Saturday, June 28, 2008

Nebraska Supreme Court rules for property owners who lost condemnation action against Douglas County finding their failure to serve notice on the County and to file affidavits of notice in the same manner that a plaintiff would serve a defendant with a new lawsuit were directory and not jurisdictional. Wooden v. County of Douglas, S-06-1163, 275 Neb. 971 "we conclude the district court did not lack jurisdiction as a result of the Woodens’ failure to timely file an affidavit of proof of service.when §§ 76-715, 76-715.01, and 76-717 are considered in light of each other, it is clear that the act which confers jurisdiction on the district court, and which is therefore mandatory, is the filing of the notice of appeal and, by extension, service of this notice. Moreover, we note that two distinct acts occurring days apart cannot both be jurisdictional. And because the act which is mandatory and jurisdictional is the filing of the notice of appeal, we conclude that the Woodens’ failure to timely file an affidavit of proof of service could not and did not divest the district court of jurisdiction. Instead, the timely filing of such an affidavit is directory. We find persuasive the reasoning of the Neumeyer court, which held that the filing of an appeal bond was directory rather than mandatory and that “to hold [that such was mandatory] would convert clear, brief language into a jurisdictional maze.”12 The Court of Appeals erred in concluding that the district court lacked jurisdiction due to the Woodens’ failure to file a timely affidavit of proof of service.the petition on appeal filed by the Woodens was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County. The continuation of this action, and of the petition on appeal itself required by § 76-717, is therefore governed by the statutory scheme relating to condemnation actions.

1 comment:

Anonymous said...

Where are you?