Ritchey v. Seeley

The following opinion on rehearing was filed December 16, 1903. Former decision, Ritchey v. Seeley, ante, p. 127, re-examined and adhered to, Sullivan, O. J., dissenting:

Holcomb, J.

A re-examination of the points involved in the present controversy which were considered and decided at a former hearing is productive of no different result or conclusion from that heretofore, reached and announced in the opinion filed in the case. Ritchey v. Seeley, ante, p. 127. The precise point in controversy is whether under the facts stated in the former opinion this court has acquired jurisdiction over the cause and the parties to the controversy so that it may rightfully review the record *130and pass upon the alleged errors occurring at the trial in the court below. While a proceeding in error under our statute is not essentially the institution of á new and independent action, but rather a proceeding whereby the cause may be removed from the trial court to this court for the purpose of having reviewed alleged errors committed during the progress of the action in the court in Avhich final judgment was rendered, yet, as has been stated by this and the courts of other jurisdictions: “The proceedings in this court are quite analogous to those in ordinary actions. The plaintiff in error is required, Avithin thq time limited by the statute, to file a petition showing his right to the relief demanded. He must bring his adversary into court in the usual way and affirmatively establish the material averments of his pleadings.” Webster v. City of Hastings, 56 Neb. 245, 246, and the authorities therein cited. Repeated decisions of this court hold that in order to entitle an aggrieved party to a review of the record of the trial had in the district court, the requirements of the statute providing for a review by error proceedings must be complied with — that is, that the error proceedings must be begun Avithin the time limited; that a petition in error must be filed in the revieAving court, accompanied by a duly authenticated transcript of the record which it is sought to have reviewed as a basis for the obtaining of such reAview; that thereupon a summons in error may issue, and service be had, and the adverse party thus brought into court and subjected to its jurisdiction. It is argued that the waiver of-summons in the present proceedings by the attorney of record in the lower court is equivalent to a service of summons on the attorney of record, and that the court has thereby acquired jurisdiction over the cause and the parties, and that such service is, on principle, Avithin the rule announced in Link v. Reeves, 63 Neb. 424. It may, we think, be seriously doubted whether that part of section 585 of the Code of Civil Procedure wherein it is provided the defendant in error or his attorney may waive *131in writing the issuing and service of the summons in error can be construed to mean the attorney of record. While not agreeing entirely with the construction contended for, we are of the opinion that, even if accepted, the difficulties in the way of the plaintiff in error have not thereby been removed. It is more probable that the provision of the section referred to means just what it says; that is, that the defendant in error or his attorney at the time of the waiver, whether it be the attorney of record in the court below or another attorney employed for the purpose of defending the error proceedings, may waive the issuing and service of the summons in error. But it has been held, and we are not disposed to question the correctness of the ruling, that the provision of section 581 authorizing the service of summons in error on the attorney of record in the original case is of itself sufficient authority for such attorney to waive the issuance and service of summons. McDonald v. Penniston, 1 Neb. 324. Whichever may be the correct construction, it occurs to us that the crucial point in the present controversy is not whether the attorney of record may waive the issuance and service of summons, but what is the force and effect of the waiver as attempted to be made in the case at bar, and when, if at all, could it become effective? We have decided repeatedly that a summons in error can not issue until after the filing of a petition in error with a transcript of the record of the district court, and that these preliminary steps were necessary in order to give the court jurisdiction. City of Brownville v. Middleton, 1 Neb. 10; Benson v. Michael, 29 Neb. 131, 133; Garneau v. Omaha Printing Co., 42 Neb. 847, 849; Jandt v. Deranlieu, 43 Neb. 422, 423; Slobodisky v. Curtis, 58 Neb. 211, 212. If the rule announced in the decisions cited be a sound one, we think it must follow as a logical deduction therefrom that the waiver of the issuance and service of summons can not be of any force or" effect even though executed by a defendant in error, or with full authority by his attorney or the attorney of record in the original case, *132until there has been filed in the reviewing court a petition in error with a duly authenticated transcript of the record which it is sought to have reviewed. This is the view entertained by the supreme court of Ohio, in McGuire v. Ranney, 49 Ohio St. 372, and must, we think, be held to be correct. Fob the purpose of deciding the precise point in the present controversy, we have confronting us the same condition of affairs as would be the case had the plaintiff in error instituted, his error proceedings at the time he did, and had issued and served, if you please, on the attorney of record, a summons in error in the ordinary way; or as would be the case had the attorney of record at the time of the commencement of the error proceedings come into court and attempted to waive the issuance and service of a summons in error. The question, therefore, to be decided is, can a dissatisfied party to the judgment or final order in the court below after the death of his , adversary institute error proceedings in the appellate court, and have