Diedrichs v. Empfield

201 N.W.2d 254 (1972)

189 Neb. 120

Samuel S. DIEDRICHS, Appellee, v. Darrell EMPFIELD, Appellant.

No. 38420.

Supreme Court of Nebraska.

October 6, 1972.

Welch & Moylan, James R. Welsh, Omaha, for appellant.

Frank E. Piccolo, Murphy, Pederson & Piccolo, North Platte, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

NEWTON, Justice.

This is an action for the recovery of attorney's fees. On the continuous failure of the defendant to comply with the order of the court for the production of records, the court entered a judgment by default on September 8, 1971. On October 4, 1971, defendant filed a motion requesting vacation of the judgment and the granting of a new trial. Notwithstanding the failure to file the motion within 10 days from the entry of judgment, the court on November 22, 1971, entered a conditional order setting aside the judgment on compliance by defendant with certain specified conditions. Defendant failed to comply but, instead, attempted to appeal, the proceedings therefore being initiated as of December 28, 1971.

Section 25-1912, R.R.S.1943, requires that a notice of appeal be filed within 1 month *255 of the entry of judgment or order overruling a motion for new trial. "Where a notice of appeal is not filed within 1 month from the entry of the judgment or final order appealed from as required by section 25-1912, R.R.S.1943, this court obtains no jurisdiction to hear the appeal, and the appeal must be dismissed." State v. Williamsen, 183 Neb. 173, 159 N.W.2d 206.

This court not having acquired jurisdiction, the appeal in this case must be dismissed.

Appeal dismissed.