Jurisdiction. A question of jurisdiction is
a question of law.
Statutes. Statutory interpretation presents
a question of law.
Judgments: Appeal and Error. Appellate
courts independently review questions of law decided by a
Jurisdiction: Appeal and Error. Before
reaching the legal issues presented for review, it is the
power and duty of an appellate court to determine whether it
has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
Jurisdiction: Time: Notice: Appeal and
Error. Under Neb. Rev. Stat. § 25-1912 (Reissue
2016), to vest an appellate court with jurisdiction, a party
must timely file a notice of appeal.
Judgments: Time: Notice: Appeal and Error.
Under Neb. Rev. Stat. § 25-1912(3) (Reissue 2016),
filing a timely postjudgment motion terminates the time in
which a notice of appeal must be filed; instead, the 30-day
period to appeal starts anew upon the entry of the order
ruling upon the postjudgment motion.
___: ___: ___. Neb. Rev. Stat. § 25-1912(3) (Reissue
2016) provides a savings clause for a notice of appeal filed
after the announcement of the court's decision on a
timely postjudgment motion but before a ruling thereon has
been entered; the notice of appeal is treated as filed on the
date of and after the entry of the order.
___: ___: ___. Under Neb. Rev. Stat. § 25-1912 (Reissue
2016), to determine if a notice of appeal filed before the
court has entered an order or judgment on a postjudgment
motion is effective, an appellate court must answer two
questions: (1) Was the postjudgment motion timely and
effective, and (2) Was the notice of appeal [296 Neb. 633]
filed after the court announced its decision or order on the
New Trial: Words and Phrases. Under Neb.
Rev. Stat. § 25-1142 (Reissue 2016), a new trial is a
reexamination in the same court of an issue of fact after a
verdict by a jury, a report of a referee, or a trial and
decision by the court.
Summary Judgment: Motions for New Trial: Time:
Notice: Appeal and Error. A motion for new trial
following the entry of summary judgment is not a proper
motion and does not terminate the 30-day period to file a
notice of appeal under Neb. Rev. Stat. § 25-1912
Pleadings: Judgments. Neb. Rev. Stat. §
25-1329 (Reissue 2016) does not clearly define the grounds
for filing a motion to alter or amend a judgment.
Pleadings: Judgments: Appeal and Error. An
appellate court reviews a postjudgment motion based on the
relief it seeks, rather than its title.
Pleadings: Judgments. Under Neb. Rev. Stat.
§ 25-1329 (Reissue 2016), if a postjudgment motion seeks
a substantive alteration of the judgment-as opposed to the
correction of clerical errors or relief wholly collateral to
the judgment-a court may treat the motion as one to alter or
amend the judgment.
___: ___. Under Neb. Rev. Stat. § 25-1329 (Reissue
2016), a motion for reconsideration is the functional
equivalent of a motion to alter or amend a judgment.
Judges: Words and Phrases. A judge's
proclamation from the bench is an announcement.
Words and Phrases. An announcement may
include trial docket notes, file-stamped but unsigned journal
entries, or signed journal entries which are not file
Judgments: Notice: Appeal and Error. For the
savings clause in Neb. Rev. Stat. § 25-1912(3) (Reissue
2016) to be effective, the notice of appeal must show on its
face that it relates to the decision which has been announced
by the trial court and the record must show that a judgment
was subsequently rendered or entered in accordance with the
decision which was announced and to which the notice of
Pleadings: Judgments: Appeal and Error.
Under Neb. Rev. Stat. § 25-1912 (Reissue 2016),
Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351');">562 N.W.2d 351
(1997), has been superseded on its holding that a portion of
Dale Electronics, Inc. v. Federal Ins. Co., 203 Neb.
133, 277 N.W.2d 572');">277 N.W.2d 572 (1979), is of no effect and on its
holding that the savings clause adopted in Dale
Electronics, Inc., does not apply to § 25-1912.
Neb. 634] 19. Records: Appeal and Error. It
is the appellant's burden to create a record for the
appellate court which supports the errors assigned.
___: ___. A party's brief may not expand the evidentiary
from the District Court for Douglas County: Shelly R.
Stratman, Judge. Appeal dismissed.
Denenberg for appellant.
J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O., for
appellee First National Bank of Omaha.
W. Hasenjager and Howard A. Kaiman for appellee Linda Clarke.
Heavican, C.J., Wright, Cassel, Stacy, Kelch, and Funke, JJ.
Graham appealed from orders by the district court for Douglas
County which granted summary judgment for appellee Linda
Clarke against appellee First National Bank of Omaha (FNB)
and in favor of FNB against Graham. Graham filed his notice
of appeal after filing a motion for new trial but before the
court had ruled on the motion.
filed a motion for summary dismissal arguing that the
Nebraska Court of Appeals lacked jurisdiction, under Neb.
Rev. Stat. § 25-1912(3) (Reissue 2016). The Court of
Appeals overruled the motion for summary dismissal. We
dismiss the appeal for lack of jurisdiction because
Graham's notice of appeal was filed prematurely and is,
therefore, without effect.
February 2013, Hilda Graham (Hilda) and Clarke opened an
account (the Account) with FNB to hold a certificate of
deposit (CD). The account agreement classified the Account as
[296 Neb. 635] a multiparty account with rights of
survivorship in both Hilda and Clarke. In August 2013, Hilda
called FNB and spoke with Naomi Craven, an assistant branch
manager. During the call, Hilda requested that the account be
changed to a single-party account with a pay-on-death
beneficiary, removing Clarke as the co-owner with a right of
survivorship. Hilda requested that Graham be named the
FNB's internal procedure and Neb. Rev. Stat. §
30-2724(a) (Reissue 2016), each requiring signed written
notice before changing an account's type, Craven made the
change to the Account before Hilda signed a new account
agreement. Craven claimed that she printed an updated account
agreement for Hilda to sign and mailed it to her. Craven
testified that she believed she saw Hilda's account
agreement, signed, days later, but that the account agreement
was not scanned into FNB's electronic document system and
could not be located.
died in September 2013. When Clarke requested payment of the
CD from FNB, she was denied access because she was listed as
neither a co-owner nor a pay-on-death beneficiary on the
Account in FNB's computer records. Instead, Graham was
paid the balance of the CD based on Craven's changes to
filed suit against FNB, alleging that she was the owner of
the CD. FNB denied the allegations of Clarke's complaint
but also filed a third-party action seeking recovery against
Graham to the extent FNB was liable to Clarke. Clarke
subsequently filed a motion for summary judgment against FNB,
and as a result, FNB filed a motion for summary judgment
against Clarke and, in the alternative, against Graham.
following timeline includes the relevant dates to this
[296 Neb. 636] • February 1, 2016: Clarke's motion
for summary judgment against FNB and FNB's motion for
summary judgment against Graham were sustained by written
order of the court.
• February 5, 2016: Graham's "Motion for New
Trial to Amend Judgment of Summary Judgment Order" was
• February 9, 2016: Graham's notice of appeal was
• February 12, 2016: The order denying Graham's
motion for new trial was entered.
filed a motion for summary dismissal before the Court of
Appeals, arguing that it lacked jurisdiction because
Graham's notice of appeal was filed prematurely and,
therefore, was without effect, under § 25-1912. In
response, Graham argued that he filed the notice of appeal
after the district court judge's bailiff had informed his
attorney that his motion ...