Muller v. Weeder ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/03/2023 08:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MULLER V. WEEDER
Cite as 313 Neb. 639Richard Muller, appellant, v.
Carl Weeder and Margene
Cork, appellees.
___ N.W.2d ___
Filed March 3, 2023. No. S-21-657.
1. Motions to Dismiss: Jurisdiction: Appeal and Error. In reviewing a
district court’s decision on a party’s motion to dismiss for lack of sub-
ject matter jurisdiction, an appellate court employs a de novo standard
of review.
2. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal
and Error. Whether a party’s death abates an appeal or cause of action
presents a question of law.
3. Appeal and Error. An appellate court independently reviews questions
of law.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
5. Actions: Parties: Death. A deceased person cannot maintain a
right of action against another or defend a legal interest in an action
or proceeding.
6. Actions: Parties: Death: Abatement, Survival, and Revival. When an
action abates upon the death of a party, then the abatement is absolute
and the action ceases to exist.
7. Actions: Parties: Death: Abatement, Survival, and Revival:
Jurisdiction. When an action survives death, the death of a party
results in a suspension of further proceedings in the suit for want of
proper parties; the only action the court has jurisdiction to take during
this period is to revive the action in the name of the personal repre-
sentative or successor in interest in response to a properly filed motion
for revivor.
8. ____: ____: ____: ____: ____. When an action is one which sur-
vives the death of a party, the action must be revived in the name of
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MULLER V. WEEDER
Cite as 313 Neb. 639the representative or successor in interest before a court has any jurisdic-
tion to continue.
9. Actions: Parties: Death: Abatement, Survival, and Revival:
Statutes. The language of Neb. Rev. Stat. §§ 25-1401 and 25-1402
(Reissue 2016) should not be understood to suggest that all pending
actions other than those specifically listed in the statutes survive the
death of a party, because Nebraska case law has limited the list of those
actions which survive death to exclude those which involve purely per-
sonal rights.
10. Actions: Contribution. Fence dispute actions under Neb. Rev. Stat.
§ 34-112.02 (Reissue 2016) are actions for contribution for fence con-
struction or maintenance.
11. Statutes: Legislature. By enacting the division fence statutes, the
Nebraska Legislature created in adjoining landowners a statutory
duty to construct and maintain a just proportion of the division fence
between them.
12. Actions: Parties: Death: Abatement, Survival, and Revival:
Contribution. It is generally recognized that pending contribution
actions survive the death of a party and can be revived in the name of
the decedent’s personal representative.
13. ____: ____: ____: ____: ____. To the extent a pending fence action
seeks only contribution, it survives the defendant’s death.
14. Actions: Parties: Death: Abatement, Survival, and Revival: Statutes.
The right to revive or continue a pending action at law after the death
of a party is purely statutory, and there may be a revival or continuance
when and only when the case is within a statute permitting it, and strict
compliance with the statutory requirements is shown.
15. ____: ____: ____: ____: ____. Because a pending action that survives
the death of a party must be revived in the manner provided by statute,
a failure to do so means that the pending action has no force and effect
with respect to any entity in whose name revivor was required.
16. Abatement, Survival, and Revival: Statutes. Nebraska’s statutory pro-
cedure for revivor is generally set out in Neb. Rev. Stat. §§ 25-1403 to
25-1420 and 25-322 (Reissue 2016).
17. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal
and Error. The statutory provisions regarding revivor of actions apply
to cases in which a party dies pending an appeal.
18. Actions: Parties: Death: Abatement, Survival, and Revival:
Jurisdiction. It is fundamental that any order of revivor or substitu-
tion must be had in the court having jurisdiction at the time of the
party’s death.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MULLER V. WEEDER
Cite as 313 Neb. 63919. Judgments: Jurisdiction. When a court lacks jurisdiction and nonethe-
less enters an order, such order is void and of no force and effect.
20. Jurisdiction: Appeal and Error. Where a lower court lacks jurisdiction
to adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
21. ____: ____. When an appellate court is without jurisdiction to act, the
appeal must be dismissed.
