34 Neb. App. 384
Neb. Ct. App.2026Background
- Appellees obtained a Kansas judgment of about $1.2 million against John R. Rohrbough and his son Tydd, later registering the judgment in Nebraska and seeking execution on Seward County property tied to John and Berneta Rohrbough. 1
- John and Berneta had created a revocable trust in 2012, placed most property in it, and later disputed whether a 2013 amendment made John’s trust interest irrevocable. 2
- The disputed real estate, Home Place and Pasture Ground, was conveyed among John, Berneta, and the Trust in several transfers from 2012 through 2019. 3
- The district court found the foreign judgment lien attached, ruled several transfers fraudulent, and held John retained one-half interests in both parcels subject to execution and sale. 4
- John died on May 10, 2025, before the notice of appeal was filed, and appellants filed no motion for revivor or substitution in the district court. 5
- The Court of Appeals dismissed the appeal for lack of subject matter jurisdiction because John was an indispensable party whose absence could not be waived. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether John was properly made a party to the appeal after his death 7 | Appellees said no revivor or substitution occurred, so John could not be a party. | Berneta said the district court had already ruled, so no revivor was needed. | John was not a party because no revivor or substitution was sought in district court. 8 |
| Whether John’s absence deprived the court of jurisdiction 9 | Appellees argued John was indispensable and his absence defeated jurisdiction. | Berneta argued the appeal could proceed without revivor because judgment had already entered. | John was indispensable, so the court lacked subject matter jurisdiction and dismissed the appeal. 10 |
Key Cases Cited
- Kellogg v. Mathiesen, 320 Neb. 223 (Neb. 2025) (jurisdictional issues without factual dispute are questions of law 11)
- Parish v. Parish, 314 Neb. 370 (Neb. 2023) (subject matter jurisdiction can be raised at any time 12)
- In re Conservatorship of Franke, 292 Neb. 912 (Neb. 2016) (a deceased person cannot maintain or defend an action; substitution rules apply 13)
- Schumacher v. Johanns, 272 Neb. 346 (Neb. 2006) (abatement and revivor statutes apply in appellate courts 14)
- Independent Lubricating Co. v. Good, 133 Neb. 431 (Neb. 1937) (an appeal generally cannot be prosecuted in the name of a person who died before appeal 15)
- Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73 (Neb. 2017) (distinguishes necessary parties from indispensable parties 16)
- Morse v. Olmer, 29 Neb. App. 346 (Neb. Ct. App. 2021) (absence of an indispensable party deprives the court of subject matter jurisdiction 17)
- Davis v. Moats, 308 Neb. 757 (Neb. 2021) (indispensability depends on the particular litigation 18)
- Madison County v. Crippen, 143 Neb. 474 (Neb. 1943) (all parties affected by reversal or modification must be parties to the appeal 19)
- In re Estate of Fines, 139 Neb. 247 (Neb. 1941) (all affected parties must be made parties to appellate review 20)
- Reilly v. Merten, 125 Neb. 558 (Neb. 1933) (same rule requiring affected parties in appellate proceedings 21)
- Barkley v. Schaaf, 110 Neb. 223 (Neb. 1923) (same rule requiring affected parties in appellate proceedings 22)
- Muller v. Weeder, 313 Neb. 639 (Neb. 2023) (a party’s death can immediately affect appellate jurisdiction 23)
- In re Guardianship of Aimee S., 24 Neb. App. 230 (Neb. Ct. App. 2016) (summary dismissal on jurisdictional grounds does not foreclose later dismissal 24)