Erdman v. National Indemnity Company , 178 Neb. 312 ( 1965 )

133 N.W.2d 472 (1965) 178 Neb. 312

E. E. ERDMAN, Appellant,
v.
NATIONAL INDEMNITY COMPANY a Corporation, Appellee.

No. 35812.

Supreme Court of Nebraska.

February 19, 1965.

Haney, Walsh & Wall, Omaha, for appellant.

Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

SMITH, Justice.

We dismiss this appeal for lack of an appealable order. In disclaiming jurisdiction over defendant, the district court did no more than sustain a special appearance and overrule a purported motion for a new trial.

The basis of the disclaimer was an objection by defendant, a Nebraska corporation with its home office in Omaha, that summons had been served on a person outside the class authorized by section 25-511, R.R.S.1943.

An order sustaining an objection to personal jurisdiction is not final within the meaning of section 25-1902, R.R.S.1943. See, Standard Distilling Co. v. Freyhan, 34 Neb. 434, 51 N.W. 976; Persinger v. Tinkle, 34 Neb. 5, 51 N.W. 299. That principle has been applied wherever the defect has been noted.

This action has not terminated. The ruling of the district court neither prevents a judgment nor affects a substantial right. See Persinger v. Tinkle, supra. We cannot consider at this time contentions not going to our appellate jurisdiction.

Plaintiff's appeal from the orders sustaining defendant's special appearance and overruling plaintiff's motion for a new trial should be and hereby is dismissed at plaintiff's costs.

Appeal dismissed.