22. ____: ____. An appellate court always has the power to determine
whether it has jurisdiction, and even when an appellate court determines
it lacks jurisdiction over an appeal because the lower court lacked juris-
diction, the appellate court has the power to vacate void orders and, if
necessary, to remand the cause with appropriate directions.
Appeal from the District Court for Boyd County, Mark D.
Kozisek, Judge, on appeal thereto from the County Court for
Boyd County, Kale B. Burdick, Judge. Judgment of District
Court vacated and dismissed, and cause remanded for further
proceedings.
Ryan D. Cwach, of Birmingham & Cwach Law Offices,
P.L.L.C., for appellant.
Lyle Joseph Koenig, of Koenig Law Firm, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is a fence dispute action between two adjoining land-
owners, Richard Muller and John Weeder. The county court
entered a monetary judgment in favor of Muller, and Weeder
appealed. The district court sitting as an appellate court
affirmed the judgment as modified, and Weeder appealed that
decision to the Nebraska Court of Appeals. Weeder died while
the case was pending in the Court of Appeals, but the parties
continued litigating and no suggestion of death was filed in
that court. Apparently unaware of Weeder’s death, the Court
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MULLER V. WEEDER
Cite as 313 Neb. 639of Appeals issued an opinion that reversed the judgment and
remanded the matter for further proceedings.
On remand, the county court conducted further proceed-
ings and once again entered a monetary judgment in favor of
Muller. A second appeal was taken, which the district court dis-
missed for lack of jurisdiction based on Weeder’s death. When
Muller appealed the dismissal, we moved the appeal from the
Court of Appeals’ docket to our own to address the impact of
Weeder’s death during the pendency of the first appeal.
For reasons we will explain, as a result of Weeder’s death,
the Court of Appeals lacked jurisdiction to issue its opinion
and mandate in the first appeal, and we must vacate both as
null and void. For the same reason, we must vacate all orders
and judgments entered upon remand. And finally, because the
district court lacked jurisdiction over the second appeal, we
likewise lack jurisdiction to reach the merits. We therefore
dismiss this appeal for lack of jurisdiction and remand this
matter to the court in which it was pending at the time of
Weeder’s death.
I. BACKGROUND
This case began as a dispute between adjoining landowners
over maintenance of a division fence. Muller owned prop-
erty on one side of a fence in Boyd County, Nebraska, and
Weeder owned property on the other. At some point in 2014,
Muller repaired a portion of the fence and asked Weeder to
repair another portion. When Weeder did not comply with that
request, Muller filed a fence dispute complaint in the county
court for Boyd County. 1
Thereafter, the parties successfully mediated the fence dis-
pute. Nebraska’s fence statutes provide that “[i]f the parties
1
See Neb. Rev. Stat. § 34-112.02(2) (Reissue 2016) (“[i]f the landowners
cannot agree what proportion of a division fence each shall construct,
maintain, or repair, whether by performance or by contribution, either
landowner may commence an action, without further written notice, in the
county court of the county where the land is located”).
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MULLER V. WEEDER
Cite as 313 Neb. 639consent to mediate and if a mediation agreement is reached, the
court shall enter the agreement as the judgment in the action.” 2
The parties’ mediation agreement recited that Muller had
repaired his portion of the division fence and installed a four-
wire fence that complied with current fence statutes. As to
Weeder, the mediation agreement recited:
(3) Weeder will clear trees, shrubs etc that could dam-
age the fence from his portion of the fence. Weeder will
repair or replace his portion of the fence such that the
fence will be a 4 wire fence complying with current
state statutes.
....
(6) If Weeder fails to complete the actions described
in paragraph 3 . . . , Muller may complete those actions
[in which event] Muller shall be entitled to the entry of
a judgement against Weeder in an amount equal to the
reasonable expenses incurred by Muller in completing
that work.
Muller and Weeder filed their mediation agreement with the
county court, and on December 14, 2015, the court entered
the following conditional judgment in the action:
Parties reached a mediated settlement in this fence dis-
pute. Judgment is entered in compliance with that settle-
ment. [Weeder] has 7 days to comply with the settlement
agreement. If he fails to comply within 7 days, [Muller]
may proceed under paragraph 6 of the agreement to repair
the fence, submit a bill showing costs necessary to com-
ply with the agreement.
