 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Chapman v. Department of Motor Vehicles5/18/1999
sion to two. First, Chapman asserts the district court erred in refusing to grant his motion for default judgment. Second, Chapman asserts the district court erred in affirming DMV;s order of revocation because the advisement form read to Chapman was inadequate.
IV. ANALYSIS
1. DEFAULT JUDGMENT
Chapman first asserts that the district court erred in refusing to grant his motion for default judgment. As noted above, there is no ruling on this motion apparent in the record before us. However, because the court proceeded with hearing the merits of the case and rendering an ultimate ruling thereon, we will presume, for the sake of argument, that the court did overrule the motion.
It is accurate that in the case of an original action filed in the district court, the failure of a defendant to file a responsive pleading entitles the plaintiff to a default judgment, without evidence in support of the allegations of the petition, except as to allegations of value or damages. See State on behalf of Yankton v. Cummings, 2 Neb. App. 820, 515 N.W
2d 680 (1994). However, the present case is not an original action filed in the district court, but, rather, is an appeal to the district court from an administrative agency decision, governed by the provisions of the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1994 & Cum. Supp. 1998). Section 84-917 provides the requisite filings by the various parties in a contested case appealed from an administrative agency to the district court. According to that provision, there is no requirement for the agency to file a responsive pleading. The agency is required to prepare and transmit to the court a certified copy of the official record before the agency. § 84-917(4). The agency is not, however, required to file a responsive pleading. As such, we conclude the district court was not in error in failing to grant Chapman a default judgment. This assigned error is without merit.
2. POST-ARREST ADVISEMENT
Chapman next asserts that the district court erred in affirming the revocation of his license because the post-arrest advisement form read by the officer failed to adequately advise him of the procedures for license revocation and did not satisfy the statutory requirements for an adequate advisement. In support of Chapman;s position, he cites to rationale in the Nebraska Supreme Court decisions in Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996); Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996); and Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995). In those three cases, and others decided in accordance with them, the Supreme Court held various post-arrest advisement forms inadequate because they failed to advise a motorist of all the consequences of refusing or failing a chemical test. Chapman asserts in his brief that the same rationale should be applied to find the advisement form inadequate concerning its statement of the operation of the administrative license revocation procedures.
Section 60-6,205(4) provides that the "notice of revocation shall contain a statement explaining the operation of the administrative revocation procedure." In his brief, Chapman asserts the statement contained in the notice in the present case is inadequate because it does not contain all of the details about the revocation procedure found in the relevant administrative rules and regulations, such as the fact that the motorist has the right to subpoena witnesses with personal knowledge. We disagree.
[2,3] In general, statutory language is to be given its plain and ordinary meaning, and a court will not resort to interpretation to ascertain the me
Page 1 2 3 Nebraska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|