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Hallowell v. Sloan

Alfred Hallowell v. Thomas L. Sloan

Hallowell v. Sloan, 144 N.W. 1054 (Neb. 1914)
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Court
Nebraska Supreme Court · State Highest Courts
Decided
January 7, 1914
Docket
No. 17,360
Judges
Barnes, Fawcett, Hamer, Letton, Reese
Citations
144 N.W. 105495 Neb. 11914 Neb. LEXIS 151
Disposition
Affirmed.
Headnotes
1. Judgment: Vacation: Time for. Filing Petition. Section 318 of the code, which permits the commencement of á suit to vacate a judgment previously rendered, provides that “no such petition shall be filed more than one year after the final judgment was rendered.” Where the final judgment was rendered on the 8th day of April, 1907, and 'the petition for a new trial was not filed until the 3d' day of November, 1909, it is held that the petition was filed too late to confer jurisdiction or authority upon the district court to entertain the suit, and that a general demurrer to the petition was rightly sustained. 2. -: -: -. The taking of an appeal from the original judgment to the supreme court will not have the effect of extending the time within which a petition for a new trial may be filed. See Heilman v. Adler <6 Sons Clothing Co., 60 Neb. 580.
Summary
Appeal from the district court for Thurston county: Guv T. Graves, Judge.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Reese

Text extracted by OCR from a scanned original; check the original for exact wording.

Reese, O. J.

This is an action brought to vacate a judgment and for a new trial in an action by defendant against plaintiff *2 then pending in the district court for Thurston county, and in which the judgment was rendered on the 8th day of April, 1907. The petition in this case was filed on the 3d day of November, 1909. The action is based upon the provisions of section 318 of the code, which provides that “no such petition shall be filed more than one year after the final judgment was rendered.” From the 8th day of April, 1907, to the 3d day of November, 1909, was more than one year. Therefore there was no jurisdiction or authority for the filing of the petition or for any action to be taken by the district court.

An appeal was taken from the entry of the original judgment by the. district court (Sloan v. Hallowell, 83 Neb. 762 ), and a final order of affirmance was rendered March 20, 1909. From that date to the filing of the petition in this case was less than one year, but in Hellman v. Adler & Sons Clothing Co., 60 Neb. 580 , it was held that the “final judgment” referred to in section 318 of the code is the judgment rendered by the district court, and that an appeal to the supreme court does not extend the time within which the petition might be filed.

The judgment of the district court sustaining a general demurrer to the • petition and dismissing the suit is therefore

Affirmed.

Concurrence — Letton

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Letton, J.,

concurring.

I concur for the reason that there are no facts set forth in the petition which malee the case one for the intervention of a court of equity.

Barnes, Fawcett and Hamer, JJ., not sitting.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1915: 119152026peak 1915 · 1

Relies on it most ⓘ

  1. Blair v. Blair153 P. 544 (Kan. 1915)

Most recent

  1. Blair v. Blair153 P. 544 (Kan. 1915)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Hellman v. David Adler & Sons Clothing Co., 83 N.W. 846 (Neb. 1900) 5
Sloan v. Hallowell, 120 N.W. 449 (Neb. 1909) 1

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