*1 316 Lippincott Wolski,
or other suitable action. v. 147 Neb. 25 W. N. 2d The trial court University’s should sustained the motion to dis miss.
Accordingly, of the trial court is re- versed and the cause remanded with directions plaintiff vacate favor and to prejudice. dismiss action without Reversed and remanded WITH DIRECTIONS. Management, corporation, a Improvement No. Douglas County, Nebraska, appellees, v. District No. Impleaded County, Nebraska, appellant, with Company, Inc., National Travelers Life corporation, Company, Homesteaders Life appellees. corporation, al., et
Warren S. Zweiback appellant. Pavel, P.C., & Festersen Buckley Wright, Cline, Williams, Bren L. John- curiae, Oldfather, for amicus The son & Nebraska Industry Association. Securities
August Mason, Ross Ross & Davis Management, Inc., National Travelers Life Com- Company. pany, Ralph Inc., and Homesteaders Life appellee Coenen, of Bradford & Hetzner W. No.
171. J., Clinton, before Heard Krivosha, White, C. Stanley Judges. JJ., Gitnick, Krivosha, C. J. appeal from
This is an a decree the District Douglas County, sustaining Nebraska, Court for summary judgment appellees, motion for filed (Davis), Management, Na- corporation, Company, Inc., a tional Travelers Life Company, corporation, and Homesteaders against Life District No. 276 (SID 276). County, Douglas Nebraska plaintiffs some of Lot Both of the own (SID County, Addition, Nebraska Parkside any part Property), although of SID 276 neither owned Property 276 created. at the time SID was By summary judgment, plain- its motion for requested tiffs the trial court to find and determine any authority that SID the was without to exercise jurisdiction of a dis- trict over real estate described as Lot Parkside Douglas County, Addition, Nebraska, and that SID plaintiffs’ 276 was void ab initio. The crux of the petition claim is set out in the amended filed alleged Davis wherein it is 276 is contained entirely within the boundaries of and Im- (SID 171), provement larger District No. 171 a much thereby making SID, SID 276 void ab initio. Davis’ theory occupy is that two SIDs cannot the same ter- ritory petition at the same time. Davis’ amended alleged pub- further that SID 171 had constructed all lic had made none. That fact was denied the answer of SID 276. pleadings April further disclose that on Douglas County, 1974,the Nebraska, District Court for *3 finding duly entered its decree that SID 276 was organized according to law and was declared to be a public under sections 31-727to R. appeal R. S. 1943. No was taken from that decree binding and was and remains a final and order. plaintiffs’ The trial court sustained the motion for summary judgment doing and in so made certain findings including finding that at the time purported public of the creation of SID 276 all street improvements adjoining Property the SID 276 had special been made SID 171 and assessments for improvements duly against had been levied property. The court also found in its decree that all expenditures of the made SID 276 consisted of paving, systems, utilities, and electrical distribution private property developers. all situated on totally The court further found that SID 276 was in- territory cluded within the SID 171 and that “two Sanitary- Improvement distinct cannot, and Districts territory, pur- co-exist; within that ported Improvement creation of and Dis- powers, juris- trict No. 276 was void ab initio and all privileges sought diction exercised said District No. are null effect and void.” court dissolved 276. (1) assigns as errors: That the trial court holding merely 276 to
erred be void ab initio geographic its because boundaries fall within the boundaries another (2)
district; granting trial court erred summary judgment a motion in that there existed genuine issues of fact. We have reviewed the record case and the trial this believe court was indeed in granting summary judgment. error in the motion for therefore reverse the We trial court and remand cause. summary judgment a motion
Before can be (1) granted, requirements two must be met: There genuine any fact; be no issue must as to material (2) moving party judg- must be entitled to as a Homes, ment matter of law. Clemens Mobile Industries, Inc. v. Guerdon 260 N. judg- Therefore, 2d 310 W. order correct, ment trial court (1) this case to be genuine must find: That there were no issues as (2) any facts; material and the other were entitled to as a mat- law. ter of affidavits, counteraffidavits,
An examination of the interrogatories, interrogatories, answers several stipulation exhibits, and made at trial to the effect .were not on made dedicated public streets, easements, but rather on streets questions little to the several does resolve *4 pleadings. The record does not raised even clearly improvements were, set out what al- though a resolution offered evidence describes the improvements public improvements. various We way determining no Other that fact. than unsupported for Davis statement of counsel argument to the trial court to the time of made at pri- consisted of a that the the effect utility parking connections, lot and interior vate find no evidence question on We do not this issue. point integrity merely out that counsel. We summary judg- motion for before one can sustain a genuine questions of all material facts nec- ment all essary for the determination must be resolved. The concerning type improve- questions nature ments were so resolved. appear summary the motion for
