Evert v. Srb, 308 Neb. 895

Adjacent Nebraska landowners Evert (plaintiffs) and Srb (defendants) disputed responsibility for a portion of a division fence where cattle were crossing the unfenced boundary.
The Everts sued in county court under Neb. Rev. Stat. § 34-112.02 seeking contribution to construct a division fence.
After a bench trial, the county court found the Everts met statutory requirements and issued a conditional order: the Srbs had 10 days to state willingness to build; if they refused or failed to respond, the Everts could enter Srb land, construct the fence, submit an itemized cost statement, and the Srbs could request a hearing within 10 days to contest their equitable share.
The county court did not fix a final monetary contribution; the order tied the ultimate obligation to future actions by the parties and potential further court proceedings.
The Srbs appealed to the district court; the district court affirmed but remanded for determination of contribution. The Srbs appealed to the Nebraska Supreme Court.
The Nebraska Supreme Court held the county court’s order was a conditional, nonfinal order and therefore not appealable; the district court lacked jurisdiction, so its order was vacated and the appeal dismissed for lack of jurisdiction.

Issue	Plaintiff's Argument (Evert)	Defendant's Argument (Srb)	Held
Whether the county court’s order was a final, appealable judgment	The order resolved the dispute and required no further court action	The order was conditional on future acts and thus nonfinal	Held: The order was conditional and not a final, appealable judgment
Whether the district court had jurisdiction to hear the appeal from county court	Evert: District court could review county court’s order as a final determination	Srb: District court lacked jurisdiction because the county order was not final	Held: District court lacked jurisdiction because county court issued no final order
Whether county court’s inclusion of equitable, performance-based provisions was authorized under fence statutes	Evert: Statutes permit judgments determining rights; county procedures were appropriate	Srb: County court overreached by leaving contribution unresolved and tying relief to future actions	Held: Court did not reach merits; statutory scheme requires a determination of contribution, but conditional order was inappropriate
Appropriate remedy when an appellate court lacks jurisdiction due to a nonfinal lower-court order	Evert: Affirmances should stand where findings were correct	Srb: Lower appellate action is void if jurisdiction lacking	Held: Vacate district court order and dismiss the appeal for lack of jurisdiction

In re Estate of Abbott-Ochsner, 299 Neb. 596 (jurisdictional questions of law reviewed de novo)
Village of Orleans v. Dietz, 248 Neb. 806 (county court ruling that was not a judgment—district court lacked jurisdiction)
Deuth v. Ratigan, 256 Neb. 419 (interlocutory orders retain court for further action and are nonappealable)
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428 (conditional judgments are void and not appealable)
Stevens v. Stevens, 292 Neb. 827 (orders conditioned on future action are nonappealable unless converted to final order)
Nichols v. Nichols, 288 Neb. 339 (conditional orders are not judgments)
Custom Fabricators v. Lenarduzzi, 259 Neb. 453 (conditional orders that do not perform in praesenti have no force as final orders)
Omaha Expo. & Racing v. Nebraska State Racing Comm., 307 Neb. 172 (appellate courts may determine they lack jurisdiction when lower court lacked it)
Francisco v. Gonzalez, 301 Neb. 1045 (court may vacate void orders and remand with directions)