Jurisdictional Statement — Dudley v. Nebraska State Bank

Supreme Court, Y. /

a FILED

JUL 26 1979

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-126

CHARLES R. DUDLEY and

DELORES S. DUDLEY,

Appellants,

Ve

NEBRASKA STATE BANK,

Appellee.

On Appeal From the Supreme Court of Nebraska

JURISDICTIONAL STATEMENT

John T. O'Brien

922 Douglas Street

P. O. Box 3223

Sioux City, Iowa 51102

Attorney for Appellants

OF COUNSEL:

O'Brien & Galvin

922 Douglas Street

Sioux City, Iowa 51102

July 1979

a

INDEX

The Opinions Below -------------------

Statement of the Grounds on Which

Jurisdiction of this Court is

INVORGE? eco ree oseewnoreeoececeeec=

Question Presented by the Appeal -----

The Federal Question is Substantial --

The Supreme Court of Nebraska

should not be permitted to ignore

the due process clause and the

privileges and immunities clause

of the 14th Amendment to the

Constitution of the United States

by trying to plug up a hole ina

vague statute by judicial pro-

nouncement.

Conclusion -<<<<<<<<<<<<<<<<<<--------

Appendix A - Memorandum Decision of

the Supreme Court of Nebraska ---

Appendix B - Notice of Appeal to the

Supreme Court of the United

States with Proof of Service ----

Appendix C - Judgment on Verdict in

District Court of Dakota County,

Nebraska eos moreso esoeerere=----

Appendix D - Order Overruling Motions

in District Court of Dakota

County, Nebraska ----------------

18

25

29

43

Table of Authorities

Cases: Page

Baggett v. Bullitt, 377 U.S. 360,

84 S.Ct. 1316, 12 L.Ed.2d 377

(Wash. 1964) «sess eeeseeoe--- 4,14, 18

Blodgett v. Silberman, 277 U.S. 1

(1927) ----------------------------- 4

Giacco v. Pennsylvania, 382 U.S. 399

(1965) ewmw enn e nn een n ee een---- 4,22,23

Griffin v. ZTilinois, 351.0.8. 12,

76 S.Ct. 585, 100 L.Ed. 891

(1955) ee en ee ee 46,27 ¢ah0¢e9

Harris v. Younger, 281 F.Supp. 507,

reversed on other grounds 91 S.Ct.

746, 401 U.S. 37, 2 L.Ed.2d 669

(D.C.Cal. 1908) ------------------- 14

In Re Mahon, 34 F.525, aff'd 8 S.Ct.

1204, 127 U.S. 700, 32 L.Ed. 283

(D.C.Ky. 1888) ---------<------- 15,16

Jordan v. DeGeorge, 341 U.S. 223,

71 S.Ct. 703, 95 L.Ed. 886 ey er 24,25

McKane v. Durston, 153 U.S. 684 (1894) - 18

Miller v. Schoene, 276 U.S. 272 (1927) -- 4

Nebraska State Bank v. Dudley,

229 N.W.2d 559 (lst case) ---------- 6

Nebraska State Bank v. Dudley,

SESS N Wd 7) Cd caset eee ---- 6

Pallasv. Dailey, 169 Neb. 277,

99 N.W.2d 6 -nen ener nnn een 20

ii

ial on lal a tan lee

Cases: Page

State v. Betts, 196 Neb. 572,

244 NeW. 44 195 qeoesesecsessueg= 10,11

Winters v. New York, 333 U.S. 507

LEST) SOSH Seer eee eR Kar ere Reese 4

Statutes:

Neb. Rev. Stat. Sec. 25-1142 <<<<4+-- 19,21

Neb. Rev. Stat. Sec. 25-1143(1) -8,10,13,19

21,26

Neb. Rev. Stat. Sec. 25-1144 =o2ee=r= 19,21

Neb. Rev. Stat. Sec. 25-1912 -- 4,5,8,9,10,

11,12,13,14,15,17,19,20,21,25,26,27

U. S. Const. amend. XIV pat ae SeSesaeaapadeate

18,22,27

Other Authorities:

p. 1184 --------o- ona = =---- 22

iii

iv

PO ry PH cr ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

CHARLES R. DUDLEY and

DELORES S. DUDLEY,

Appellant,

Vv.

NEBRASKA STATE BANK,

Appellee.

On Appeal From the Supreme Court of Nebraska

JURISDICTIONAL STATEMENT

THE OPINIONS BELOW

The Memorandum Decision of the Supreme

Court of Nebraska has not yet been reported.

A copy of said opinion is attached hereto

as Appendix "A". It is believed that the

opinion will soon be reported in Volume 278,

North Western Reporter, 2d Series.