The record shows that Weeder made repairs to his portion
of the fence, but Muller did not think the repairs complied
with the terms of the mediation agreement. So, Muller paid
a fence company to repair and/or replace Weeder’s portion of
the fence and to clear trees and shrubs from the fence line.
After doing so, Muller filed what he titled an “Affidavit and
2
§ 34-112.02(4).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
MULLER V. WEEDER
Cite as 313 Neb. 639Application for Order to Show Cause” in the fence action.
Our appellate record does not contain either the application or
the corresponding order to show cause issued by the county
court. But the parties generally agree that Weeder was ordered
to show cause why a money judgment should not be entered
against him for the expenses incurred by Muller in repairing
and replacing Weeder’s portion of the fence.
After conducting a hearing on the order to show cause,
the county court determined the reasonable cost of the fence
repairs totaled $4,998.30, and it entered judgment against
Weeder in that amount. Weeder timely appealed the judgment
to the district court, and Muller cross-appealed to challenge
the county court’s failure to include the cost of tree and shrub
removal in its judgment. The district court found merit in the
cross-appeal, and thus affirmed the judgment as modified.
Weeder timely appealed the district court’s decision to the
Court of Appeals. It is undisputed that Weeder died in October
2017, while the appeal was pending before the Court of
Appeals. It is also undisputed that no one filed a suggestion of
death in the Court of Appeals, and we see nothing in the appel-
late record suggesting that the Court of Appeals was otherwise
advised of Weeder’s death or that any steps were taken in that
court to revive the matter in the name of the personal represent­
ative or successor in interest. 3
In a published opinion, 4 the Court of Appeals concluded the
county court had applied the wrong burden of proof during
the show cause hearing. The Court of Appeals characterized
it as a civil contempt proceeding and held that in such a hear-
ing, Muller had the burden to prove by clear and convincing
evidence that Weeder willfully disobeyed the county court’s
December 2015 judgment. Because it found the county court
had applied a different burden of proof, the Court of Appeals
remanded the matter for further proceedings.
3
See Neb. Rev. Stat. §§ 25-1403 to 25-1420 and 25-322 (Reissue 2016).
4
Muller v. Weeder, 26 Neb. App. 938, 924 N.W.2d 754 (2019).
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MULLER V. WEEDER
Cite as 313 Neb. 639Sometime after the matter was remanded to the county
court, Muller apparently filed a motion to substitute Weeder’s
brother and sister as Weeder’s successors in interest, because
they had inherited the land on which the subject fence was situ-
ated. According to the procedural history recited by the county
court, there was no objection to the substitution.
After the substitution, Weeder’s brother and sister requested
clarification of the proceedings on remand. In response, the
county court explained that, consistent with the mandate from
the Court of Appeals, it would hold a civil contempt hearing
at which it would be “[Muller’s] burden to prove, by clear
and convincing evidence, that the Defendants did not com-
ply with the Court’s order [of December 14, 2015,] and are
in contempt.”
After holding such a hearing, the county court found Weeder’s
brother and sister in willful contempt of court, reasoning that
“their predecessor in interest willfully failed to comply with
the judgment of the court entered December 14, 2015, which
ratified the parties’ mediation agreement.” The county court
then entered a money judgment in favor of Muller and against
Weeder’s brother and sister in the amount of $5,943.30.
Weeder’s brother and sister timely appealed that judgment
to the district court. They later filed a motion in the district
court to dismiss the appeal for lack of subject matter jurisdic-
tion, arguing generally that any contempt proceeding against
Weeder abated upon his death. The district court heard argu-
ment on the motion to dismiss at the same time it held oral
argument on the merits of the county court appeal.
In an order entered July 12, 2021, the district court sustained
the motion and dismissed the appeal for lack of jurisdiction. It
reasoned that any civil contempt proceeding against Weeder
was personal in nature and necessarily abated upon his death.
The district court thus vacated the county court’s contempt
judgment for a lack of subject matter jurisdiction, and it dis-
missed the appeal for the same reason.
