Huffman v. Boersen/Opinion of the Court
[p337] PER CURIAM.
We granted certiorari to review the constitutionality of Neb. Rev. Stat. § 25-1914 (1964)[1] under which the Nebraska Supreme Court dismissed this indigent petitioner's appeal for his failure to deposit the $75 cash or bond security for costs required of appellants by the statute. 404 U.S. 990 (1971). The judgment appealed from annulled petitioner's marriage to respondent and dismissed his countersuit claiming paternity and custody of a child born to respondent. After our grant of certiorari, Nebraska enacted Legislative Bill 1120 providing, among other things, that the Nebraska courts "shall authorize... [an] appeal... without [p338] prepayment of... security, by a person who makes an affidavit that he is unable to... give security...," except that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." Counsel for both parties were of the opinion on oral argument here that this new statute is applicable to the instant case. Counsel for respondent also conceded that petitioner's appeal on the paternity issue has merit.[2] Accordingly, the judgment is vacated and the cause remanded to the Nebraska Supreme Court for reconsideration in light of the supervening statute.
It is so ordered.
Notes
[edit]- ↑
On appeal in any case taken from the district court to the Supreme Court the appellant... shall, within one month next after the rendition of the judgment or decree... sought to be reversed, vacated or modified,... file in the district court a bond or undertaking in the sum of seventy-five dollars to be approved by the clerk of the district court, conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court; or, in lieu thereof, shall make a cash deposit with said clerk of at least seventy-five dollars for the same purpose...."
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"Q. You told us today that you concede that the determination of the paternity question was insufficient, invalid I think is the word you used.
"Mr. Dowding. Yes, I'm willing to agree that [petitioner] did not have his day in court on the paternity issue.
"Q. And we could say so on a remand.
"Mr. Dowding. Yes. So stipulate." Tr. of Oral Arg. 40