STATEMENT OF THE GROUNDS ON WHICH THE Appellants contended, at the trial

JURISDICTION OF THIS COURT IS INVOKED ;

: es ; court level after trial and in the Nebraska

This is a civil action, phases of which

Supreme Court, that Section 25-1912 of the

have been heard on three separate occasions

Revised Statutes of Nebraska was invalid

Xu

by the Supreme Court of Nebraska. The

on the ground that it was repugnant to the

issue at the last of three jury trials was

: due process clause and the privileges and

to ascertain the amount of damages due to

immunities clause of the 14th Amendment

these appellants by reason of the wrongful

to the United States Constitution.

seizure of their property by the appellee

. : The judgment or decree sought to be

bank. The jury verdict was for the appel-

reviewed is the ruling of the Supreme Court

lee bank. After trial, these appellants

; ; of Nebraska affirming the trial court's de-

failed to file a motion for a new trial

cra cision overruling these appellants' motions

within the ten days prescribed by Section

| which attacked the constitutionality of

25-1143(1) of the Revised Statutes of

| Section 25-1912 and requested the trial court

‘Nebraska. Thereafter, because of said

; ; to permit the late filing of a motion for a

failure to timely file, the appellants

new trial under Section 25-1143(1) anda

have been wrongfully deprived of their

, : simultaneously-filed motion for a new

right to appeal despite the precise word-

trial.

ing of Section 25-1912 of the Revised

: That ruling was issued on May l, 1979

Statutes of Nebraska, which does not

: ES SE and filed on the same day. No petition

require, as a jurisdictional requirement,

Pe : for rehearing was filed.

the filing of a motion for a new trial.

The notice of appeal was filed in

the District court of Nebraska in and for

Dakota County, the Court possessed with

the record, on July 18, 1979 (attached as

Appendix "B").

Jurisdiction of the appeal is conferred

on this Court by Title 28 of the United

States Code, Section 1257(2). Baggett v.

12 L.Ed.2d 377 (Wash. 1964); Winters v.

New York, 333 U.S. 507, 509 (1947); Miller

v. Schoene, 276 U.S. 272, 277 (1927);

Blodgett v. Silberman, 277 U.S. 1, 7 (1927);

Giaccio v. Pennsylvania, 382 U.S. 399, 402

(1965).

The validity of Section 25-1912 of

the Revised Statutes of Nebraska is here

involved. The pertinent text of that statute

is as follows:

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 sen-

tences upon convictions for felonies

sian

and misdemeanors under the criminal

code, shall be by filing in the of-

fice of the clerk of the district

court in which such judgment, decree '

or final order was rendered, within

one month after the rendition of such

judgment or decree, ... a notice of

intention to prosecute such appeal

signed by appellant or appellants or

his or their attorney of record,

Except as otherwise provided in

section 29-2306, an appeal shall

be deemed perfected, and the Supreme

Court shall have jurisdiction of the

cause when such notice of appeal

shall have been filed, and such doc-

ket fee deposited in the office of

the clerk of the district court, and

after being so 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. (Emphasis

supplied.)

QUESTION PRESENTED BY THE APPEAL

The following question is presented

by this appeal:

Does a state statute which purports

to, but does not fully and accurately set

out "the proceedings to obtain a reversal"

by appeal to the Supreme Court of Nebraska,

violate the due process clause and the

privileges and immunities clause of the

Fourteenth Amendment to the United States jury trial was had as to the monetary damages

. s ° .

Constitution: sustained by the appellants here as a result

STATEMENT OF THE FACTS OF THE CASE of the wrongful acts of the Nebraska State

The appellants in this case respect- Bank, that this jury trial ended in a

fully state that this matter has been re- finding by the jury that the appellants

viewed by the Supreme Court of Nebraska were entitled to no damages despite the

on three separate occasions; that originally previous jury finding that had been upheld

there was a jury trial in Dakota County, by the Supreme Court that the Nebraska

Nebraska, the issue being whether or not State Bank had in fact wrongfully taken

the bank had wrongfully taken the property the property of these appellants.

of the Dudleys (appellants here); that A copy of the Judgment entered is

these appellants prevailed; that the plain- attached hereto and by reference made a

tiff, Nebraska State Bank, appealed; that part hereof, marked Appendix "C". Appen-

the matter was reversed because of erroneous dix "D" is the Order overruling all motions.

jury instructions (194 Neb. 1, 229 N.W.2d It was the intention of these appel-

559); that thereafter a second jury trial lants to appeal this cause for several

was had; that these appellants again pre- meritorious reasons that shall not be set

vailed; that the plaintiff, Nebraska State out herein in this brief; that a motion for

Bank, again appealed; that the Supreme s eae new trial was not filed within ten days for

Court of Nebraska sustained the trial court the reason that during the two previous

and dismissed the appeal (198 Neb. 132, appeals, similar motions were summarily

252 N.W.2d 277); that thereafter a third rejected.

6 | 7

The appeal procedure under Section

25-1912 of the Revised Statute of Nebraska

was followed by the attorneys for the ap-

pellants here. That section did not men-

tion and does not require the filing of a

motion for a new trial as a prerequisite

for an appeal and clearly says, "and no

step other than the filing of such notice

of appeal and the depositing of such docket

fee shall be deemed jurisdictional." Men-

tion of the filing of a motion for a new

trial within ten days is made in a far-

removed section of the Nebraska Code,

25-1143(1). After the ten days had passed,

these appellants filed a motion to permit

the late filing of a motion for new trial;

said motion was overruled by the trial

court as not having been timely filed;

that these appellants had, as aforemen-

tioned, filed their notice of appeal timely,

and they then asked the Supreme Court of

Nebraska to either permit the late filing

Dewcteee *

of the motion for new trial, find that

these appellants (Dudleys) were unavoidably

prevented from timely filing a motion for

a new trial, or in the alternative, to

declare the section involved, 25-1912 of

the Revised Statutes of Nebraska, to be

so vague, indefinite, arbitrary and capri-

cious as to be unconstitutional and fur-

ther requested that said Code section be

found to be a nullity.