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MULLER V. WEEDER
Cite as 313 Neb. 639Muller appealed the dismissal, and we moved the case from
the Court of Appeals’ docket to our own.
II. ASSIGNMENT OF ERROR
Muller assigns, restated, that the district court erred in con-
cluding it lacked subject matter jurisdiction due to Weeder’s
death.
III. STANDARD OF REVIEW
[1] In reviewing a district court’s decision on a party’s
motion to dismiss for lack of subject matter jurisdiction, an
appellate court employs a de novo standard of review. 5
[2] Whether a party’s death abates an appeal or cause of
action presents a question of law. 6
[3] An appellate court independently reviews questions
of law. 7
IV. ANALYSIS
[4] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the appeal. 8 Here, it is undisputed that Weeder
died in October 2017 while this case was pending before the
Court of Appeals.
[5] It does not appear the Court of Appeals was advised
of Weeder’s death, but the death nevertheless had an imme-
diate impact on that court’s jurisdiction. That is so, because
a deceased person cannot maintain a right of action against
5
See State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022). See, also,
Aldrich v. Nelson, 290 Neb. 167, 169, 859 N.W.2d 537, 540 (2015)
(“[a] motion to dismiss for lack of jurisdiction under Neb. Ct. R. Pldg.
§ 6-1112(b)(1) which is limited to a facial attack on the pleadings is
subject to a de novo standard of review”).
6
State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016); In re Conservatorship
of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).
7
See In re Conservatorship of Franke, supra note 6.
8
Evert v. Srb, 308 Neb. 895, 957 N.W.2d 475 (2021).
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MULLER V. WEEDER
Cite as 313 Neb. 639another or defend a legal interest in an action or proceeding. 9
In this action, there was a single plaintiff and a single defend­
ant, and we limit our jurisdictional analysis accordingly. 10
1. Did This Action Abate
or Survive?
[6] Generally, when a party dies during the pendency of an
action, the jurisdictional consequences depend on whether the
action is one which abates or survives upon death. If the pend-
ing action is the type which abates upon the death of a party,
then the abatement is absolute and the action ceases to exist. 11
When absolute abatement occurs while an action is pending on
appeal, the correct procedure for the court to follow generally
depends upon the nature of the action. 12
[7,8] Alternatively, when a pending action is one that sur-
vives death, the death of a party results in a suspension of
9
In re Conservatorship of Franke, supra note 6.
10
See § 25-1403 (“[w]here there are several plaintiffs or defendants in an
action and one of them dies, or his powers as a personal representative
cease, if the right of action survive to or against the remaining parties, the
action may proceed, the death of the party or the cessation of his powers,
being stated on the record”).
11
Bullock v. J.B., 272 Neb. 738, 725 N.W.2d 401 (2006).
12
See, e.g., Sherman v. Neth, 283 Neb. 895, 902, 813 N.W.2d 501, 506
(2012) (holding when administrative license revocation action abates
on appeal, “the decision of the Court of Appeals, for which we granted
further review, as well as that of the district court, should be vacated and
[the] district court should dismiss the action”); State v. Campbell, 187
Neb. 719, 720, 193 N.W.2d 571, 572 (1972) (holding death of criminal
defendant pending appeal “abates not merely the appeal, but also the
proceedings had below in the prosecution from its inception and therefore
the correct procedure is to vacate the conviction, and reverse and remand
with directions to dismiss the indictment or information”); Williams v.
Williams, 146 Neb. 383, 387, 19 N.W.2d 630, 632 (1945) (holding when
dissolution action abates on appeal “the action abates as if the death had
occurred before the verdict or interlocutory judgment or decision, unless
saved by a statute”).
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MULLER V. WEEDER
Cite as 313 Neb. 639further proceedings in the suit for want of proper parties. 13 The
court’s jurisdiction during this suspension period is limited;
the only action the court has jurisdiction to take is to revive
the action in the name of the personal representative or suc-
cessor in interest in response to a properly filed motion for
revivor. 14 In other words, even when an action is one which
survives the death of a party, the action must be revived in
the name of the representative or successor in interest before a
court has any jurisdiction to continue. 15
To determine whether the action between Muller and Weeder
is one which abated or survived upon Weeder’s death, we begin
by reviewing the framework that governs abatement and sur-
vival of actions in Nebraska.
