Garneau v. Omaha Printing Co.

Norval, C. J.

On the 5tli day of March, 1894, the plaintiff in error filed in this'court a petition in error to obtain a reversal of two judgments recovered against him in the court below by the defendant in error on the 24th day of March, 1894. The cause is submitted upon the motion of the defendant in error to dismiss this proceeding and affirm the cases and render a judgment against the plaintiff in error for five per cent upon the amount of the judgments as provided by section 596 of the Code of Civil Procedure. The grounds *849 •of the motion are two: (1.) Plaintiff in error has failed to perfect the appeal or to file any briefs herein. (2.) The causes were brought to this court solely for delay. The plaintiff in error caused to be filed with the clerk of this court a petition in error, upon which a summons in error was issued and service thereof has been accepted. He has taken no other or further step in the case. No transcript of the judgments and proceedings sought to be reviewed has ever been filed in this court. *

Section 586 of the Code of Civil Procedure provides: “The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment ■or order sought to be reversed, vacated, or modified.” It is clear, under the foregoing provision, that a cause cannot be docketed in this court either on appeal or error until a transcript of the proceedings in the trial court is filed. The transcript of the record is the foundation of the proceeding here, and until the same is filed this court acquires no jurisdiction to hear and determine the cause. Until then there is no case to review. The statute requires that it shall be filed with the petition in error. This was distinctly held in City of Brownville v. Middleton, 1 Neb., 10 . In Ward v. Urmson, 40 Neb., 695 , the petition in error was dismissed on the ground that the transcript filed did not ■contain the final decree rendered in the district court, although it contained the notes or minutes entered by the trial judge upon his docket for the guidance of the clerk in preparing the decree. The case under consideration is much stronger than the precedent cited, since neither the pleading nor the judgments are before us. For want of jurisdiction the petition in error must be dismissed. (See Baker v. Kloster, 41 Neb., 890 .)

By section 596 of the Code of Civil Procedure it is provided: “When a judgment or final order shall be affirmed in the supreme court, the said court shall also render judgment against the plaintiff in error for five per cent upon *850 the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable ground for the proceedings in error.” In Moore v. Herron, 17 Neb., 703 , the section quoted was held unconstitutional. We are asked to consider the question anew, and overrule our former decision. This we cannot now do;, nor can we enter upon a discussion of the subject, since the supreme court has no jurisdiction to pronounce any judgment in thig" cause other than one of dismissal. The petition in error is ••

Dismissed.