeal signed by the appellant or appellants or his, her, or their attorney of record and, except as otherwise provided in sections 25-2301 to 25-2310 and 29-2306 and subsection (4) of section 48-638, by depositing with the clerk of the district court the docket fee required by section 33-103.
(2) A notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the entry of the judgment, decree, or final order shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.
(3) The running of the time for filing a notice of appeal shall be terminated as to all parties (a) by a timely motion for a new trial under section 25-1144.01, (b) by a timely motion to alter or amend a judgment under section 25-1329, or (c) by a timely motion to set aside the verdict or judgment under section 25-1315.02, and the full time for appeal fixed in subsection (1) of this section commences to run from the entry of the order ruling upon the motion filed pursuant to subdivision (a), (b), or (c) of this subsection. When any motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion. A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion. No additional fees are required for such filing. A notice of appeal filed after the court announces its decision or order on the terminating motion but before the entry of the order is treated as filed on the date of and after the entry of the order.
(4) Except as otherwise provided in subsection (3) of this section, sections 25-2301 to 25-2310 and 29-2306, and subsection (4) of section 48-638, an appeal shall be deemed perfected and the appellate court shall have jurisdiction of the cause when such notice of appeal has been filed and such docket fee deposited in the office of the clerk of the district court. After being perfected no appeal shall be dismissed without notice, and no step other than the filing of such notice of appeal and the depositing of such docket fee shall be deemed jurisdictional.
(5) The clerk of the district court shall forward such docket fee and a certified copy of such notice of appeal to the Clerk of the Supreme Court, and the Clerk of the Supreme Court shall file such appeal.
(6) Within thirty days after the date of filing of notice of appeal, the clerk of the district court shall prepare and file with the Clerk of the Supreme Court a transcript certified as a true copy of the proceedings contained therein. The Supreme Court shall, by rule, specify the method of ordering the transcript and the form and content of the transcript. Neither the form nor substance of such transcript shall affect the jurisdiction of the Court of Appeals or Supreme Court.
(7) Nothing in this section shall prevent any person from giving supersedeas bond in the district court in the time and manner provided in section 25-1916 nor affect the right of a defendant in a criminal case to be admitted to bail pending the review of such case in the Court of Appeals or Supreme Court.
Source
Laws 1907, c. 162, § 1, p. 495;
R.S.1913, § 8186;
Laws 1917, c. 140, § 1, p. 326;
C.S.1922, § 9138;
C.S.1929, § 20-1912;
Laws 1941, c. 32, § 1, p. 141;
C.S.Supp.,1941, § 20-1912;
R.S.1943, § 25-1912;
Laws 1947, c. 87, § 1, p. 265;
Laws 1961, c. 135, § 1, p. 388;
Laws 1981, LB 411, § 5;
Laws 1982, LB 720, § 2;
Laws 1982, LB 722, § 2;
Laws 1986, LB 530, § 2;
Laws 1986, LB 529, § 25;
Laws 1991, LB 732, § 52;
Laws 1995, LB 127, § 1;
Laws 1997, LB 398, § 1;
Laws 1999, LB 43, § 8;
Laws 1999, LB 689, § 1;
Laws 2000, LB 921, § 15;
Laws 2017, LB172, § 2;
Laws 2018, LB193, § 32.
Cross References
For amount of docket fee, see section 33-103.
Annotations
1. Time for appeal
2. Jurisdiction
3. Motion for new trial
4. Petition in error
5. Miscellaneous
1. Time for appeal
An appeal challenging an order's appointment of a receiver must be filed within 30 days of its entry. Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253 (2021).
An appellant must file his or her notice of appeal and deposit with the clerk of the district court the docket fee required by section 33-103 within 30 days of the entry of the order from which the appeal is taken. Martin v. McGinn, 267 Neb. 931, 678 N.W.2d 737 (2004).
A determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title. In order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment and must seek substantive alteration of the judgment. A motion which merely seeks to correct clerical errors or one seeking relief that is wholly collateral to the judgment is not a motion to alter or amend a judgment, and the time for filing a notice of appeal runs from the date of the judgment. State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
Under this section, a party has 30 days in which to appeal from a final order. State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999).
The notice of appeal and docket fee are mandatory and jurisdictional and must be filed within 30 days of the entry of judgment of the trial court. Under subsection (2) of this section, the running of the time for filing a notice of appeal is terminated by only two events: the timely filing of a motion for new trial under section 25-1143 or a motion to set aside the verdict or judgment under section 25-1315.02. Under subsection (3) of this section, an appeal is deemed perfected and the appellate court has jurisdiction when the notice of appeal is filed and the docket fee is deposited; no other step shall be deemed jurisdictional. In re Interest of Noelle F. & Sarah F., 249 Neb. 628, 544 N.W.2d 509 (1996).