(a) Abatement and Survival
of Actions
The general rule is found in § 25-322, which states: “An
action does not abate by the death . . . of a party . . . if the
cause of action survives or continues.” Section 25-322 does not
specify which actions survive the death of a party, but it does
provide that when an action is one that survives, “the court
may allow the action to continue by or against [the decedent’s]
representative or successor in interest.”
Neb. Rev. Stat. § 25-1401 (Reissue 2016) lists specific
actions that survive the death of either party, and it expressly
incorporates those actions that survived death at common law:
In addition to the causes of action which survive at
common law, causes of action for mesne profits, or for
an injury to real or personal estate, or for any deceit or
fraud, shall also survive, and the action may be brought,
13
See, Anderson v. Finkle, 296 Neb. 797, 896 N.W.2d 606 (2017); In re
Conservatorship of Franke, supra note 6; Fox v. Nick, 265 Neb. 986, 660
N.W.2d 881 (2003).
14
See Anderson, supra note 13. See, also, § 25-322.
15
See In re Conservatorship of Franke, supra note 6.
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MULLER V. WEEDER
Cite as 313 Neb. 639notwithstanding the death of the person entitled or liable
to the same.
Actions that abate upon death are identified in Neb. Rev.
Stat. § 25-1402 (Reissue 2016), which provides: “No action
pending in any court shall abate by the death of either or both
the parties thereto, except an action for libel, slander, malicious
prosecution, assault, or assault and battery, or for a nuisance,
which shall abate by the death of the defendant.”
[9] Finally, we have long held that the language of §§ 25-1401
and 25-1402 should not be understood to suggest that all pend-
ing actions other than those specifically listed in the statutes
survive the death of a party, because “‘Nebraska case law
has limited the list of those actions which survive [death] to
exclude those which involve purely personal rights.’” 16
With these principles in mind, we consider whether the
action Muller filed against Weeder is one which survived, or
abated, upon Weeder’s death. This presents a question of law, 17
and it necessarily requires that we identify the nature of the
action and the legal rights at issue. 18 Our record reflects some
disagreement regarding the nature of the action filed by Muller,
and we address that issue next.
(b) Nature of Action and
Rights at Issue
In the first appeal, the Court of Appeals described this as
a fence dispute action brought pursuant to § 34-112.02, but
it treated the show cause hearing in county court as a civil
contempt proceeding. Because of this characterization, the
parties have focused a significant portion of their argument
16
Sherman v. Neth, 283 Neb. 895, 899, 813 N.W.2d 501, 504 (2012). See,
also, Bullock, supra note 11; Williams v. Williams, 146 Neb. 383, 19
N.W.2d 630 (1945); Holmberg v. Holmberg, 106 Neb. 717, 184 N.W. 134(1921); Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001).
17
See, Rice, supra note 6; In re Conservatorship of Franke, supra note 6.
18
See Rice, supra note 6 (explaining that to determine whether action abates,
court must consider nature of legal rights at issue).
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MULLER V. WEEDER
Cite as 313 Neb. 639on whether a civil contempt proceeding abates upon the death
of the alleged contemnor.
Muller attempted, on remand, to dispute the Court of
Appeals’ characterization of this as a civil contempt proceed-
ing, but the lower courts were bound by the law of the case
on that issue. 19 This court, however, may examine the question
anew. 20 And as we will explain, for purposes of determining
whether the action survives or abates, we conclude the case is
more properly characterized as a fence dispute action brought
under § 34-112.02, and not a civil contempt proceeding.
The record shows that Muller filed a “Fence Dispute
Complaint” using the standard court form prescribed by
§ 34-112.02(2). His complaint asked that Weeder be ordered
to pay him “the sum of $5,959.34 . . . for construction, repair
or maintenance of a division fence between adjoining prop-
erties,” and it did not seek recovery under any theory other
than the division fence statutes. No counterclaim was filed,
and no other claims or theories of recovery were alleged by
either party.
