Public-domain · open source
OpenJurist

148 Neb. 27

Barry v. Wolf

Nebraska Supreme Court

Decided February 28, 1947

Nebraska Supreme Court · decided 1947-02-28

Key passage — most relied on by later courts

“A decree to be final must dispose of the whole merits of the case, and leave nothing for the further consideration of the court. An order is final when it affects a substantial right and determines the action. * * * When no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, as in this case, it is interlocutory.”

quoted by 1 later decision, including Harkness v. CENTRAL NEBRASKA PUBLIC POWER & I. DIST.

Relies on Lincoln Joint Stock Land Bank v. Barnes · Anson v. Kruse · State ex rel. Sorensen v. State Bank

Good law ✅— No negative treatment on recordhow we know

Decided 1947-02-28

How this case has been cited

Cited by 28 later decisions — most recently January 1997 · most notably Miller v. Schlereth (1949), Neylon v. Nebraska State Railway Commission (1949)

28 state decisions

60194719501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Wenke, J.

¶1Michael J. Barry, a taxpayer of the city of Omaha, brought this action in the district court for Douglas County against the business manager and members of the board of education of the Omaha public schools and the county superintendent of Douglas County.

¶2His petition, as supplemented, pleads three causes of action whereby he seeks to enforce the provisions of sections 79-1801, 79-1802, 79-1806, and 79-1807, R. S. 1943.

¶3The first cause of action seeks to enjoin the defendants from purchasing any text books for school use unless they are purchased in accordance with the provisions of the foregoing statutes.

¶4The second cause of action seeks an order to compel the defendants to bring a mandamus action against the *28State Superintendent to compel him to perform his official duties as in said statutes provided, to wit: To publish and 'distribute a certified publishers’ price list and contracts.

¶5The third cause of action seeks to enjoin the defendants’ use of a pamphlet, “A Library Book List,” published by the State Superintendent, for the reason that it is not in accordance with the provisions of the foregoing statutes.

¶6On June 21, 1946, before any issues had been joined, the plaintiff filed his motion requesting the trial court to compel the attendance in court of certain persons as witnesses. On the same day the trial court overruled this motion.

¶7On July 5, 1946, the defendant W. J. Hauser, county superintendent of Douglas County, filed his demurrer to the plaintiff’s three separate causes of action. No ruling has ever been had thereon.

¶8On July 8, 1946, the other defendants filed a demurrer to plaintiff’s second cause of action and a motion to make more definite and certain and to strike designated parts of the first and third causes of action. On September 11, 1946, the trial court sustained this motion and demurrer and gave the plaintiff until September 26, 1946, to further plead.

¶9On September 16, 1946, plaintiff filed a motion stating that he would not further plead and asked that the case be set for immediate trial. ■ On September 21, 1946, the trial court overruled. the plaintiff’s request for immediate trial.

¶10Thereafter, on September 24, 1946, plaintiff filed his motion for new trial which was overruled on September 30, 1946. Plaintiff then appealed to this court.

¶11The first question that presents itself is, are any of the orders entered by the trial court final' so that an appeal may be taken therefrom?

¶12Section 25-1911, R. S. 1943, provides: “A judgment rendered or final order made by the district court may *29be reversed, vacated or modified by the Supreme Court for errors appearing on the record.”

¶13Section 25-1902, R. S. 1943, provides: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a ‘final order’ which may be vacated, modified or reversed, as provided in this chapter.”

¶14As stated in Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N. W. 2d 545: “An order is not final when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action. In such a case, the order is interlocutory.”

¶15The sustaining of a motion to make more definite and certain or to strike certain parts of a pleading, without further judicial action, does not constitute a final, appealable order. See State ex rel. Sorensen v. State Bank of Omaha, 131 Neb. 223, 267 N. W. 532; 2 Am. Jur., Appeal and Error, § 73, p. 893.

¶16“An order overruling a demurrer to a petition, in the absence of further proceedings, is not a final order reviewable on appeal.” Anson v. Kruse, 147 Neb. 989, 25 N. W. 2d 896. See 2 Am. Jur., Appeal and Error, § 71, p. 892.

¶17Under these statutes and our holdings we find no final, appealable order was entered by the trial court. While a review of the trial court’s rulings on the matters here complained of can be had on appeal, however., such review can only be had after a final order has been entered. Until such final, appealable order has been entered these rulings, which are interlocutory, are not appealable.

¶18Because of the foregoing the appeal must be dismissed.

¶19Appeal dismissed.

/148/neb/27 · .json · Public domain