Under subsection (1) of this section, an appeal from the denial of a plea in bar must be filed within 30 days of the denial. State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996).
Orders which are not announced in open court are not formalized until they have been entered on the journal. In such instances, pursuant to subsection (1) of this section, a notice of appeal must be filed within 30 days of the date the order was entered on the journal of the trial court. In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
The filing of a motion to reconsider a sentence made pursuant to the provisions of subdivision (1) of section 29-2308.01 does not affect the time within which a notice of appeal must be filed under the provisions of subsection (1) of this section. State v. Flying Hawk, 227 Neb. 878, 420 N.W.2d 323 (1988); State v. Spotted Elk, 227 Neb. 869, 420 N.W.2d 707 (1988).
The notice of appeal required by subsection (1) of this section is mandatory and jurisdictional and must be filed within the time required by statute; where such notice of appeal is not filed within thirty days from the entry of the judgment, decree, or final order appealed from, as required by subsection (1), the Supreme Court obtains no jurisdiction to hear the appeal, and the appeal must be dismissed. State v. Flying Hawk, 227 Neb. 878, 420 N.W.2d 323 (1988).
In order to vest the Supreme Court with jurisdiction, a notice of appeal must be filed within thirty days of the entry of the final order or the overruling of a motion for new trial. In re Interest of C.M.H. and M.S.H., 227 Neb. 446, 418 N.W.2d 226 (1988); State v. Stickney, 222 Neb. 465, 384 N.W.2d 301 (1986); State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972).
Where a notice of appeal is not filed within 1 month from entry of the final order, the Supreme Court obtains no jurisdiction to hear the appeal, and the appeal must be dismissed. State v. Reed, 226 Neb. 575, 412 N.W.2d 848 (1987); Smith v. Smith, 225 Neb. 93, 402 N.W.2d 688 (1987).
The time within which an appeal must be taken is mandatory and must be met in order for an appellate tribunal to acquire jurisdiction of the subject matter. Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986).
For this court to obtain jurisdiction, in the absence of a timely motion for new trial, a notice of appeal must be filed within one month after rendition of the judgment or decree or the making of the final order. Sederstrom v. Wrehe, 215 Neb. 429, 339 N.W.2d 74 (1983); Novak v. Nelsen, 209 Neb. 728, 311 N.W.2d 8 (1981).
Notice of intent to appeal filed more than thirty days after order denying relief sought in a petition for postconviction relief defeats the jurisdictional requirements of this section. State v. Harrington, 214 Neb. 696, 335 N.W.2d 316 (1983).
A notice of appeal is effective if it is filed within a month of the court's announcement of its judgment either in open court or by letter to the attorneys but before the judgment is entered. State v. Kolar, 206 Neb. 619, 294 N.W.2d 350 (1980).
There can be no appeal of a criminal conviction under this section until after sentence has been imposed. State v. Long, 205 Neb. 252, 286 N.W.2d 772 (1980).
Filing of notice of appeal and payment of docket fee are both mandatory within the one-month appeal period. American Legion Post No. 90 v. Nebraska Liquor Control Commission, 199 Neb. 429, 259 N.W.2d 36 (1977).
An order of the Court of Industrial Relations establishing bargaining units is a final order under this section, and becomes immediately appealable. American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977).
Order determining defendant a sexual sociopath and sentencing him to penal complex is a final order and appeal therefrom is barred after thirty days. State v. Wells, 197 Neb. 584, 249 N.W.2d 904 (1977).
Notice of appeal in a criminal case must be filed with the clerk of the district court within one month after the overruling of a timely filed motion for new trial or sentencing, whichever is later. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976).
On appeal from a county or municipal court, notice of appeal and bond must be filed within ten days after rendition of judgment and this period cannot be prolonged by filing a motion for new trial. Edward Frank Rozman Co. v. Keillor, 195 Neb. 587, 239 N.W.2d 779 (1976).
An order placing a defendant on probation is a final order and appeal must be made within one month after it is entered. State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975).
Appeal must be dismissed where notice of appeal is not filed within one month of judgment or final order. State v. Buss, 192 Neb. 407, 222 N.W.2d 113 (1974); Morimoto v. Nebraska Children's Home Society, 176 Neb. 403, 126 N.W.2d 184 (1964); Bebee v. Kriewald, 173 Neb. 179, 112 N.W.2d 764 (1962); Lockard v. Lockard, 169 Neb. 226, 99 N.W.2d 1 (1959); Campbell v. Campbell, 168 Neb. 533, 96 N.W.2d 417 (1959); Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632 (1957).
Unless notice of appeal is filed within one month from entry of judgment or final order, appeal therefrom must be dismissed. Diedrichs v. Empfield, 189 Neb. 120, 200 N.W.2d 254 (1972); Frenchman-Cambridge Irrigation Dist. v. Ferguson, 154 Neb. 20, 46 N.W.2d 692 (1951).