The Supreme Court of Nebraska, in a

Memorandum Opinion dated May l, 1979 (see

Appendix "A"), erroneously found that

"Appellate review in civil cases is not a

fundamental right guaranteed by either the

due process or privileges and immunities

clause of 14th Amendment to the Constitu-

tion of the United States."

A review of the procedure should be

brought to the attention of this Court.

In the Nebraska Supreme Court a Notice of

Appeal was filed. At the same time that

the Notice of Appeal was filed a Motion

for a New Trial was filed. At the same

time as the two aforementioned filings,

there was a Motion to Permit the Late

Filing of a Motion for New Trial under

Section 25-1143(1) of the Revised Statutes

of Nebraska; that at the same time an

Affidavit of the appellants' trial court

attorney was attached in furtherance of the

aforesaid Motions. These motions and

filings were timely filed prior to the

thirty-day period provided by Section 25-1912

of the Revised Statutes of Nebraska. The

appellants here were "unavoidably prevented

from filing" a timely motion for a new

trial because of the incompleteness of

Section 25-1912. Judge Kelly at the trial

court level overruled all pending motions.

The Judge's rulings were based on

this Court's rulings in several Nebraska

cases and most recently the case of State

v. Betts, 196 Neb. 572, 244 N.W.2d 195,

which held that any motion for a new trial

10

not timely filed is a nullity. Appellants

here contended before the Nebraska Supreme

Court that the Betts case and others,

because of the incompleteness of Section

25-1912, deprived these appellants and

others in the same circumstances of their

constitutions rights under the 14th Amend-

ment of the Constitution of the United

States and other provisions of the Consti-

tution of Nebraska not pertinent here.

The Supreme Court of Nebraska was

asked to find that the appellants here

were unavoidably prevented from filing a

timely notice of appeal, or in the alter-

native, to find that Section 25-1912 of

the Revised Statute of Nebraska was so

vague, indefinite, arbitrary, capricious

and unreasonable that it is in violation

of the constitutional provisions provided

under the due process clause of the 14th

Amendment of the United States Constitu-

tion, and further requested that thereafter

ll

this cause should be remanded to the Dis-

trict Court, and that these appellants

should be permitted to file a motion for

a new trial, and if they are not awarded

a new trial, to perfect an appeal and then

have the constitutionally-provided right

to present the matter on the merits to the

Supreme Court of Nebraska. In its Memoran-

dum Opinion the Supreme Court of Nebraska

rejected the appeal on all grounds and

erroneously affirmed the district court.

Said Section 25-1912 does not include

any mention of the necessity to file a

Motion for a New Trial in order to perfect

an appeal, nor do the annotations (synopsis

of what this same court has said in the

past about the requirements of the section)

under Section 25-1912 really set out that

the requirements of Section 25-1912 are

incomplete and that the wording of said

section is of no value to those who would

attempt to follow its procedural steps.

12

In a nutshell, no motion for a new

trial was filed because the Nebraska Code

Section 25-1143(1) which sets out the re-

quisite for the filing of a motion for a

new trial is not referred to in 25-1912;

it is only under the annotations under

the section regarding motions for a new

trial that an appellant can be apprised

that the Supreme Court of Nebraska has

repeatedly said that in order to perfect

and prosecute an appeal in Nebraska a

motion for a new trial is necessary. The

text of Section 25-1912 has been previ-

ously set out in this statement.

Section 25-1912 violates the due pro-

cess clause of the 14th Amendment, which

states as follows: "Nor shall any state

deprive any person of life, liberty, or

property, without due process of law; ...

The due process clause of the 14th

Amendment prohibits vague and indefinite

13

legislation. In Baggett v. Bullitt, supra,

the Court said in a similar situation:

The statute therefore fell with-

in the compass of those decisions of

the Court holding that a law forbid-

ding or requiring conduct in terms so

vague that men of common intelligence

must necessarily guess at its meaning

and differ as to its application vio-

lates due process of law. Connally v.

General Construction Co., 269 U.S.

385; Lanzetta v. New Jersey, 306 U.S.

451; Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495; United States v. Cardiff,

344 U.S. 174; Champlin Refining Co. v.

Corporation Comm'n of Oklahoma, 286

U.S. 210.

Further, in Baggett at 373, the Court

said as follows:

Well-intentioned prosecutors and

judicial safeguards do not neutralize

the vice of a vague law.

