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Zeleny v. State

Supreme Court of Nebraska

December 1, 2017

James R. Zeleny, appellant,
v.
State of Nebraska, appellee.

         1. Judgments: Appeal and Error. Generally, the appropriate standard of review for an order granting relief by way of a writ of prohibition is de novo.

         2. Jurisdiction: Final Orders: Appeal and Error. An appellate court has jurisdiction to review a judgment rendered or final order made by the district court.

         3. Judgments: Final Orders: Words and Phrases. According to Neb. Rev. Stat. § 25-1301(1) (Reissue 2016), a judgment is the final determination of the rights of the parties in an action.

         4. Actions: Jurisdiction. A motion for a writ of prohibition is an action.

         5. Judgments: Final Orders: Jurisdiction: Appeal and Error. An appellate court's jurisdiction is limited to the judgment or final order from which the appeal is taken.

         6. Final Orders: Jurisdiction: Appeal and Error. An appeal from a final order may raise, on appeal, every issue presented by the order that is the subject of the appeal. But that jurisdiction does not extend to issues that are not presented by the final order, because an appellate court's jurisdiction to grant relief pursuant to Neb. Rev. Stat. § 25-1911 (Reissue 2016) is limited to reversal, vacation, or modification of the final order from which the appeal is taken.

         7. Jurisdiction: Words and Phrases. In modern practice, the writ of prohibition is an extraordinary writ, issued by a superior court to an inferior judicial tribunal to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has control, or from exceeding its legitimate powers in a matter of which is has jurisdiction.

         8. __:__. Prohibition is a preventative remedy rather than a corrective one.

         [298 Neb. 245] 9. Jurisdiction. Mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to the extraordinary remedy by prohibition, both because there has been no usurpation or abuse of power and because there exist other adequate remedies.

         10. __. In general, three things are necessary to justify the issuance of a writ of prohibition: (1) that the court, officer, or person against whom it is directed is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power by such court, officer, or person is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy.

         Appeal from the District Court for Fillmore County: Ricky A. Schreiner, Judge. Affirmed.

          Chad J. Wythers, of Berry Law Firm, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Heavican, C.J.

         INTRODUCTION

         James R. Zeleny's petition for a writ of prohibition was ...


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