summons issued and served on the attorney of record, or have that individual waive issuance and service thereof, and this court thereby acquire jurisdiction over the cause and the parties to the controversy? The question must, we think, on principle and authority, be answered in the negative. While it is earnestly insisted that there is no difference in principle between the case at bar and Link v. Reeves, supra, we are satisfied there is a marked distinction, which is quite apparent, upon a careful consideration of the two cases. In . the Link case the error proceedings were begun within the time limited by statute, and against a party who was then living, and the service subsequently made on the attorney of record was held good because of the force of the statute providing for such service. Had the law provided, as undoubtedly might be done without violating any fundamental principle, that notice or citation of the commencement of the error proceedings would be effective, and give the court jurisdiction, if filed in the original case in the court below, it could not be doubted that compliance with such provisions, *133even though after the death of the adverse party, would give this court Jurisdiction when the error proceedings were instituted before death, and permit the revival of the action herein in the name of the proper parties as successors to the rights of the deceased. In the present case, however, the error proceedings were instituted subsequent to the death of the defendant in error. There was in reality no action pending, no proceedings begun in this court, and such as were had, were in fact ex parte, and not adversary in character. The action had never been properly removed to this court, because the death of one of the parties while it was yet pending in the trial court prevented further proceedings until the action was revived in the name of the proper party. A marked distinction exists between proceedings in error to obtain a reversal of a judgment or final order in a law action and an appeal in a suit in equity, which latter brings up the case for trial de novo} and is accomplished solely by the filing in due time in this court of a transcript of the record containing the judgment, decree or final order appealed from. In case of an appeal in a suit in equity, the filing of a transcript operates ipso facto as a removal of the cause to the appellate court, and in the event of death, proceedings for.a revivor and substitution are authorized as though the action had been pending in the appellate court since prior to the death of the party. But as we have seen, the right to review by proceedings in error is regulated by an altogether different method of procedure, which-must be followed in order to obtain such review. Ordinarily, after the death of a party to an action, subsequent action before revivor materially affecting the rights of successors in interest is null and void. This must be so in the nature of things, because the court has lost jurisdiction over the deceased and has not acquired it over his legal representatives. The judgment obtained in the trial .court in favor of one who after-wards dies, becomes final, except as the record may be reviewed and the judgment reversed by proceedings in *134error conducted in the mode pointed out by statute, In Kuhnert v. Conde, 39 Kan. 265, the syllabus reads: “After a judgment was rendered in the district court in favor of the plaintiff, he died; and afterward the defendant, for the purpose of reversing such judgment, filed a petition in error and case in the supreme court-, purporting to make the former plaintiff, and him only, the defendant in error. More than one year after the judgment was rendered, it was revived in the district court in the names of the representatives and successors of the former plaintiff. Held, That the proceeding in error in the supreme court must be dismissed, for the reason that it was not legally brought in the supreme court, and there has at no time been any defendant in error.” It is said in the opinion: “Before any revivor was had or even attempted, an attempt was made to bring the case to the supreme court. Of course that attempt was abortive. It was attempted to make Conde the defendant in error, but as Conde was dead he could not be made a defendant in error. He could not appear in any court and defend, nor could Bird nor any one else legally appear for him as an attorney or otherwise. Bird ceased to be an attorney for Conde when Conde died. NO service of summons could be made upon Conde after his death and no waiver of sendee or of summons could be ha.d by the consent of Bird, or otherwise.” “Indeed,” says the court, “there never has been any defendant in error in this court; the case has never legally been brought to this court and in law has never been in this court at all and it is now too late to bring it here.” Coffin v. Edgington, 23 Pac. (Idaho) 80, is a case decided by the supreme court of Idaho. It is there held that in an appeal to that court under provisions of statute requiring notice of appeal the appellate court will not acquire jurisdiction where, after judgment is rendered in the trial court, but before notice of appeal was filed or served, one of the defendants died and no. substitution has been mada The proceedings on appeal, it is ruled, *135were null and void as to representatives of the deceased defendant. The decision of the Idaho supreme court is in harmony with and follows those of the supreme court of California, several of which are cited in the. opinion. The following authorities may also he cited as being in point on the questions herein considered and in support of the conclusion reached: Harryman v. Harryman, 49 Md. 67; Smith v. Cunningham, 2 Tenn. Ch. 565; Shartzer v. Love, 40 Cal. 93; Branham v. Johnson, 62 Ind. 259; Moore v. Slack, 140 Ind. 38; Kennard v. Kennard, 35 Ohio St. 660; Ray v. Pease, 37 S. E. (Ga.) 875; Terry v. Schultz, 38 S. W. (Tex.) 374. The former judgment is adhered to.

Former decision adhered to.