(See also Harris v. Younger, 281 F.Supp. 507,

reversed on other grounds 91 S.Ct. 746,

401 U.S. 37, 2 L.Ed.2d 669 (D.C.Cal. 1908) .)

It is clear after reading Section

25-1912 that there is no mention of the

requirement of a motion for new trial. The

code section violates the due process

clause and the privileges and immunities

14

clause of the 14th Amendment to the Consti-

tution of the United States. Those rights

are circumvented by Section 25-1912 because

it does not accurately set out the rules

for perfecting a Supreme Court appeal in

the State of Nebraska.

The section also specifically violates

the privileges and immunities clause of

the 14th Amendment, which states as follows:

No state shall make or enforce

any law which shall abridge the pri-

vileges or immunities of the citizens

of the United States.

Said privileges and immunities clause

of the 14th Amendment specifically pro-

hibits any state from abridging the rights

and privileges of its citizens. This is

set out in the case of In Re Mahon, 34 F.

529, G£2°4 6 S.Ct. 1204, 127 U.S. 700,

32 L.Ed. 283 (D.C.Ky, 1888), wherein the

Court said:

This is not a grant to the citi-

zen resident or sojourner, as an

individual, or any right which he

did not therefore have, but it is a

15

'

limitation upon the power of the

states, put in the federal Consti-

tution. It is not a declaration of tion that is not arbitrary, capricious or

which privileges or immunities citi-

zens of the United States are entitled

to, but is a declaration that no

state of the Union shall abridge No reading of Section 25-1912 of the Re-

them. !

to make the appeal is entitled to legisla-

unreasonable and not vague or indefinite.

visted Statutes of Nebraska would alert any

When the privileges and immunity clause

prospective appellant of the duty to file

speaks of rights, it means all rights.

a motion for a new trial within ten days.

It is not necessary under the Federal

The rights of the appellants cannot be

Constitution that the State of Nebraska pro-

encumbered by legal traps. The section is

vide for appellate review, but since it has

in violation of the 14th Amendment of the

SO provided, the provisions must meet Con-

Constitution.

stitutional standards.! The person desiring

defendant. Consequently at all stages

lin Griffin v. Illinois, 351 U.S. 12, of the proceedings the Due Process and

18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1955), y Equal Protection Clauses protect per-

ae Sey ete sons like petitioners from invidious

discriminations. See Cole v. Arkansas,

It is true that a State is not 333 U.S. 196, 201; Dowd v. United

required by the Federal Constitution to States ex rel. Cook, 340 U.S. 206,

provide appellate courts or a right to 208; Cochran v. Kansas, 316 U.S. 255,

appellate review at all. See, e.g., 257; Frank v. Mangum, 237 U.S. 309,

McKane v. Durston, 153 U.S. 684, 687- 327.

688. But that is not to say that a

State that does grant appellate review

can do so in a way that discriminates

against some convicted defendants on

account of their poverty. Appellate

review has now become an integral part

of the Illinois trial system for finally

adjudicating the guilt or innocence of a

17

16

THE FEDERAL QUESTION IS SUBSTANTIAL

The federal question is substantial

since the Supreme Court of Nebraska should

not be permitted to ignore the due process

clause and the privileges and immunities

clause of the 14th Amendment to the Consti-

tution of the United States by trying to

plug up a hole in a vague statute by judicial

pronouncement and base its opinion for doing

so on cases easily distinguishable 2 and

completely ignore the pertinent cases cited

by the appellants (such as Baggett v.

Bullitt, supra).

The problem is not unique to these

appellants. The annotations under motions

2McKane v. Durston, 153 U.S. 684 (1894).

Most of the cases, if not all, cited by

Nebraska Supreme Court in its decision,

go back to the McKane case. All McKane

says is, "It is wholly within the discre-

tion of the state to allow or not allow

such a review." At p. 687. This ignores

Griffin v. Illinois, supra.

18

for new trial show that the Supreme Court

of Nebraska has refused to permit anything

but a pro forma appeal in at least twenty-

two cases despite the fact that the chal-

lenged statute, 25-1912, clearly says that

there are only two things necessary to per-

fect an appeal and there is no mention: of a

motion for new trial.

Pertinent sections of the Revised

Statutes of Nebraska are:

Ch. 25-1142 - "New trial, defined:

grounds”

Ch. 25-1143 - "New trial; application

when made"

Ch. 25-1144 - "New trial - motion

form"

"

Ch. 25-1912 - "Appeal to Supreme Court:

Civil and Criminal Ac-

tions: Procedure:

Notice of Appeal; doc-

keting fee: filing of

transcript"

(All found in Revised Statutes of Nebraska,

Reissue of 1975, Vol. 2.)

Close scrutiny of these Code sections

will reveal nothing that indicates that a

19

motion for a new trial is mandatory prior

to appeal, and in fact 25-1912, the section

under attack here, clearly states the oppo-

site in that it says only the notice and

docket fee are jurisdictional. There are

four pages of annotations after 25-1912

and none of them apprise a reader that

you must first file a motion for a new

trial to get a meaningful appeal.

Let us review what actually happens

and did happen here when no motion for a

new trial is filed in Nebraska.

1. A decision is reached at the

trial court level.

2. No "Motion for New Trial" is filed

in ten days.