Appeal was lodged by timely writing judge setting out intent to appeal, indigency, and request for counsel. State v. Moore, 187 Neb. 507, 192 N.W.2d 157 (1971).
Appeal must be taken within one month from rendition of judgment. Pallas v. Dailey, 169 Neb. 277, 99 N.W.2d 6 (1959).
Appeal from judgment in habeas corpus case was properly taken within one month from rendition of judgment. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958).
Right of appeal may be lost if appeal is not timely taken. Mueller v. Keeley, 163 Neb. 613, 80 N.W.2d 707 (1957).
Time for appeal commences to run from rendition and not entry of judgment. Sloan v. Gibson, 156 Neb. 625, 57 N.W.2d 167 (1953).
Proceedings to obtain a reversal of judgment or final order, when motion for new trial is not filed, must be instituted within one month from rendition thereof. Ash v. City of Omaha, 152 Neb. 699, 42 N.W.2d 648 (1950).
Appeal from district court should be dismissed for lack of jurisdiction where transcript in workmen's compensation case was not filed within thirty days of the entry of the judgment. Dobesh v. Associated Asphalt Contractors, 137 Neb. 1, 288 N.W. 32 (1939).
Supreme Court is without jurisdiction unless appeal is taken within statutory time; trial court cannot extend time for taking appeal by vacating decree after term and reentering same decree. Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).
Time for perfecting appeal does not commence to run until district court's judgment is entered on journal. Union Central Life Ins. Co. v. Saathoff, 115 Neb. 385, 213 N.W. 342 (1927).
Amendment of this section shortening time for appeal was not applicable to judgments entered before statute took effect. Raddatz v. Christner, 103 Neb. 621, 173 N.W. 677 (1919).
Time for taking appeal begins to run when decree is entered of record. Anderson v. Griswold, 87 Neb. 578, 127 N.W. 883 (1910).
On appeal by party seeking to intervene after void judgment, time commences to run from dismissal of petition of intervention. Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908).
Transcript must be filed with petition and before issuance of summons to confer jurisdiction. Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522 (1899).
To obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court, a notice of appeal must be filed within 30 days after the entry of such judgment, decree, or final order. State v. Barber, 26 Neb. App. 339, 918 N.W.2d 359 (2018).
Pursuant to this section, a defendant has just 30 days to appeal from the denial of an evidentiary hearing; the failure to do so results in the defendant's losing the right to pursue those allegations further. State v. Huff, 25 Neb. App. 219, 904 N.W.2d 281 (2017).
Under subsection (1) of this section, a notice of appeal must be filed within 30 days of the entry of the final order in order to vest an appellate court with jurisdiction. In re Interest of Shane L. et al., 21 Neb. App. 591, 842 N.W.2d 140 (2013).
Pursuant to subsection (3) of this section, in order to be a tolling motion, a motion to alter or amend must seek substantive alteration of the judgment. Gebhardt v. Gebhardt, 16 Neb. App. 565, 746 N.W.2d 707 (2008).
This section does not contain a "good faith" exception to the requirement of timely payment of the docket fee. In re Interest of Jesse D., 15 Neb. App. 534, 732 N.W.2d 694 (2007).
In order to initiate an appeal, a notice of appeal must be filed within 30 days after entry of the judgment, decree, or final order. State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007).
Section 29-2315.01 must be read in pari material with this section and mandates that when an appellate court grants the State leave to docket an appeal, the State must file a notice of appeal within 30 days in order to perfect jurisdiction in the appellate court. State v. Kissell, 13 Neb. App. 209, 690 N.W.2d 194 (2004).
A notice of appeal filed before the trial court announces its "decision or final order" under subsection (2) of this section in final determination of an issue of costs cannot relate forward. J & H Swine v. Hartington Concrete, 12 Neb. App. 885, 687 N.W.2d 9 (2004).
Subsection (2) of this section was not intended to validate anticipatory notices of appeal filed prior to the announcement of a final judgment. J & H Swine v. Hartington Concrete, 12 Neb. App. 885, 687 N.W.2d 9 (2004).
Since a poverty affidavit which is substituted for the docket fee must be filed within the time and in the manner required for filing the docket fee in subsection (2) of this section, a poverty affidavit filed or deposited after the announcement of a decision or final order but before entry of the judgment, decree, or final order shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry of the judgment, decree, or final order. State v. Billups, 10 Neb. App. 424, 632 N.W.2d 375 (2001).
Where there is no trial, a pleading entitled "Motion for New Trial" is not properly considered as a motion for new trial and does not toll the running of the statutory time for filing an appeal from a trial court's order, but is only a motion to reconsider. Jackson v. Board of Equal. of City of Omaha, 10 Neb. App. 330, 630 N.W.2d 680 (2001).
