4 CIR 144 (1980)


| NO. 103
Petitioner, |
v. |
A Municipal Corporation, |
Respondent. |

Before: Gradwohl, P.J.; Kratz; Wall; McGinley and Orr, JJ., EN BANC


This matter comes on for disposition of Respondent's Motion for new trial dated February 8, 1980, which Motion is made to the Court en banc , and Petitioner's Motion to amend the caption of the case to reflect its status as an entity separate from the International Brotherhood of Police Officers. The history of the disposition of this case is that it was tried October 24, 1979 and at the close of trial, the parties were directed to submit simultaneous briefs on November 8, 1979. Due to a clear error in calendaring by the Court, the panel opinion was released November 6, 1979, before briefs were filed. On November 8, 1979, the Respondent moved for reconsideration and for hearing en banc . On November 12, 1979, the panel granted the Motion for Reconsideration and on November 20, 1979, the Court granted the Motion for Reconsideration by the Court en banc . On December 4, 1979, after reconsideration and a review of the briefs, the Court en banc, denied the Motion. Election was held, and the unit certified on January 30, 1980. On February 8, 1980, Respondent filed the Motion for New Trial and on February 12, 1980, Petitioner filed a Motion to amend the caption herein to reflect the allegations of its amended Petition which dropped the reference to affiliation with the International Brotherhood of Police Officers.

We take the Motions up in inverse order. It is settled law in Nebraska that determining the correct title and form of proceeding is not critical to disposition of the issues, Shear v. County Board of Commissioners , 187 Neb. 849, 195 N. W. 2d 151 (1972) and that a defect in name is waived if not objected to before trial, Patrick v. Norfolk Lumber Co. , 81 Neb. 267, 115

N. W. 780 (1908), Professional Collection Service v. Cable , 200 Neb. 683, 264 N. W. 2d 686 (1978). See summary at 71 C.J.S. SS 564 (pp. 1133 et seq.).

Insofar as there may be a dispute between the Petitioner and the local as to continued affiliations, that is not a matter of concern to the commission or the Respondent, but is a matter that may be settled by intraunion procedures ff necessary. (See the developing PEF case in New York, where the New York PERB continued to ignore the AFL-CIO Article XX arbitration of the AFSCME "raiding" charge throughout. First PERB decision: GERR 771:1 (1978); contrary Article XX decision by impartial umpire: GERR 771:40 (1978); PERB decision on appeal: GERR 781:79 (1978); Appellate Division decision overturning PERB decision, GERR 794:31 (1979) 101 LRRM 2184 (1979); Court of Appeals decision reversing Appellate Division and reinstating PERB decision, 161 LRRM 2664 (1979).)

Respondent's Motion for New Trial on the question of early decision is conclusory and is accompanied by no showing of prejudice. A Court is entitled to make up its mind on some issues as it goes along during the trial, and Respondent here has not shown that its brief would have changed the outcome. See AAUP v. Board of Regents , 3 C.I.R. 457, 462 (1978). As a matter of fact, having the matter considered by all five judges on the record and briefs, instead of just the original three, negates any inference of prejudice. The other reasons alleged for a new trial have been adequately discussed in the main opinion, and we adhere to our position there announced.

ORDERED that Petitioner's Motion to Amend and Respondent's Motion for New trial are overruled.

Filed March 24, 1980.


We concur in result only in the Opinion and Order filed March 24, 1980.