3. A Motion for New Trial is filed

after ten days (but is considered a "nullity"

(see Pallasv. Dailey, 169 Neb. 277, 99 N.W.2d

6)).

4. A "Notice of Appeal" is timely

filed.

20

5. The Nebraska Supreme Court accepts

the "Appeal" saying, "We have jurisdiction,

but appellant has failed to 'preserve for

review the trial errors.'"

6. The Nebraska Supreme Court will

then "examine the record only for the pur-

pose of determining whether or not the judg-

ment is supported by the pleadings."

7. This is the same as no appeal at

all. It is an automatic affirmance.

There is no statutory support for this

procedure. It can't be found in 25-1142,

25-1143, 25-1144, 25-1912 or anywhere else

in the Revised Statutes of Nebraska. It

cannot be ascertained even by considering

all four sections at the same time. Sec-

tion 1143 allows one exception, "permitting

the filing of a motion for a new trial after

10 days where party was ‘unavoidably pre-

vented'" from a timely filing. Despite a

series of cases that showed good reasons

for the delay, the annotations show no case

which allowed a late filing for any reason;

21

it is only window dressing.

These appellants readily admit that

any procedure to preserve trial errors is

logical and understandable? but strongly

urge that it cannot be set up by the

Nebraska Supreme Court trying to plug

statutory holes by judicial pronouncements.

In the case of Giacco v. Pennsylvania,

Supra, this Court reversed the Supreme

Court of the State of Pennsylvania, which

had sustained the intermediate appellate

court which had held that the Pennsylvania

Statute assessing court costs was consti-

tutional. The United States Supreme Court

held that the 1860 act violated the due

process clause because of vagueness and

stated that regardless of whether the act

is penal or civil, it must meet the due

process requirements of the 14th Amendment.

4

3See/C.J.S. A

-J.S. Appeal and Error, Sec.

p. 1184. Po

22

ere a

The court went on on page 402 to say:

. Whatever label be given the

1860 act, there is no doubt that it

provides the state with a procedure

for depriving an acquitted defendant

of his liberty and his property. Both

liberty and property are specifically

protected by the 14th Amendment against

any state deprivation which does not

meet the standard of due process and

this protection is not to be avoided

by the simple label a state chooses

to fasten upon its conduct or its

statute.

The Giacco decision goes on to say:

It is established that a law

fails to meet the requirements of

the due process clause if it is so

vague and standardless that it leaves

the public uncertain as to the conduct

it prohibits.

The Court went on to say at page 403:

Implicit in this constitutional

safeguard is the premise that the law

must be one that carries an under-

standable meaning with legal standards

that the courts must enforce. This

state act as written does not even

begin to meet this constitutional

requirement. The state contends that

even if the act would have been void

for vagueness as it was originally

written, subsequent state court inter-

pretations have provided standards

and guides that cure the former

constitutional deficiencies. We do

not agree. (hmphasis Supplied. )

23

In the case of Jordan v. DeGeorge,

341 U.S. 223, 230, 71 S.Ct. 703, 95 L.Ed.

886, Chief Justice Vinson on page 230 takes

the criminal test for "due notice" and

applies it to a civil statute, and states

as follows:

The essential purpose of the

"void for vagueness" doctrine is to

warn individuals of the criminal

consequences of their conduct.

Williams v. United States, 341 U.S.

97, decided April 23, 1951; Screws

v. United States325 U.S. 91, I03-104

(1945). This Court has repeatedly

stated that criminal statutes which

fail to give due notice that an act

has been made criminal before it is

done are unconstitutional deprivations

of due process of law. Lanzetta v.

New Jersey, 306 U.S. 451 (1939);

United States v. Cohen Grocery Co.,

255 U.S. 81 (1921). It should be

emphasized that this statute does

not declare certain conduct to be

criminal. Its function is to apprise

aliens of the consequences which

follow after conviction and sentence

of the requisite two crimes.

Despite the fact that this is

not a criminal statute, we shall never-

theless examine the application of

the vagueness doctrine to this case ...

The test is whether the language con-

veys sufficiently definite warning as

to the proscribed conduct when measured

24

by common understanding and practices.

Connally v. General Construction Co.,

269 U.S. 385 (1926). (Emphasis sup-

plied.)

Nor can the Nebraska Supreme Court ignore

the mandate of Griffin v. Illinois, supra,

which requires due process in this situation.

These are identical situations to what

these appellants and many others have been

subject to by the previous rulings of the

Nebraska Supreme Court.

The question presented is so substantial

as to require plenary consideration with

briefs on the merits and oral arguments.

CONCLUSION

This appeal raises an issue of funda-

mental importance to our system of justice.

This Court should not vate the numerous

cases wherein the Supreme Court of the

State of Nebraska has in effect summarily

dismissed appeals which comply with the

mandate of Section 25-1912, by saying that

they have by subsequent court decisions,

25

in effect, expanded the words, "and no other

matters shall be deemed jurisdictional", of

the statute to include the necessity of

filing a motion for new trial.