The filing of a motion to reconsider sentence does not toll the time within which a notice of appeal must be filed under the provisions of subsection (1) of this section. The only two situations in which the running of time for filing a notice of appeal shall be terminated are (1) if a motion for new trial is filed pursuant to section 25-1143 within 10 days after the verdict or (2) the filing of a motion to set aside the verdict pursuant to section 25-1315.02 within 10 days after receipt of the verdict. State v. Camomilli, 1 Neb. App. 735, 511 N.W.2d 155 (1993).
2. Jurisdiction
Pursuant to subsection (3) of this section, a notice of appeal filed before the district court completely disposed of a party's motion for new trial was of "no effect." When a notice of appeal is initially filed before the district court has completely disposed of a motion for new trial, and thus is of no effect, and neither party filed a new notice of appeal after the district court completely disposed of the motion, the appellate court does not acquire jurisdiction over the appeal. Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (2002).
An appellate court has no power to exercise appellate jurisdiction in proceedings to review the judgment of the district court unless the appellant shall have filed a notice of appeal and deposited a docket fee in the office of the clerk of the district court within the time fixed and as provided in this section. State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
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).
Notice of appeal from juvenile court order, which was filed beyond 30-day limit for filing notice of appeal, did not satisfy requirements for appellate jurisdiction. In re Interest of B.M.H., 233 Neb. 524, 446 N.W.2d 222 (1989).
The filing of a notice of appeal under subsection (1) of this section, together with payment of fees unless fees are waived for cause, removes jurisdiction of the cause from the district court to the Supreme Court; once jurisdiction has been removed to the Supreme Court, the district court has no jurisdiction over the cause unless and until remand by the Supreme Court. State v. Spotted Elk, 227 Neb. 869, 420 N.W.2d 707 (1988).
The trial court is without jurisdiction to enter an order granting summary judgment after the defendant has perfected his appeal to the Supreme Court. Beavers v. Graham, 209 Neb. 556, 308 N.W.2d 826 (1981).
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).
Appeal dismissed in Supreme Court for lack of jurisdiction where notice of appeal was a nullity because filed prematurely. Spanheimer Roofing & Supply Co. v. Thompson, 198 Neb. 710, 255 N.W.2d 265 (1977).
An appeal shall be deemed perfected, giving the court jurisdiction, when notice of appeal has been timely filed and the docket fee timely deposited. State v. Price, 198 Neb. 229, 252 N.W.2d 165 (1977).
Order placing defendant on probation was a final and appealable order. State v. Osterman, 197 Neb. 727, 250 N.W.2d 654 (1977).
Any order made by the district court after jurisdiction is vested in the Supreme Court is void. State v. Allen, 195 Neb. 560, 239 N.W.2d 272 (1976).
Where a notice of appeal is not filed within one month from entry of the judgment or final order appealed from as required hereunder, the Supreme Court obtains no jurisdiction and the appeal must be dismissed. State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972); State v. Williamsen, 183 Neb. 173, 159 N.W.2d 206 (1968).
Failure to appeal post conviction decision within one month prevented Supreme Court from obtaining jurisdiction. State v. Pauley, 185 Neb. 478, 176 N.W.2d 687 (1970).
Appeal must be dismissed where notice not filed within time prescribed by this section. Giangrasso v. Eagle Distributing Co., 185 Neb. 406, 176 N.W.2d 16 (1970).
In order to lodge jurisdiction in the Supreme Court where separate decrees are entered in an action brought on a single petition, it is necessary that a separate notice of appeal be filed and a separate docket fee paid on each decree which is appealed. County of Hall v. Engleman, 182 Neb. 676, 156 N.W.2d 801 (1968).
An appeal in a criminal case will not be dismissed because of the failure to state the nature of the offense and the sentence imposed. State v. Goff, 174 Neb. 217, 117 N.W.2d 319 (1962).
An intervener is a party to an action and may appeal or cross-appeal from an unfavorable judgment. Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).
Jurisdiction of appeal in workmen's compensation case is obtained by filing of transcript and depositing docket fee. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957).
Where appeal was taken out of time, it was subject to dismissal. Vasa v. Vasa, 163 Neb. 642, 80 N.W.2d 696 (1957).
Filing of notice of appeal and payment of docket fee are jurisdictional requirements. Ruan Transport Corp. v. Peake, Inc., 163 Neb. 319, 79 N.W.2d 575 (1956).
Filing of notice of appeal and depositing docket fee gives Supreme Court jurisdiction of the cause and all the parties. Fick v. Herman, 161 Neb. 110, 72 N.W.2d 598 (1955); County of Madison v. Crippen, 143 Neb. 474, 10 N.W.2d 260 (1943); Keefe v. Grace, 142 Neb. 330, 6 N.W.2d 59 (1942).
