Edward Frank Rozman Co. v. Keillor

239 N.W.2d 779 (1976)

195 Neb. 587

EDWARD FRANK ROZMAN COMPANY, Appellee, v. James H. KEILLOR, Appellant.

No. 40268.

Supreme Court of Nebraska.

March 11, 1976.

*780 William M. Homan, Omaha, for appellant.

Edward J. McCarthy, Omaha, for appellee.

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

NEWTON, Justice.

Plaintiff obtained judgment in the municipal court of the city of Omaha, Nebraska, for architectural services. Defendant filed a motion for new trial in the municipal court which was overruled 5 to 6 months after entry of judgment. Defendant then filed an appeal bond and notice of appeal to the District Court. The appeal was dismissed as untimely. We affirm the judgment of the District Court.

Sections 25-1142 and 25-1143, R.R.S. 1943, providing for procedure in the District Court, provide for the filing of motions for new trial.

Section 25-1912, R.R.S.1943, provides an appeal may be taken to the Supreme Court within 1 month from the rendition of judgment or the overruling of a motion for a new trial.

Section 24-528, R.S.Supp., 1974, provides: "All provisions in the codes of criminal and civil procedure governing actions and proceedings in the district court not in conflict with statutes specifically governing procedure in county courts and related to matters for which no specific provisions have been made for county courts shall govern and apply to all actions and proceedings in the county court."

Section 24-529, R.S.Supp., 1974, applies the same rule to municipal courts and applies county court procedure to municipal courts. Defendant contends that the latter statute makes the District Court procedure relating to motions for new trial and appeals applicable in the municipal courts.

Defendant overlooks the provisions in these statutes to the effect that District Court procedures are applicable in municipal courts only when "not in conflict with statutes specifically governing procedure in municipal courts and related to matters for which no specific provisions have been made for municipal court * * *."

Section 24-542, R.S.Supp., 1974, provides that one appealing from a county court (or municipal court) "shall, within ten days from the rendition of judgment, file a notice of appeal." Section 24-543, R.S.Supp., 1974, provides that the appealing party "shall, within ten days from the rendition of judgment," post bond. These statutes clearly set out the method and time for an appeal. There is no provision for the filing of a motion for new trial and to apply the District Court procedure in this regard would conflict with the specific provisions of the statutes mentioned. Furthermore, section 49-802(1), R.R.S.1943, provides that in construing statutes: "When the word may appears, permissive or discretionary action is presumed. When the word shall appears, mandatory or ministerial action is presumed."

Plaintiff's request for attorneys' fees fails to show compliance with either section 25-1801, R.S.Supp., 1974, or Rule 8 b 3, of this court and is disallowed.

*781 The judgment of the District Court is affirmed.

AFFIRMED.