The opening words of Section 25-1912,

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 sen-

tences upon conviction for felonies

and misdemeanors under the criminal

code shall be ... (emphasis supplied),

are clear and easily understood until you

find that you have been torpedoed because

they are incomplete, in that they do not

tell you that 183 pages earlier in the same

code at page 584 there is another statute,

25-1143, entitled "New Trial," and in the

annotations thereunder (not in the statute

itself), you are apprised that the Supreme

Court of Nebraska has decided that you get

no real appeal unless you have filed a

motion for a new trial.

These appellants and at least twenty-

two others (as set out in the annotations)

26

have been thereby punished and deprived of

their constitutional rights, and this Court

should not permit it to continue. Section

25-1912 is repugnant to the due process

clause and the privileges and immunities

clause of the 14th Amendment. Plenary

consideration should be permitted.

Respectfully submitted,

4. a

T. O° BRIEN

ttorney for Appellants

Of Counsel:

O'BRIEN & GALVIN

922 Douglas Street

P. O. Box 3223

Sioux City, Iowa 51102

27

APPENDIX "A"

NEBRASKA STATE BANK V. DUDLEY

NO. 42077 Filed May l, 1979

1. Constitutional Law: Appeal and Error.

Appellate review in civil cases is

not a fundamental right guaranteed by

either the due process or privileges and

immunities clauses of the Fourteenth Amend-

ment to the Constitution of the United

States.

2. Appeal and Error.

Where the right to appellate review

is granted by law, it must be afforded in

a nondiscriminating manner.

3. Constitutional Law: Legislature:

Appeal and Error.

Article I, section 24, of the Ne-

braska Constitution, does not bar either

the Legislature or this court from making

reasonable rules and regulations govern-

ing review on appeal.

29

Heard before Krivosha, C. J.,

Clinton, and Hastings, JJ., and Stuart,

District sme. and Kuns, Retired District

Judge.

: CLINTON, J.

This is the third appearance of this

cause in this court. Nebraska State Bank

v. Dudley, 194 Neb. 1, 229 N.W. 2d 559;

198 Neb. 132, 252 N. W. 2d 277. At the

last trial in the District Court for

Dakota County, which involved only the

defendants' counterclaim against the

plaintiff, the jury rendered a verdict

for the plaintiff and judgment was entered

thereon. No motion for a new trial was

filed within 10 days after the verdict as

required by statute. Secs. 25-1143, 25-

1144, R.R.S. 1943; Parker v. Christensen,

192 Neb. 117, 219 N.W.2d 235. At the time

of the filing of a timely notice of appeal

from the judgment, the attorney for the

defendants filed a late motion for a new

30

trial, as well as an application to permit

its filing. The affidavit in support of

the motion to permit late filing alleges

the defendants' attorney, a member of the

Iowa bar, not admitted to practice in

Nebraska, was ignorant of Nebraska law

pertaining to the effect of failure to

file a motion for new trial; the defend-

ants were thus unavoidably prevented from

filing a timely motion for new trial; and

therefore late filing should be allowed

as provided by section 25-1143(1), R.R.S.

1943. The District Court denied the mo-

tion.

The defendants now seek to escape

the consequences of the failure, i.e.,

the limited review availabe (sic) in this

court under such circumstances, by attack-

ing the constitutionality of section 25-

1912, R.R.S. 1943, claiming (1) It is

unconstitutionally vague and therefore

it violates the due process clause of the

31

Fourteenth Amendment to the Constitution

of the United States; and (2) it violates

the privileges and immunities clause of

the Fourteenth Amendment to the Consti-

tution of the United States. The defend-

ants' contentions are not meritorious and

the judgment is affirmed.

Section 25-1912, R.R.S. 1943, inso-

far as is pertinent, reads as follows:

"The proceedings to obtain a reversal,

vacation or modification of judgments and

decrees rendered or final orders made

by the district court, .. . 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

one month after the rendition of such

judgment or decree, or the making of such

final order, or within one month from the

overruling of a motion for a new trial in

said cause, a notice of intention to

prosecute such appeal .. . and, except

as otherwise provided in section 29-2306,

32

by depositing with the clerk of the dis-

trict court the docket fee required by

law in appeals to the Supreme COUFG. « « «

Except as otherwise provided in Section

2942306, an appeal shall be deemed per-

fected, and the Supreme Court shall have

jurisdiction of the cause when such notice

of appeal shall have been filed, and such

docket fee deposited in the office of the

clerk of the district court, and after

being so perfected no appeal shall be dis-

missed 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." The

statutes pertaining to new trial appli-

cable here are sections 25-1142 and 25-

1143, R.R.S. 1943. The first section

defines new trial and states the grounds

therefor. Section 25-1143.R.R.S. 1943,

insofar as pertinent here, reads: "The

application for a new trial must be made,

33

within ten days, either within or without

the term, after the verdict, report or

decision was rendered, except (1) where

unavoidably prevented. ..." Section

25-1144, R.R.S. 1943, prescribes the

form of the motion.

Defendants argue they were misled

because section 25-1912,R.R.S. 1943,

says: ". . . no step other than the

filing of such notice of appeal and the

depositing of such docket fee shall be

deemed jurisdictional." They further

complain that, if one reads the statutes

pertaining to a motion for new trial, one

cannot tell the effect of a failure to

file a motion unless the reader goes fur-

ther and examines the cases which deter-

mine that effect.