Proceeding under Juvenile Court Act is reviewable by appeal. Krell v. Mantell, 157 Neb. 900, 62 N.W.2d 308 (1954).
Appeal within one month from date of rendition of decree in workmen's compensation case was required in order to confer jurisdiction on Supreme Court. Tucker v. Paxton & Gallagher Co., 152 Neb. 622, 41 N.W.2d 911 (1950).
Deposit of docket fee with clerk of district court is one of jurisdictional steps on appeal. Barney v. Platte Valley Public Power & Irr. Dist., 144 Neb. 230, 13 N.W.2d 120 (1944).
Where, through mistake in preparation, original transcript does not show facts sufficient to give court jurisdiction on appeal, the appellate court will on timely application, permit a correction of the record by filing supplemental transcript. Dobesh v. Associated Asphalt Contractors, 137 Neb. 342, 289 N.W. 369 (1939).
Where notice of appeal is properly given in district court, Supreme Court acquires jurisdiction when transcript is filed, without further notice being required. Marvel v. Craft, 116 Neb. 802, 219 N.W. 242 (1928).
Necessary procedure to vest Supreme Court with jurisdiction is stated. Frazier v. Alexander, 111 Neb. 294, 196 N.W. 322 (1923).
No appeal can be taken from findings of fact or conclusions of law; there must be final judgment. First Nat. Bank of Omaha v. Cooper, 89 Neb. 632, 131 N.W. 958 (1911).
Stipulation was sufficient to give jurisdiction of cross-appeal. Lanham v. Bowlby, 86 Neb. 148, 125 N.W. 149 (1910).
Pursuant to subsection (2) of this section, a trial court's dismissal of one defendant did not announce a judgment, decree, or final order, so as to allow the plaintiff's premature notice of appeal to relate forward, since the trial court's order did not dispose of all claims against all of the parties in each of their capacities. Ferer v. Aaron Ferer & Sons Co., 16 Neb. App. 866, 755 N.W.2d 415 (2008).
A motion to dismiss was a tolling motion under this section, and because a ruling on the motion was not announced prior to the filing of the notice of appeal, the notice of appeal was of no effect and the appellate court did not have jurisdiction to hear the appeal. Beckman v. McAndrew, 16 Neb. App. 217, 742 N.W.2d 778 (2007).
When a trial court's order intended to finally dispose of a matter is announced but not rendered or entered pursuant to section 25-1301, but a party nonetheless files an otherwise timely notice of appeal, the appellate court has "potential jurisdiction" which "springs" into full jurisdiction when section 25-1301 is complied with. Rosen Auto Leasing v. Jordan, 15 Neb. App. 1, 720 N.W.2d 911 (2006).
Pursuant to subsection (3) of this section, when a motion terminating the 30-day appeal period is filed by either party, a notice of appeal filed before the court announces its decision upon the terminating motion has no effect and an appellate court acquires no jurisdiction, whether the notice of appeal is filed before or after the timely filing of the terminating motion. State v. Blair, 14 Neb. App. 190, 707 N.W.2d 8 (2005).
The fact that a motion to reduce sentence was filed prior to filing a notice of appeal does not prevent the Court of Appeals from receiving jurisdiction of the case when the notice of appeal is filed. State v. Camomilli, 1 Neb. App. 735, 511 N.W.2d 155 (1993).
3. Motion for new trial
A motion to alter or amend a judgment is a "terminating motion" under subsection (3) of this section. State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020).
A motion to alter or amend filed within 10 days of a judgment entered by the district court disposing of a petition in error will terminate the time for running of appeal under subsection (3) of this section. McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120 (2019).
A motion for new trial, under section 25-1142, is not a proper motion to terminate the running of time to file a notice of appeal when the court grants a motion for summary judgement. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
The running of the time for filing an appeal is terminated when a motion for new trial is filed by any party within 10 days after a verdict, report, or decision is rendered. Breeden v. Nebraska Methodist Hosp., 257 Neb. 371, 598 N.W.2d 441 (1999).
In a criminal case, the judgment occurs when the verdict and sentence are rendered by the court, and a motion for new trial does not toll the running of the 30-day jurisdictional requirement of this section. State v. Nash, 246 Neb. 1030, 524 N.W.2d 351 (1994).
A motion for new trial is authorized after a judgment notwithstanding the verdict and, during pendency of such motion, suspends or tolls the time limit to comply with requirements for an appeal to the Nebraska Supreme Court. Dunn v. Hemberger, 230 Neb. 171, 430 N.W.2d 516 (1988).
Where the notice of appeal from an order denying a motion for a new trial was untimely filed, the time for appeal ran from the rendition of the judgment. Corell v. Corell, 201 Neb. 59, 266 N.W.2d 84 (1978).
