Summary
This Nebraska Supreme Court opinion addresses whether an order setting aside a default judgment constitutes a final order subject to review by petition in error. The court holds that because the order vacating the judgment was issued at the same term as the original judgment, it is not a final order and therefore not appealable. Consequently, the plaintiff's petition in error is dismissed for lack of a final judgment.
Topics
Practice areas
Questions Presented
- Whether an order entered during the same term that vacates a default judgment and grants the defendants leave to answer is a final order reviewable by petition in error.
- Whether reasons supporting a motion to set aside a default may be stated in a separate affidavit rather than within the motion itself when the trial court considers the affidavit without objection.
Holdings
- An order made during the same term that vacates a default judgment and permits the defendant to answer is not a final order and is not reviewable by petition in error.
- Although a motion ordinarily should contain the reasons relied upon for the requested relief, the reasons may be stated in a separate paper and considered by the trial court when the separate paper is submitted with the motion and considered without objection.
Key quotations
“There is no final order, therefore, from which a petition in error will lie, and the motion to dismiss must be sustained.” (38 Neb. at 338)
“A motion should contain within itself all the reasons relied upon for the action of the court, but where that course is not pursued, but the reasons are assigned in a separate paper and acted upon by the trial court without objection, we have simply to consider the reasons assigned, and not the form in which they are presented.” (38 Neb. at 337)
Factual background
Roh sued the defendants for compensation allegedly due under a contract to complete a church building. The parties pursued settlement efforts, and the defendants did not file an answer before a default judgment was entered for $1,374.60. The district court later set aside the default and granted the defendants leave to answer.
Procedural history
Roh sued the defendants in the District Court of Butler County on a contract for church construction. After a default judgment was entered for $1,374.60, the district court granted the defendants' motion to set aside the default and allowed them forty days to answer. The Nebraska Supreme Court sustained the motion to dismiss because the challenged order was not a final order reviewable by petition in error.