The pertinent provisions of section

25-1912, R.R.S. 1943, are not at all

vague in the ordinary sense of the term;

contrariwise, they are perfectly clear.

The defendants took the necessary juris-

34

dictional steps to vest jurisdiction in

this court and we do have jurisdiction.

By failing to file a motion for a new

trial and have it ruled upon, they failed

to preserve for review trial errors. Ne-

braska Children's Home Soc. v. Collins,

195 Neb. 531, 239 N.W. 2d 258. Ina law

action where no motion for new trial is

filed, this court on appeal will examine

the record only for the purpose of deter-

mining whether or not the judgment is

supported by the pleadings.

The defendants' claim of vagueness

thus rests upon the premise that every-

thing one needs to know to perfect an

appeal and preserve trial errors and to

effectively bring all issues before this

court must, to insure due process under

the Fourteenth Amendment to the Consti-

tution of the United States, be set

forth in one section of the statutes.

35

They cite no authority which so holds

and we can find none.

Implicit in the defendants' position

is the claim they have been denied due

process because they are deprived of the

right of appeal under the Constitution

of the United States. The Supreme Court

of the United States, up to this time,

has never found that a right of appeal ~

in a civil matter is inherent in the right

of due process of law, but has held other-

wise. National Union v. Arnold, 348 U.S.

37, 75 S.Ct. 92, 99 L.Ed. 46; Ohio v.

Akron Park District, 281 U. S. 74, 50 S.Ct.

228, 74 L.Ed. 710; Luckenback Steamship

Co. v. United States, 272 U. S. 533, 47

S.Ct. 186, 71 L.Ed. 394; Nowak, Rotunda

& Young, Constitutional Law, p. 499.

mere the right of appeal is granted by

law, due process requires only that the

right be subject to exercise in a nondis-

criminatory fashion. National Union v.

36

O. h aacRalises t

AG eG CCN + Dee Fink oO:

fbn saan vai Md aes

Arnold, supra.

In Life & Casualty Ins. Co. of Ten-

nessee v. Womack, 228 Ala. 70, 151 So.

880, the Supreme Court of Alabama was con-

fronted with a contention similar to that

made here. The petitioner there failed

to properly preserve in the trial court

questions for review in the Supreme Court.

He contended on appeal that due process

under the Fourteenth Amendment required

that nonetheless the Supreme Court of Ala-

bama review all questions raised on the

appeal. The court simply said: "Such

position is untenable. .. . Due process

of law is provided when the party is given

full opportunity to present the questions

of law and fact in the trial court, with

the right to reserve questions for review,

and have them reviewed by the appellate

courts. All this is provided for by law

in an orderly administration of justice."

37

Although the defendants do not claim

any violation of their rights under our

own Constitution, we take note of the fact

that Article I, section 24, provides: "The

right to be heard in all civil cases in the

court of last resort, by appeal, error,

or otherwise, shall not be denied." We

have held on numerous occasions that sec-

tion 24 does not prevent the Legislature

or this court from making reasonable rules

and regulations for a review of a case on

appeal. Schmidt v. Boyle, 54 Neb. 387,

74 N.W. 964; Barney v. Platte Valley Pub-

lic Power and Irrigation District, 144 Neb.

230, 13 N.W. 2d 120; In re Estate of Kothe,

131 Neb. 531, 268 N.W. 464; In re Estate

of Mathews, 125 Neb. 737, 252 N.W. 210;

Paper v. Galbreth, 123 Neb. 841, 244 N.W.

896; School District v. Traver, 43 Neb.

524, 61 N.W. 720.

The contention that section 25-1912,

R.R.S. 1943, constitutes a violation of

the privileges and immunities clause of

38

the Fourteenth Amendment is likewise with-

out merit. That clause is: "No State shall

make or enforce any law which shall abridge

the privileges or immunities of the citi-

zens of the United States." What has

already been said really answers the con-

tention relative to “privileges or immuni-

ties." The design of the privileges and

immunities clause was to insure that no

state could treat a citizen of the United

States, with respect to certain enumerated

fundamental rights, which do not include

appeilate review, any differently than

it treated its own citizens. Slaughter-

House Cases, 83 U.S. (16 Wallace) 36.

21 L.Ed. 394 (1872). The original

particular design of the privileges and

immunities clause was to preserve those

rights established by the Civil Rights

Act and prohibit the states from violating

such rights. See Raoul Berger, Government

39

by Judiciary, C. 3, The "Privileges or

Immunities of a Citizen of the United

States, " p. 37.

The pleadings support the judgment.

| AFFIRMED.

KRIVOSHA, C. J., concurring.

I am in full agreement with the major-

ity opinion in this case. I add this con-

curring opinion solely for the purpose of

highlighting a matter which I believe de-

serves particular attention. In this case

the record indicates that defendants' Iowa

attorney was joined by Nebraska counsel.