It would only if, be sustained this case as a could law, the creation of one SID within the matter automatically boundaries, of another SID rendered ab initio as contended for the second SID void plaintiffs. We do not believe that be the law. San- purely itary improvement districts are creatures §§ and were first created in 1947. See 31-701 of statute Legislature 31-726, R. R. S. 1943. In sections 31-727to 31-762entitled “DISTRICTS enacted ACT OF 1949.” For a FORMED UNDER Nebraska tion, review of legisla- district Creighton L. Rev. see Nebraska Legislation. position, support of their cite 2 7.08, (3d Ed.); Municipal Corporations McQuillan, p. § 298, and decision in of Bellevue v. our Eastern Sarpy County Dist., S. F. P. 143 N. W. however, McQuillan, 2d 62 The citation in municipal corpora two makes clear that before occupying incompat are tions the same boundaries powers priv ible, it must be established governmental ileges separate conferred on the scope agencies substantially are coextensive objective. points that, in out The author further Legisla restrictions, absence of constitutional municipal of two ture authorize the formation territory corporations at time in the same *5 corporations municipal purposes, for different may purposes organized include for different identity territory. limits territorial The same public corporations if separate immaterial such is governmental separate and distinct entities purposes. purposes of if the for us to determine
In order incompat- are identical as of the SIDs so each of association ible, the articles need to examine for SID The articles of association the two SIDs. of association in evidence. The articles 276 are it maintains that SID 171 not. The fact 171 are SID powers performing and duties authorized all the is question. does not answer statute purposes 1943, 31-727, out the R. R. S. sets Section may However, an SID be created. for which authority of asso- the articles exercise that order to purposes of the SID. out in detail the must set ciation pur- may or all be created some An SID poses 31-727, 1943. This R. R. S. set out section provision abundantly clear is made (3), part: 31-727 R. R. S. which reads section “* * * corporation hereafter formed No formed or perform any functions, than those new other shall formed, without for which the was amending to include its articles of association may here be One SID new function functions.” something purpose else. for one and the other If, fact, created and authorized was performed perform evi- the functions be and cannot effect must be offered dence to that might conjecture. however, left to Even any event, dissolving justify initio. 276 ab not not sufficient SIDs is coexistence of the two the mere to justify case. order this the trial court’s County Sarpy City F. P. of Bellevue v. Eastern supra, Dist., little aid or assistance is likewise of may support not coexten- that two SIDs of the claim purposes. Belle- sively for different exist brought pursuant provisions vue case was to the specifically pro- section R. R. S. municipality right vided that a had the to annex a portion doing adjustments of a district and when so regard ownership are to be made with to the of assets payment and the tainly of liabilities. The decision cer- occupy did not establish that two SIDs territory. appears contemplates It to us the act further *6 may there be occasions where the creation of an SID may be coextensive with all or of another dis- specifically 31-728, trict. Section R. R. S. re- quires immediately petition after and ar- filed, ticles of association have been the clerk of the District Court shall issue a summons directed to the proposed several owners of the real estate in the dis- right trict. Those individuals then have a under sec- object 31-729, tion R. R. S. to to the creation of part, district, on the basis that their land will by not be benefited provements. the installation of the various im- permitted The District Court is then property create such a district but exclude certain thereby. which the court finds will not be benefited specifically provides: The act “No lands included any municipal within shall be included * * any sanitary district *.” 31-730, § If, fact, See R. R. S. 1943. it were true municipalities that at common law two could not co- appear exist, then it would there was little need specifically exempt municipal corpo- land within a being sanitary ration from included within a and im- provement district. authorizing
The statutes the creation of SIDs con template being that before an SID come into petition must be filed with the District Court of the county principal part in which the of the land will lie, and a decree must be entered that court find ing determining the SID was indeed law fully validly seq., § created. See 31-727et R. R. S. that, 1943. The evidence this case discloses application SID 276 did file such an the Dis- Douglas County, April trict Court 25, 1974, Nebraska. On was declared the District Court Douglas County, duly organized Nebraska, according to law and in that decree declared to was- public corporation be State of Nebraska 31-769, sections R. R. under 31-727 to as difficulty understanding amended. We have how Douglas County, Nebraska, the District Court for can at one moment enter a decree which becomes binding directing final and im- that a duly provement organized district has been subsequent created and thereafter enter a decree collaterally in effect which attacks its own and declares its own act void ab initio.
The decree of the District Court County, April Nebraska, 25, 1974, entered on was a judgment. except It final could not be set aside specifically A authorized statute. may only is not void be set aside after in section
term at which was entered as authorized
Lincoln,
R. R. S. 1943.
Gant v.
108, Neb.
N. W. 2d 549
Where
court
*7
jurisdiction
subject
parties
has
and the
mat
subject
ter,
its
is not
to collateral attack.
State ex rel. Southeast Rural Fire P. Dist. v. Gross
(1972).
man,
188 Neb.
2d
A Dis
N. W.
power
modify
judg
has no
trict Court
to vacate
its
ground
term on
ment after
the
that an error of law
by
rendering
judg
had been committed
such
Omaha,
ment. Paine v. United
Nat. Bank of
States
248, 257
even a
199 Neb.
N. W. 2d 826
Not
is
is void ab
which
declared unconstitutional
statute
previous judgment
upon the
initio insofar as a
based
County
Norlanco,
Inc. v.
is concerned.
statute
(1970),
Madison,
186 Neb.
I in the of the court concur paragraph in the last contained discusses previous judgment determines court rendered under sections 31-727 R. R. judicata amended, is as res determina- paragraph opinion tive of this case. That raises an issue parties not raised nor discussed totally unnecessary briefs, in the is to the decisions purports case, in this to decide an issue not even pleadings. judicata raised Res is a defensive ought by pleadings matter which to be raised as well by proof.