An order in a criminal case overruling a motion for new trial and placing defendant on probation is a final appealable order. State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965).
Time for appeal did not commence to run until motion for new trial was overruled. Skag-Way Department Stores, Inc. v. City of Grand Island, 176 Neb. 169, 125 N.W.2d 529 (1964); Harkness v. Central Nebraska P. P. & I. Dist., 154 Neb. 463, 48 N.W.2d 385 (1951); Cozad v. McKeone, 149 Neb. 833, 32 N.W.2d 760 (1948).
Time for appeal begins to run from date of ruling on motion for new trial even though dismissal of action was based upon a ruling upon demurrer. Weiner v. Morgan, 175 Neb. 656, 122 N.W.2d 871 (1963).
Time for filing motion for new trial commences to run from rendition of judgment. Ricketts v. Continental Nat. Bank of Lincoln, 169 Neb. 809, 101 N.W.2d 153 (1960); Sullivan v. Sullivan, 168 Neb. 850, 97 N.W.2d 348 (1959).
Time for appeal begins to run from overruling of motion for new trial even though petition was dismissed on demurrer. Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235 (1958).
Jurisdictional steps must be taken within one month after rendition of judgment or of overruling of motion for new trial timely filed. Powell v. Van Donselaar, 160 Neb. 21, 68 N.W.2d 894 (1955).
Notice of appeal must be filed and docket fee paid within one month after rendition of decree or overruling of motion for new trial timely filed. Molczyk v. Molczyk, 154 Neb. 163, 47 N.W.2d 405 (1951).
Where motion for new trial was not filed within the time prescribed by law, time for appeal commenced to run from rendition of judgment rather than from overruling of motion for new trial. Ehlers v. Neal, 148 Neb. 697, 28 N.W.2d 558 (1947).
If a motion for new trial is filed in a case in which a judgment of dismissal was entered before any evidence was taken, the time for taking of appeal begins to run from the date of entry of order overruling such motion for new trial. McGerr v. Marsh, 148 Neb. 50, 26 N.W.2d 374 (1947).
Distinction pointed out between when time commences to run for filing of motion for new trial and for filing of transcript on appeal. Power v. Federal Land Bank of Omaha, 141 Neb. 139, 2 N.W.2d 924 (1942).
In equity case the sufficiency of the evidence contained in a bill of exceptions is properly before the Supreme Court for consideration notwithstanding the failure to file motion for a new trial in district court. Union Central Life Ins. Co. v. Burgess, 131 Neb. 20, 266 N.W. 898 (1936).
To secure limited review of an equity case, motion for new trial is not required. Douglas County v. Barker Co., 125 Neb. 253, 249 N.W. 607 (1933).
Time for perfecting appeal in compensation proceeding begins to run from overruling of motion for new trial. Lincoln Packing Co. v. Coe, 120 Neb. 299, 232 N.W. 92 (1930).
Motion for new trial is necessary to review ruling of court on evidence in equity case. Brady v. McGinley, 94 Neb. 761, 144 N.W. 780 (1913).
Motion for new trial is still necessary in law actions. Carmack v. Erdenberger, 77 Neb. 592, 110 N.W. 315 (1906).
Although a motion for new trial generally tolls the running of the statutory time for filing an appeal from a final order of the district court, such is not the case if the proceedings leading up to the motion for new trial do not constitute a trial as contemplated by this section. State v. Plymate, 8 Neb. App. 513, 598 N.W.2d 65 (1999).
A motion for new trial is restricted to a trial court, and where the district court acts in the capacity of an appellate court, such a motion is not a proper pleading and it does not stop the running of time for perfecting an appeal. This is true whether that court is hearing appeals from the county court or from some other lower tribunal. State v. Deutsch, 2 Neb. App. 186, 507 N.W.2d 681 (1993).
A motion for new trial that is not timely filed will not extend the time within which a notice of appeal must be filed. Zoet v. Zoet, 2 Neb. App. 71, 507 N.W.2d 42 (1993).
When a district court is acting in an appellate capacity, a motion for new trial is not a proper pleading and it does not stop the running of time for perfecting an appeal. Woodward v. Yonker, 1 Neb. App. 1011, 510 N.W.2d 480 (1993).
When a motion for new trial terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the entry of the order ruling upon the motion shall have no effect. Horace Mann Cos. v. Pinaire, 1 Neb. App. 907, 511 N.W.2d 540 (1993).
4. Petition in error
Civil proceeding to recover a penalty for violation of city ordinance may not be reviewed by error proceedings. State v. Warren, 162 Neb. 623, 76 N.W.2d 728 (1956).
Only judgments and sentences of district court upon convictions for felonies and misdemeanors under criminal code may be brought to Supreme Court by petition in error. Hoover v. State, 126 Neb. 277, 253 N.W. 359 (1934).
