Muller v. Weeder, 986 N.W.2d 38

Muller (plaintiff) and Weeder (defendant) mediated a division-fence dispute under Neb. Rev. Stat. § 34-112.02; the county court entered a conditional judgment requiring Weeder to repair his portion or face a money judgment for Muller's repair costs.
Muller repaired Weeder’s portion, submitted costs, and the county court entered a money judgment; district court affirmed as modified on appeal.
Weeder died in October 2017 while his appeal to the Nebraska Court of Appeals was pending; no suggestion of death or revivor was filed in that court.
The Court of Appeals issued an opinion reversing and remanding; on remand the county court (relying on that mandate) held proceedings and entered a contempt-based money judgment against Weeder’s successors in interest.
The district court later dismissed the appeal for lack of jurisdiction because the proceedings allegedly abated on Weeder’s death; the Nebraska Supreme Court moved the appeal to its docket and considered whether the death suspended the action and deprived lower courts of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the fence-dispute action abated or survived Weeder’s death	Muller: the action is a statutory contribution claim under §34-112.02 and survives death	Successors/defense: the post-remand proceeding was civil-contempt/personal and abated on death	Held: The action is a statutory contribution (fence) claim that survives the defendant’s death
Whether revivor was required and where it must occur	Muller: substitution in county court after remand cured the defect	Defense: revivor must occur in the court that had jurisdiction when death occurred (Court of Appeals)	Held: Revivor must be in the court having jurisdiction at the time of death (Court of Appeals); substitution in county court was ineffective
Validity of the Court of Appeals’ opinion and mandate issued after death	Muller: decision should stand (court unaware of death)	Defense: Court of Appeals lacked jurisdiction after death and its opinion/mandate are void	Held: Court of Appeals lacked jurisdiction once defendant died pending appeal; its opinion and mandate are void and vacated
Whether this appeal may proceed in the Nebraska Supreme Court	Muller: district court erred in dismissing for lack of jurisdiction; appeal should be heard	State/successors: proceedings abated or were void without proper revivor	Held: Supreme Court lacks jurisdiction to decide merits because lower courts also lacked jurisdiction after death; appeal dismissed and the cause remanded for revivor procedures

State v. Pauly, 311 Neb. 418 (standard of review on jurisdictional dismissal)
Evert v. Srb, 308 Neb. 895 (vacatur/dismissal when action abates on appeal)
Anderson v. Finkle, 296 Neb. 797 (relevant to suspension/abatement and void orders after death)
In re Conservatorship of Franke, 292 Neb. 912 (survival/abatement principles and revivor rules)
Kotrous v. Zerbe, 287 Neb. 1033 (characterizing §34-112.02 actions as contribution claims)
Sherman v. Neth, 283 Neb. 895 (limitations on survival and abatement doctrines)
Fox v. Nick, 265 Neb. 986 (statutory revivor requirements and consequences of failing to revive)
Independent Lubricating Co. v. Good, 133 Neb. 431 (revivor must occur in court having jurisdiction at time of death)
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938 (appellate power to vacate void lower-court orders)
Bullock v. J.B., 272 Neb. 738 (general rule on absolute abatement)