Spanheimer Roofing & Supply Co. v. Thompson ( 1977 )

White, C. Thomas, J.

This is an appeal from the judgment of the District Court finding that the plaintiff was entitled to a mechanic’s lien on property of the defendant Thompson as a materialman and from the order of the court dismissing the defendant’s counterclaim. The defendant appeals and assigns numerous errors but we have concluded that this court lacks jurisdiction to determine those issues and they will not be discussed. After trial to the court, the judge, by letter dated June 23, 1976, to all counsel, stated that the plaintiff was entitled to foreclosure of its mechanic’s lien and to an order dismissing defendant’s counterclaim and requesting that counsel for the plaintiff submit a decree consistent with findings made by the court.

On June 30, 1976, the defendant filed a motion for new trial. On July 2, 1976, the court signed the decree submitted by plaintiff and on the same day entry of the decree was noted on the trial docket. On July 28, 1976, counsel for both parties appeared before the court for a hearing on plaintiff’s motion to quash the defendant’s motion for a new trial. The hearing on the motion was continued until August 6, 1976, at defendant’s request. On August 6, 1976, a hearing was held on the plaintiff’s motion to quash. The motion for new trial was quashed as having been filed prematurely. On August 6, 1976, the defendant gave notice of appeal.

Section 25-1143, R. R. S. 1943, provides: “The application for a new trial must be made, within ten days, * * * after the verdict, report or decision was rendered * * In Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 Neb. 119, 241 N. W. 2d 541, the trial court, on September 24, 1975, signed a memorandum finding that the plaintiff’s motion for summary judgment should be granted. Formal judgment was signed by the trial judge and filed October 1, 1975. In that case the plaintiff contended that the motion for new trial was required to be filed within 10 days of September 24, 1975. This court disagreed citing section 25-1301, R. R. S. 1943: “ ‘A judgment is the final determination of the rights of the parties in an action. (2) Rendition of a judgment is the act of the court, or a judge thereof, in pronouncing judgment, accompanied by the making of a notation on the trial docket, or one made at the direction of the court or judge thereof, of the relief granted or denied in an action.’ ” The court cited Fritch v. Fritch, 191 Neb. 29, 213 N. W. 2d 445, to the effect that: “No judgment is rendered until the pronouncement thereof is noted on the trial docket.” The effect of Valentine Production Credit Assn. v. Spencer Foods, Inc., supra, is clearly that until the judgment is pronounced, accompanied by an appropriate docket entry, a motion for new trial is premature. A memorandum or letter as in this case is not a report or decision within the meaning of section 25-1143, R. R. S. 1 943.

‘‘It is said that a motion for a new trial if made before all of the material issues have been disposed of is premature. A motion for a new trial if prematurely made is ineffectual.” 58 Am. Jur. 2d, New Trial, § 187, p. 403. We have previously held that a motion for new trial not filed within 10 days after verdict, report, or decision is rendered is a nullity, Pallas v. Dailey, 169 Neb. 277, 99 N. W. 2d 6, so a motion for new trial filed prior to the rendition of a judgment must equally be said to constitute a nullity.

Section 25-1912, R. R. S. 1943, states: ‘‘The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court * * * shall be by filing in the office of the clerk of the district court in which such judgment, decree or final order was rendered, within one month after the rendition of such judgment or decree, * * * or within one month from the overruling of a motion for a new trial in said cause, a notice of intention to prosecute such appeal * * An appeal must be dismissed where notice is not filed within the time prescribed by section 25-1912, R. R. S. 1943. Giangrasso v. Eagle Distributing Co., 185 Neb. 406, 176 N. W. 2d 16.

No effective motion for new trial having been filed, the District Court was correct in quashing the premature filing, and no notice of appeal having been filed within 1 month of the date of the rendition of the judgment, this court acquired no jurisdiction. The cause is dismissed for want of jurisdiction.

Appeal dismissed.