Susan J. Bayliss, Personal Representative of the Estate of Ruth E. Clason, deceased, appellee,
Steven E. Clason, Personal Representative of the Estate of F.W. Eugene Clason, deceased, appellant, and David W. Pederson, Special Fiduciary of the Clason Living Trust Dated March 31, 2008, and Any Amendments Thereto, et al., appellees.
Jurisdiction: Appeal and Error. A
jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in a light most favorable to the party against whom
the judgment is granted and gives such party the benefit of
all reasonable inferences deducible from the evidence.
Judgments: Pleadings: Appeal and Error. A
motion to alter or amend a judgment is addressed to the
discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion.
Judgments: Words and Phrases. A judicial
abuse of discretion requires that the reasons or rulings of
the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result.
Jurisdiction: Parties: Waiver. The absence
of an indispensable party to a controversy deprives the court
of subject matter jurisdiction to determine the controversy
and cannot be waived.
Jurisdiction: Appeal and Error. When a lower
court lacks the power, that is, the subject matter
jurisdiction, to adjudicate the merits of a claim, issue, or
question, an appellate court also lacks the power to [26
Neb.App. 196] determine the merits of the claim, issue, or
question presented to the lower court.
Parties: Equity: Appeal and Error. When it
appears that all indispensable parties to a proper and
complete determination of an equity cause were not before the
district court, an appellate court will remand the cause for
the purpose of having such parties brought in.
Declaratory Judgments. An action for
declaratory judgment is sui generis; whether such action is
to be treated as one at law or one in equity is to be
determined by the nature of the dispute.
Parties: Words and Phrases. Necessary
parties are parties who have an interest in the controversy,
and should ordinarily be joined unless their interests are
separable so that the court can, without injustice, proceed
in their absence.
Declaratory Judgments: Courts: Jurisdiction: Parties:
Waiver. The presence of necessary parties in
declaratory judgment actions is jurisdictional and cannot be
waived, and if such persons are not made parties, then the
district court has no jurisdiction to determine the
Parties: Words and Phrases. An indispensable
party to a suit is one whose interest in the subject matter
of the controversy is such that the controversy cannot be
finally adjudicated without affecting the indispensable
party's interest, or which is such that not to address
the interest of the indispensable party would leave the
controversy in such a condition that its final determination
may be wholly inconsistent with equity and good conscience.
Jurisdiction: Service of Process: Waiver.
Participation in the proceedings on any issue other than the
defenses of lack of jurisdiction over the person,
insufficiency of process, or insufficiency of service of
process, waives all such issues except as to the objection
that the party is not amenable to process issued by a court
of this state.
Service of Process: Waiver. A general
appearance waives any defects in the process or notice, the
steps preliminary to its issuance, or in the service or
Jurisdiction: Pleadings: Parties. A party
will be deemed to have appeared generally if, by motion or
other form of application to the court, he or she seeks to
bring its powers into action on any matter other than the
question of jurisdiction over that party.
Summary Judgment. Summary judgment is proper
when the pleadings and evidence admitted at the hearing
disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment
as a matter of law.
Neb.App. 197] 16. Summary Judgment:
Proof. A party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that it
is entitled to judgment as a matter of law. If the movant
meets this burden, then the nonmovant must show the existence
of a material issue of fact that prevents judgment as a
matter of law.
Summary Judgment: Evidence. When the
parties' evidence would support reasonable, contrary
inferences on the issue for which a movant seeks summary
judgment, it is an inappropriate remedy.
Trial: Evidence. Where reasonable minds
could draw different conclusions from the facts presented,
such presents a triable issue of material fact.
Deeds: Proof. It is essential to the
validity of a deed that there be a delivery, and the burden
of proof rests upon the party asserting delivery to establish
it by a preponderance of the evidence.
Deeds: Intent. To constitute a valid
delivery of a deed, there must be an intent on the part of
the grantor that the deed shall operate as a muniment of
title to take effect presently.
Deeds. The essential fact to render delivery
effective is always that the deed itself has left the control
of the grantor, who has reserved no right to recall it, and
it has passed to the grantee.
Deeds: Intent. Whether a deed or other
instrument conveying an interest in property has been
delivered is largely a question of intent to be determined by
the facts and circumstances of the particular case.
Deeds. Recordation of a deed generally
Deeds: Intent. Whether or not a deed has
been delivered is a mixed question of law and fact. The
element which controls the resolution of that question is the
intention of the parties, especially the intention of the
grantor. The vital inquiry is whether the grantor intended a
complete transfer-whether the grantor parted with dominion
over the instrument with the intention of relinquishing all
dominion over it and of making it presently operative as a
conveyance of the title to the land.
___:___. It is not necessary, to effectuate delivery, that a
deed actually be handed over to the grantee or to another
person for the grantee. There may be a delivery
notwithstanding that the deed remains in the custody of the
grantor. If a valid delivery takes place, it is not rendered
ineffectual by the act of the grantee in giving the deed into
the custody of the grantor for safekeeping. It is all a
question of the intention of the parties, which may be
manifested by words or acts or both.
___:___. If a deed, although acknowledged, is not recorded
and is in the grantor's possession at the time of his
death, those circumstances, [26 Neb.App. 198] unless
explained, are deemed conclusive that the parties did not
intend a complete transfer.
Deeds: Presumptions. There is a presumption
of nondelivery if the evidence shows that a deed was in the
grantor's possession at the time of his death and was not
then recorded. Such a showing places upon the grantees the
burden of going forward with the evidence, more accurately,
the burden of persuasion, to rebut the presumption of
Deeds: Intent: Proof. The burden of proof
rests upon the party asserting delivery to establish it by a
preponderance of the evidence, and to constitute a valid
delivery of a deed there must be an intent on the part of the
grantor that the deed shall operate as evidence of title to
take effect presently.
Deeds: Presumptions: Proof. When a deed is
found in the grantee's possession during the lifetime of
the grantor, this is prima facie evidence of delivery, and
the burden of proof is upon the one who disputes this
Deeds. Where the same individual is both a
deed's grantor and its sole grantee, no justifiable
inference regarding the effectiveness of delivery may be
drawn merely from that individual's continuous possession
and control of the deed.
Trusts: Intent. When there are two or more
instruments relating to a trust, they should be construed
together to carry out the settlor's intent.
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
Summary Judgment. At the summary judgment
stage, the trial court determines whether the parties are
disputing a material issue of fact. It does not resolve the
Summary Judgment: Motions for New Trial. A
motion for new trial following the entry of summary judgment
is not a proper motion.
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.
Pleadings: Judgments: Time. In order to
qualify for treatment as a motion to alter or amend a
judgment, the motion must be filed no later than 10 days
after the entry of judgment, as required under Neb. Rev.
Stat. § 25-1329 ...