Conviction in contempt proceedings is reviewable only by petition in error as in criminal cases. Gentle v. Pantel Realty Co., 120 Neb. 630, 234 N.W. 574 (1931).
Conviction in contempt proceedings is reviewable only on error. Hanika v. State, 87 Neb. 845, 128 N.W. 526 (1910).
Only judgment upon convictions under criminal code are reviewable on error; other cases, including convictions under city ordinances, are reviewable on appeal. Brandt v. State, 80 Neb. 843, 115 N.W. 327 (1908).
5. Miscellaneous
Misidentification of the appealing party in a notice of appeal is not a fatal flaw depriving the court of appellate jurisdiction, because this section does not require the notice to include the appellant's name. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).
There is nothing in subsection (1) of this section that requires a notice of appeal to include the appellant's name. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).
A defendant proceeding in forma pauperis does not perfect the appeal when the notary stamp on the affidavit to proceed in forma pauperis is expired. State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
The dismissal of a prior unperfected appeal is not res judicata as to a properly perfected second attempt to appeal. State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
Where a court does not reach the merits of a claim, its order does not announce a "decision or final order" which would trigger the saving clause for a premature notice of appeal. State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).
To trigger the savings clause for premature notices of appeal, an announcement must pertain to a decision or order that, once entered, would be final and appealable. Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 901 N.W.2d 278 (2017).
"[A]nnounces" in subsection (3) of this section requires some type of public or official notification by the court and includes a judge's proclamation from the bench, trial docket notes, file-stamped but unsigned journal entries, and signed journal entries which are not file stamped. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
To determine whether a postjudgment motion was effective to terminate the running of time to file a notice of appeal, an appellate court reviews the motion based on the relief it seeks, rather than its title. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
To determine whether the savings clause in subsection (3) of this section applies to a notice of appeal filed before the entry of judgment on a postjudgment motion, the court must determine if the postjudgment motion was timely and effective and then determine if the notice was filed after the court announced its decision on the postjudgment motion. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
The proper procedure to be followed when taking an appeal from a final order of the district court under section 71-1214 is the general appeal procedure set forth in this section. In re Interest of L.T., 295 Neb. 105, 886 N.W.2d 525 (2016).
Subsection (2) of this section applies only to a notice of appeal filed after the announcement of a decision or final order, but before entry of judgment; it was not intended to validate anticipatory notices of appeal filed prior to the announcement of final judgment. Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 (2010).
This section does not expressly require a notice of appeal to display a trial court docket number, or be filed in a particular trial court docket; instead, it requires only a notice of intention to prosecute an appeal from a judgment, decree, or final order of the district court. A notice of appeal filed under the wrong docket number is not fatal to appellate jurisdiction. Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d 465 (2010).
The tolling motions listed in subsection (3) of this section are ineffective when a district court is acting as an intermediate court of appeals. Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008).
An appeal properly perfected under the provisions of this section and section 25-1911 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).
According to the plain language of this section, a poverty affidavit must be filed after the entry of the final order, and thus, a poverty affidavit is insufficient to perfect an appeal unless it is filed during the 30-day period following the rendition of judgment. A poverty affidavit must be filed in the office of the clerk of the district court, and its receipt in any other location is insufficient to perfect an appeal. State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
Per subsection (1) of this section, a motion to discharge for lack of speedy trial, pursuant to section 29-1208, is a final, appealable order. State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
Pursuant to subsection (2) of this section, a notice of appeal filed before a judgment on a motion for new trial is entered has no effect. Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (1997).
In a criminal case, judgment occurs when the verdict and sentence are rendered by the court. In a criminal action, the filing of a motion for new trial shall have no effect on the jurisdictional requirement that the appealing party must file a motion of appeal within 30 days after the sentencing date. State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d 133 (1994).
Under subsection (1) of this section, the appointment of a receiver may be treated as a final order. Robertson v. Southwood, 233 Neb. 685, 447 N.W.2d 616 (1989).
Generally, a criminal appeal may only be brought by the person who is aggrieved by the judgment and who has been given the right to appeal; however, a person who has been released and discharged from further prosecution on a specific complaint is not legally aggrieved, even though the person is open to prosecution for future violations of a similar nature. State v. Sports Couriers, Inc., 210 Neb. 168, 313 N.W.2d 447 (1981).
This section of the Nebraska Constitution does not bar either the Legislature or the Supreme Court from making reasonable rules and regulations governing review on appeal. Nebraska State Bank v. Dudley, 203 Neb. 226, 278 N.W.2d 334 (1979).
This section, specifying what steps are necessary in perfecting an appeal, is deemed jurisdictional and is not unconstitutionally vague so as to violate the due process clause of the Fourteenth Amendment of the U.S. Constitution. Nebraska State Bank v. Dudley, 203 Neb. 226, 278 N.W.2d 334 (1979).
