DOUGLAS G. DEINES, APPELLEE,
ESSEX CORPORATION, APPELLANT
from the District Court for Douglas County: LEIGH ANNNN
L. Baumert, of Kutak Rock, L.L.P., and, on brief, Henry L.
Wiedrich, of Husch Blackwell, L.L.P., for appellant.
S. Dowd, of Dowd, Howard & Corrigan, L.L.C., for appellee.
C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.
Neb. 578] Stacy, J.
plaintiff below, Douglas G. Deines, filed a civil action that
was dismissed by the district court for failure to
prosecute. Deines then filed a motion to vacate the dismissal
and reinstate the case, which the court granted. The
defendant below, Essex Corporation (Essex), has appealed,
claiming the trial court erred in vacating the order of
dismissal and reinstating the case. We conclude Essex has
appealed from an order which is neither a judgment nor a
final order, and we dismiss the appeal.
2013, Deines filed a complaint seeking to recover earned
commissions from his former employer under the Nebraska Wage
Payment and Collection Act. Essex filed an answer
which, among other things, alleged Deines had been paid all
commissions he was owed. After the case had been pending for
approximately 15 months, the trial court issued a notice of
intent to dismiss. The notice required the parties to take
certain action within 30 days or the case would be dismissed
for want of prosecution. No action was taken within the
prescribed time. On November 13, 2014, the court entered an
order dismissing the case for want of prosecution. Deines
subsequently filed a motion to reinstate the case.
Neb. 579] At the hearing on the motion to reinstate, the
parties offered affidavits reflecting their respective
version of events. It was acknowledged that the order of
dismissal was entered during the 2014 court term and that the
motion to reinstate (more properly characterized as a motion
to vacate the order of dismissal) was not filed until
January 21, 2015--roughly 3 weeks after commencement of the
2015 court term. After receiving evidence and considering the
arguments of counsel, the court granted the motion and
reinstated the case. Essex filed this appeal.
assigns, restated, that the district court exceeded its
equitable authority when it vacated the order of dismissal
after the commencement of a new term.