[10,11] We have described division fence dispute actions
under § 34-112.02 as “action[s] for contribution for fence
construction or maintenance.” 21 And we have explained that
such actions are not based on the common law, because at
19
See TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 509,
941 N.W.2d 145, 156 (2020) (“[u]nder the law-of-the-case doctrine, the
holdings of an appellate court on questions presented to it in reviewing
proceedings of the trial court become the law of the case”).
20
See, generally, Burnham v. Bennison, 130 Neb. 558, 561, 265 N.W. 531,
533 (1936) (holding in second appeal, appellate court “‘is not bound to
follow opinions on questions of law presented on the first appeal and may
reexamine and reverse its rulings on such questions, and should do so
when the opinion first expressed is manifestly incorrect’”).
21
Kotrous v. Zerbe, 287 Neb. 1033, 1036, 846 N.W.2d 122, 125 (2014). See,
also, § 34-112.02(1) (“any cause of action under this section . . . shall be
an action for contribution”).
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Cite as 313 Neb. 639common law, a landowner could not be compelled to build
a partition fence, and landowners who erected such a fence
acquired no right of action for contribution from the owner of
adjoining land. 22 By enacting the division fence statutes, 23 the
Nebraska Legislature created in adjoining landowners a statu-
tory duty to “construct and maintain a just proportion of the
division fence between them.” 24 As we observed in Kotrous
v. Zerbe 25:
To create a cause of action for contribution, the
Nebraska Legislature passed a “fence law,” which directs
that two or more adjoining landowners shall construct and
maintain a division fence between them, with the costs
being equitably allocated between the landowners, unless
otherwise agreed to by the adjoining landowners. Should
an adjoining landowner refuse to share in the costs, the
landowner is empowered to bring an action for contribu-
tion. The landowner may commence the “action in the
county court of the county where the land is located.”
To commence the action for contribution, the landowner
shall file “a fence dispute complaint . . . provided to the
plaintiff by the clerk of the county court.”
Here, after Weeder was served with Muller’s fence dis-
pute complaint, the parties successfully mediated their dispute.
Thereafter, the county court entered a conditional judgment
based on that agreement. 26 That conditional judgment gave
22
See id.23
See Neb. Rev. Stat. §§ 34-101 to 34-117 (Reissue 2016).
24
§ 34-102(1).
25
Kotrous, supra note 21, 287 Neb. at 1036, 846 N.W.2d at 125-26.
26
See Evert, supra note 8 (holding court entered conditional judgment in
fence action when defendant was given set amount of time to act and
depending on such action, plaintiff was authorized to construct division
fence and submit statement concerning costs, after which defendant had
set amount of time to contest such amount).
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Cite as 313 Neb. 639Weeder a set period of time to complete repairs and mainte-
nance to his portion of the division fence, and it provided that
if he failed to complete the work in accordance with the agree-
ment, then Muller could complete the work, in which event he
would “be entitled to the entry of a judgement against Weeder
in an amount equal to the reasonable expenses incurred by
Muller in completing that work.”
Given the conditional nature of the judgment entered by
the county court, it seems unlikely the order to show cause—
which was issued after Muller stepped in and completed
repairs on Weeder’s portion of the division fence but before
the reasonable value of such repairs had been determined—
was focused on holding Weeder in civil contempt of court.
Instead, we understand the purpose of the order was to give
Weeder an opportunity to show cause why a contribution
judgment should not be entered in favor of Muller for the
expenses he incurred repairing and replacing Weeder’s portion
of the fence.
We thus conclude, for purposes of determining whether this
pending action abated or survived upon Weeder’s death, that
the nature of the action was a division fence dispute under
§ 34-112.02 seeking only contribution, and was not a civil
contempt proceeding. As such, we need not address whether
civil contempt proceedings abate on the death of the alleged
contemnor. We turn instead to whether a fence dispute action
survives, or abates, upon the death of the defendant. This is an
issue of first impression under Nebraska law.