No third party has right to intervene in a criminal case and appeal of news media from restrictive order is dismissed. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
The right to appeal in criminal cases can be exercised only by the party to whom it is given; and generally only a person aggrieved or injured by a judgment may appeal. State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975).
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).
Failure of public defender, on request of defendant, to file notice of appeal within prescribed time did not excuse defendant from requirements of this section. State v. Blunt, 182 Neb. 477, 155 N.W.2d 443 (1968).
Where a defendant invoked remedy by appeal, he could not at the same time carry on proceeding under the Post Conviction Act. State v. Carr, 181 Neb. 251, 147 N.W.2d 619 (1967).
A notice of appeal need not specifically describe the judgment appealed from. Morford v. Lipsey Meat Co., Inc., 179 Neb. 420, 138 N.W.2d 653 (1965).
The Legislature has made an interlocutory order appealable in civil cases. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
Pendency of appeal from order of State Railway Commission did not operate to keep temporary rate in effect that expired by lapse of time. United Mineral Products Co. v. Nebraska Railroads, 177 Neb. 898, 131 N.W.2d 604 (1964).
Transcript on appeal to Supreme Court contains filings made in office of clerk of the district court. Everts v. School Dist. No. 16 of Fillmore County, 175 Neb. 310, 121 N.W.2d 487 (1963).
Appeal was proper from order adjudging defendant guilty of contempt. State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281 (1962).
Adequate cause must be shown for filing of supplemental transcript after submission of case. Robinson v. Meyer, 166 Neb. 178, 88 N.W.2d 219 (1958).
Party to appeal has right to have any omitted pleadings included in supplemental transcript. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).
Award of temporary alimony by district court during pendency of appeal is not authorized. Schlueter v. Schlueter, 158 Neb. 233, 62 N.W.2d 871 (1954).
Appeal, and not error, is the proper procedure to review conviction of violation of municipal ordinance. Wells v. State, 152 Neb. 668, 42 N.W.2d 363 (1950).
General appeal statute does not control appeals from entry of order for judgment notwithstanding verdict. Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533 (1949).
This section is made applicable to appeals from the State Railway Commission. In re Application of Moritz, 147 Neb. 400, 23 N.W.2d 545 (1946).
This section does not apply to filing fees in workmen's compensation cases. Lee v. Lincoln Cleaning & Dye Works, 144 Neb. 659, 14 N.W.2d 227 (1944).
A cross-appeal may be raised in the appellee's brief. In re Estate of Dalbey, 143 Neb. 32, 8 N.W.2d 512 (1943).
Where on second appeal to Supreme Court from Department of Roads and Irrigation substantially every issue presented was considered and determined adversely to appellant on first appeal, the appeal will be dismissed. Cozad Ditch Co. v. Central Nebraska Public Power & Irr. Dist., 132 Neb. 547, 272 N.W. 560 (1937).
Right to appeal is not forfeited by payment of judgment by defendant to avoid sale of his property on execution. Burke v. Dendinger, 120 Neb. 594, 234 N.W. 405 (1931).
Time of filing transcript is determined by time of arrival at clerk's office, and failure to deliver mail is no excuse. Larson v. Wegner, 120 Neb. 449, 233 N.W. 253 (1930).
Supreme Court may allow representative of deceased party to revive action after transcript is filed. Long v. Krause, 104 Neb. 599, 178 N.W. 188 (1920).
Rule in equity cases is unchanged. Ogden v. Garrison, 82 Neb. 302, 117 N.W. 714 (1908).
Requisites of transcripts are stated. Fike v. Ott, 76 Neb. 439, 107 N.W. 774 (1906).
The modification of a child custody action and a contempt action for failure to pay child support presented separate issues, even though both were heard at the same time; one sought new relief, and the other sought to enforce relief previously granted; each order needed to be timely appealed. State on behalf of Nathaniel R. v. Shane F., 30 Neb. App. 797, 973 N.W.2d 191 (2022).
A docket entry/journal entry contained in the "Judges Notes" constituted an interlocutory order disposing of the party's motion to alter or amend; it did not need to be a separate file-stamped document. Pearce v. Mutual of Omaha Ins. Co., 28 Neb. App. 410, 945 N.W.2d 516 (2020).
An unsigned journal entry without a file stamp can constitute an interlocutory order; but it cannot constitute a final, appealable order, particularly when it does not dispose of all issues. Pearce v. Mutual of Omaha Ins. Co., 28 Neb. App. 410, 945 N.W.2d 516 (2020).
An appellant's designation in the notice of appeal of the wrong court was not necessarily fatal, where the notice was timely forwarded to the proper appellate court and no opposing party claimed to have suffered prejudice. In re Guardianship of Breeahana C., 14 Neb. App. 182, 706 N.W.2d 66 (2005).