25-1903. Petition in error; filing; summons; contents; service, when returnable; cause, when triable.

The proceedings to obtain such reversal, vacation or modification shall be by petition entitled petition in error, filed in a court having power to make such reversal, vacation or modification, setting forth the errors complained of, and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient. The summons shall notify the adverse party that a petition in error has been filed in a certain case, naming it, and shall be returnable on or before the first day of the next term of court, if issued in vacation, and twenty days before the commencement of the term; if issued in term time, or within twenty days before the commencement of the term, it shall be returnable on a day named in said summons. In all cases in the Supreme Court, if a case be docketed twenty days or more before the next succeeding term, it shall stand for hearing at said term. If less than twenty days intervene, the cause shall not stand for trial, except by consent of all the parties thereto, until the second term after the docketing of said cause, except causes brought before the court in the exercise of its original jurisdiction.

Source

Annotations

1. Scope

2. Procedure

3. Miscellaneous

1. Scope

Cited in holding that order of county superintendent was not reviewable by error proceedings. Kosmicki v. Kowalski, 184 Neb. 639, 171 N.W.2d 172 (1969).

Orders made in the exercise of judicial functions by a board inferior to the district court are reviewable by error proceedings. Emry v. Lake, 181 Neb. 568, 149 N.W.2d 520 (1967).

Error proceedings can still be brought to review changes in boundaries of school district made by county superintendent. Languis v. DeBoer, 181 Neb. 32, 146 N.W.2d 750 (1966).

Where two county superintendents hold a hearing on school district reorganization, error proceedings will lie from order of one superintendent denying petition. Frankforter v. Turner, 175 Neb. 252, 121 N.W.2d 377 (1963).

Determination by city council as to sufficiency of paving petition may be reviewed by petition in error. Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328 (1961).

Where appeal is not provided, error proceedings from order of city council are available. Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117 (1958).

Award of appraisers in condemnation proceeding may be reviewed by district court on petition in error. Hoesly v. Department of Roads and Irrigation, 142 Neb. 383, 6 N.W.2d 365 (1942).

Review by district court of an assessment of benefits by a county board in creation of a drainage district is by petition in error. Loup River Public Power Dist. v. Platte County, 141 Neb. 29, 2 N.W.2d 609 (1942), 135 Neb. 21, 280 N.W. 430 (1938).

Appeal from assessment of benefits by county board in establishment of drainage district was not authorized under the statutes. Loup River Public Power District v. Platte County, 135 Neb. 21, 280 N.W. 430 (1938).

The Legislature has provided no appeal to district court from act of city council of city of second class, sitting as board of equalization to levy special assessments for paving, and only way district court gets jurisdiction is by proceedings in error. Roberts v. City of Mitchell, 131 Neb. 672, 269 N.W. 515 (1936).

Order granting or refusing bank charter is reviewable by district court on petition in error. State ex rel. White v. Morehead, 101 Neb. 37, 161 N.W. 1040 (1917).

A request for specific performance is outside the scope of a petition in error. Griess v. Clay Cty. Bd. of Supervisors, 11 Neb. App. 910, 662 N.W.2d 638 (2003).

2. Procedure

A petitioner in error must, within one calendar month after judgment is announced under the law and facts by an inferior tribunal, file his petition with a transcript containing the final judgment sought to be reversed. Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (1976).

Petition is required to contain an assignment of errors. McDonald v. Rentfrow, 171 Neb. 479, 106 N.W.2d 682 (1960).

An error proceeding is in the nature of a new action. Dovel v. School Dist. No. 23 of Otoe County, 166 Neb. 548, 90 N.W.2d 58 (1958).

Upon review of order of school district boards, error proceedings should be taken to district court of county where hearing was held. School Dist. No. 49 of Merrick County v. Kreidler, 165 Neb. 761, 87 N.W.2d 429 (1959).

Summons is required to be issued. From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953).

Service of summons on attorney of record is sufficient. Parker v. Parker, 73 Neb. 4, 102 N.W. 85 (1905).

Summons cannot issue until petition in error and transcript are filed. Ritchey v. Seeley, 68 Neb. 120, 93 N.W. 977 (1903), motion to dismiss granted 68 Neb. 127, 94 N.W. 972 (1903), former decision affirmed on rehearing, 68 Neb. 129, 97 N.W. 818 (1903).

Serving of summons in error on attorney of record is properly made although defendant in error is dead. Link v. Reeves, 63 Neb. 424, 88 N.W. 670 (1902).

Each alleged error must be specially set forth in the petition in error. Ainsworth v. Taylor, 53 Neb. 484, 73 N.W. 927 (1898); Lean v. Andrews, 38 Neb. 656, 57 N.W. 401 (1894).

Notice of appeal given before filing of petition in error cannot be treated as summons in error. Benson v. Michael, 29 Neb. 131, 45 N.W. 276 (1890).

An appeal from a special assessment by a metropolitan‑class city taken as specified in section 14‑813 means that proceedings from a district court shall be the same as an appeal from a county board, and under this section, that means appeal is taken by petition in error and the review is solely of the record made before the tribunal whose action is being reviewed. Jackson v. Board of Equal. of City of Omaha, 10 Neb. App. 330, 630 N.W.2d 680 (2001).

The proceedings to obtain reversal, vacation, or modification of orders issued by tribunals inferior to the district court shall be by petition entitled "Petition in Error", setting forth the errors complained of. Cox v. Douglas Cty. Civ. Serv. Comm., 6 Neb. App. 748, 577 N.W.2d 758 (1998).

3. Miscellaneous

Jurisdiction of a proceeding in error was not defeated by omission of phrase "in error" from the reference in summons to the petition. Campbell v. City of Ogallala, 178 Neb. 663, 134 N.W.2d 597 (1965).

This section has been in force since 1913 revision, and provides effective procedure for review by the district court through proceedings in error of a final order made by the county court in the exercise of probate jurisdiction. In re Berg's Estate, 139 Neb. 99, 296 N.W. 460 (1941).

Right to review final orders of justices of the peace by error proceedings still exists. Engles v. Morgenstern, 85 Neb. 51, 122 N.W. 688 (1909).

Unless petition in error is filed, district court has no jurisdiction. Baacke v. Dredla, 57 Neb. 92, 77 N.W. 341 (1898).