(c) Fence Dispute Action Survives
Because statutory fence actions did not exist at common
law, it follows that such actions cannot be among the “causes
of action which survive at common law” for purposes of
§ 25-1401. And while it is conceivable that one who com-
mences a fence action might choose to permissively join
therewith a claim against the adjoining property owner for
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MULLER V. WEEDER
Cite as 313 Neb. 639an alleged injury to real or personal property 27 or for nuisance, 28
no such claims were joined here.
Instead, Muller’s complaint sought only contribution for
costs incurred in constructing, repairing, and maintaining the
division fence. And the judgment entered in Muller’s favor
prior to Weeder’s death granted the requested relief of contri-
bution, and nothing more.
[12,13] It is generally recognized that pending contribution
actions survive the death of a party 29 and can be revived in the
name of the decedent’s personal representative. 30 Consequently,
to the extent Muller’s fence action sought only contribution,
we hold that the pending action survived Weeder’s death.
2. Revivor
[14,15] As stated earlier, even when an action is one which
survives the death of a party, the action must be revived in the
name of the representative or successor in interest before it can
continue. 31 The right to revive or continue a pending action at
law after the death of a party is purely statutory, and “‘there
may be a revival or continuance when and only when the case
is within a statute permitting it, and strict compliance with
the statutory requirements is shown.’” 32 Because a pending
27
See § 25-1401 (actions “for an injury to real or personal estate” survive
death).
28
See § 25-1402 (pending actions “for a nuisance” abate upon death of
defendant). See, also, § 34-103 (“[t]he occurrence of trees and woody
growth within or encroaching upon a division fence that causes damage
to, or dislocation of, the fence shall constitute a private nuisance to the
adjacent landowner’s possessory interests in his or her land”).
29
See 1 C.J.S. Abatement and Revival § 145 (2016). See, also, Butler v.
Trentham, 224 Tenn. 528, 458 S.W.2d 13 (1970).
30
See 1 C.J.S., supra note 29, § 145 at 170 (“[e]quitable remedies exist
to the same extent against executors and administrators as they did
against the decedent”). See, also, Sullivan v. Associated Billposters and
Distributors, 6 F.2d 1000 (2d Cir. 1925).
31
In re Conservatorship of Franke, supra note 6.
32
Fox, supra note 13, 265 Neb. at 992, 660 N.W.2d at 886.
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Cite as 313 Neb. 639action that survives the death of a party must be revived in
the manner provided by statute, “a failure to do so means that
the pending action has no force and effect with respect to any
entity in whose name revivor was required.” 33
[16,17] Nebraska’s statutory procedure for revivor is gen-
erally set out in §§ 25-1403 to 25-1420 and 25-322. 34 And it
is well settled that the statutory provisions regarding revivor
of actions apply to cases in which a party dies pending an
appeal. 35
Section 25-1411 addresses revivor upon the death of a
defendant in an action which survives, and it provides:
Upon the death of a defendant in an action, wherein
the right, or any part thereof, survives against his personal
representative, the revivor shall be against him; and it
may also be against the heirs or devisees of the defendant,
or both, when the right of action, or any part thereof, sur-
vives against them.
Section 25-1413 addresses the timeframe for orders of revi-
vor, and it provides: “An order to revive an action against the
representatives or successor of a defendant shall not be made
without the consent of such representatives or successor, unless
in one year from the time it could have been first made.” And
§ 25-1415 provides:
When it appears to the court by affidavit that either
party to an action has been dead . . . for a period so long
that the action cannot be revived in the names of his
representatives or successor, without the consent of both
33
Anderson, supra note 13, 296 Neb. at 801-02, 896 N.W.2d at 610. Accord
Fox, supra note 13, 265 Neb. at 992, 660 N.W.2d at 886 (“[i]f a pending
action is not revived in the manner provided by statute, ‘such pending
action has no force and effect’ as to any entity in whose name revivor was
required”).
34
See Fox, supra note 13.
35
See, In re Conservatorship of Franke, supra note 6; Schumacher v.
Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006); Long v. Krause, 104 Neb.
599, 178 N.W. 188 (1920).
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Cite as 313 Neb. 639parties, it shall order the action to be stricken from the
docket.
