MILLER v. SULLIVAN, 194 Neb. 127 (1975)

230 N.W.2d 226

JESSE E. MILLER, APPELLANT, v. JOHN L. SULLIVAN, DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLES OF THE STATE OF NEBRASKA, APPELLEE.

No. 39883.Supreme Court of Nebraska.
Filed June 12, 1975.

Appeal and Error: Time: Pleadings. The requirement that on an appeal under section 60-420, R.R.S. 1943, a petition be filed in the District Court within 30 days from filing of the final order of the director is mandatory and jurisdictional.

Appeal from the District Court for Red Willow County: JACK H. HENDRIX, Judge. Appeal dismissed.

John J. Battershell of Cunningham Law Office, for appellant.

Page 128

Paul L. Douglas, Attorney General, and Steven C. Smith, for appellee.

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

NEWTON, J.

This is an appeal from the revocation of an automobile operator’s license for failure to take a test under the Implied Consent Law. A jurisdictional question is raised due to appellant’s having failed to file his petition on appeal in the District Court within the time allotted by statute. We dismiss the appeal.

Section 60-420, R.R.S. 1943, provides that the appellant shall file his petition in the District Court within 30 days from the date of filing of the director’s final order and shall file a transcript before answer day. The appeal is not lodged in the District Court until the petition is filed, as the transcript, including the bond, may be filed later. The statute allowing 30 days in which to file the petition effectively fixes the time in which an appeal may be taken. As in other instances the taking of an appeal within the time fixed for that purpose is jurisdictional. See, Lynde v. Wurtz, 147 Neb. 454, 23 N.W.2d 703; Diedrichs v. Empfield, 189 Neb. 120, 201 N.W.2d 254.

This court being without jurisdiction, this appeal is dismissed.

APPEAL DISMISSED.