The record further indicates that Nebraska

counsel's name appeared on the various

pleadings and on the briefs filed in this

court. Yet Nebraska counsel did not appear

in this court at the time of oral argument,

nor does the record indicate when, if at

all, Nebraska counsel participated in this

matter in the trial court. It is obvious

that had Nebraska counsel been more actively

40

involved in the trial of this case, Iowa

counsel might not have failed to timely

file a motion for new trial.

The purpose of resident counsel join-

ing with nonresident counsel is obvious.

It is to insure that the nonresident coun-

sel will be associated with a counsel in-

volved in the litigation who is knowledg-

able and familiar with the laws and prac-

tices of this state. By permitting his

name to be affixed to a pleading or brief,

a resident lawyer represents to this court

that he is a part of the litigation and a

counsel of record. Accordingly, he should

be held accountable for the transaction

of the litigation to the full extent as if

there were no nonresident counsel. A resi-

dent lawyer should not permit his or her

name to be affixed to pleadings or briefs

unless he or she intends to be involved in

the litigation and familiar with the actions

taken by nonresident counsel. The failure

41

to properly perform in a case in which APPENDIX "B"

counsel's name appears may give rise to

ren ty ; IN THE DISTRICT COURT OF NEBRASKA

subsequent disciplinary action by reason

-<h ‘ IN AND FOR DAKOTA COUNTY

of counsel failing to act in accordance

; NEBRASKA: STATE BANK,

with the Code of Professional Responsi-

Plaintiff-Appellee,

bility as adopted by this court.

vs.

CHARLES R. DUDLEY and

DELORES S. DUDLEY,

Defendant-Appellants.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice in furtherance of Rule 10 of

the Supreme Court Rules is hereby given

that Charles R. Dudley and Delores S.

Dudley, the appellants above named, here-

by appeal to the Supreme Court of the

United States. from the final judgment

of the Supreme Court of Nebraska dated

May 1, 1979, affirming the District Court,

which judgment in effect denied these

appellants their constitutional right

42 43

to full appeal of the errors made by

the trial court.

This appeal is taken pursuant to

28. U.8.C. 1257 (2).

7 /s/ John T. O'Brien

O'BRIEN & GALVIN

922 Douglas Street

Sioux City, Iowa 51102

712/255-0147

Attorney for Charles R.

Dudley and Delores S.

Dudley, Defendants-

Appellants

PROOF OF SERVICE BY ACKNOWLEDGEMENT

OF SERVICE AS PROVIDED IN

SUPREME COURT RULE 33

I, David R. Crary, counsel of

record for the Plaintiff-Appellee, the

Nebraska State Bank, hereby acknowledge

receipt of three copies of foregoing

Notice of Appeal to the Supreme Court of

the United States this 18th day of July,

1979. 3

s/s David R. Crary

44

I, Sandra K. Inkster, as co-counsel

of record for the Plaintiff-Appellee,

The Nebraska State Bank, hereby acknow-

ledge receipt of three copies of fore-

going Notice of Appeal to the Supreme

Court of the United States this 18th

day of July, 1979.

/s/ Sandra K. Inkster

45

APPENDIX "C"

Case No. 8568

Case No. 8653

JUDGMENT ON VERDICT

(Filed March 29, 1978)

NOW, on this 7th day of March, 1978,

this matter came on for trial upon

Defendants' Counterclaim filed herein

against the Plaintiff. Present in court

were the parties and their attorneys,

and also the following named persons as

jurors, to-wit: Carl Stolze, Loraine

Reifenrath, Milo Birkley, Daryle Benson

Jeanne Carstens, Petronilla Rasmussen,

Paul Foreshoe, Duane Nelson, Wilbur Lamp,

Betty Bobier, Nancy Cakebread and Mervin

Gerch, who were duly impaneled and sworn

according to law, and having heard the

testimony, the argument of counsel, and

the instructions of the court, retired in

charge of the bailiff for deliberation,

and on the 8th day of March, 1978, returned

47

their verdict for the Plaintiff, Nebraska

State Bank.

IT IS THEREFORE CONSIDERED, ORDERED

AND ADJUDGED by the Court that the

Defendants’ Counterclaim be dismissed

with prejudice and that the costs of this

action be taxed to the Defendants in the

sum of $673.84.

BY THE COURT:

/s/ UL.W. Kelly Jr.

District Judge

48

APPENDIX "D"

Case No. 8568

ORDER

(Filed July 7, 1978)

NOW, to-wit, on this 27th day of

June, 1978, Defendants' "Motion to Per-

mit Late Filing of Motion For New Trial"

and "Motion For New Trial" came on for

hearing, and the same were submitted on

the pleadings and the Affidavit filed by

Mr. Don O'Brien, Defendants' attorney.

The Court being duly advised finds

that the "Motion To Permit Late Filing

Of Motion For New Trial" is overruled,

and the "Motion For New Trial" dismissed

for the reason it was filed out of time.

IT IS THEREFORE ORDERED that the

"Motion To Permit Late Filing of Motion

For New Trial" be and the same hereby is

overruled, and the “Motion For New

Trial" filed herein be and the same

49

hereby is dismissed for reason it was

filed out of time.

By the Court:

/s/ L. W. Kelly, Jr..

District Judge

50