Finally, we have construed § 25-322 to permit revivor through
a substitution of parties when “‘“supplemental pleadings
[are] filed and summons served as in the commencement of
an action.”’” 36
[18] Comments made by the county court on remand sug-
gest that Weeder’s brother and sister may have consented,
in that court, to be substituted as the party defendant in this
fence action. But it is fundamental that any order of revivor
or substitution “must be had in the court having jurisdiction”
at the time of the party’s death. 37 The fence action was pend-
ing in the Court of Appeals at the time of Weeder’s death, and
his death suspended the action in that court. 38 The Court of
Appeals is, therefore, the only court with jurisdiction to revive
the action, 39 and any substitution which purportedly took place
in the county court after Weeder’s death was without any force
and effect. 40
[19] Presumably because the Court of Appeals was not
informed of Weeder’s death, 41 our record contains neither a
conditional order of revivor by the Court of Appeals pursuant
to § 25-1406 nor any order of revivor based upon the consent
of the parties pursuant to § 25-1408. No revivor having yet
occurred in the Court of Appeals, that court lacked jurisdic-
tion to issue its opinion and mandate in the first appeal. 42
36
Fox, supra note 13, 265 Neb. at 993, 660 N.W.2d at 886, quoting Hayden
v. Huff, 62 Neb. 375, 87 N.W. 184 (1901).
37
Independent Lubricating Co. v. Good, 133 Neb. 431, 433, 275 N.W. 668,
670 (1937).
38
See, Anderson, supra note 13; Independent Lubricating Co., supra note
37.
39
See id.
40
See id.
41
See § 25-1407.
42
See, Anderson, supra note 13; Fox, supra note 13.
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Cite as 313 Neb. 639And when a court lacks jurisdiction and nonetheless enters
an order, such order is void and of no force and effect. 43
Consequently, we must vacate the Court of Appeals’ opin-
ion and mandate in the first appeal for lack of jurisdiction.
And for the same reason, we must conclude the lower courts
lacked jurisdiction over the action upon remand, and any
orders entered by those courts after the date of Weeder’s death
must also be vacated.
[20,21] Where a lower court lacks jurisdiction to adjudicate
the merits of a claim, issue, or question, an appellate court also
lacks the power to determine the merits of the claim, issue, or
question presented to the lower court. 44 And when an appellate
court is without jurisdiction to act, the appeal must be dis-
missed. 45 Applying these principles, we conclude that because
the district court lacked jurisdiction to enter the decision which
is presently before this court on appeal, we also lack jurisdic-
tion over this appeal and must dismiss it.
[22] However, an appellate court always has the power
to determine whether it has jurisdiction, and even when an
appellate court determines it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction, the appellate court
has the power to vacate void orders and, if necessary, to
remand the cause with appropriate directions. 46 With this prin-
ciple in mind, before we dismiss the instant appeal for lack of
jurisdiction, we first vacate all orders, judgments, opinions, and
mandates issued in this action after the date of Weeder’s death.
And because Weeder’s death suspended this action while it
was pending in the Court of Appeals, we now remand it to the
Court of Appeals for further proceedings consistent with this
opinion and Nebraska’s revivor statutes.
43
See Anderson, supra note 13.
44
See Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d
147 (2017).
45
See id.46
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Cite as 313 Neb. 639V. CONCLUSION
As a result of Weeder’s death while this case was pending
before the Court of Appeals, the case was suspended in that
court pending revivor. 47 Because no revivor has occurred, the
action remains suspended and no court has had jurisdiction to
address the merits of this fence action since Weeder’s death
in 2017.
We must, therefore, vacate for lack of jurisdiction all orders,
judgments, opinions, and mandates issued by the lower courts
in this matter after the date of Weeder’s death. Likewise, we
must dismiss the instant appeal for lack of jurisdiction and
remand the cause to the court in which it was pending at the
time of Weeder’s death for further proceedings consistent with
this opinion and Nebraska’s revivor statutes.
Vacated and dismissed, and cause
remanded for further proceedings.
47
See Anderson, supra note 13. See, also, § 25-322.