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Nebraska Supreme Court Advance S

298 Nebraska Report

ZELENY v. STATE

Cite as 298 Neb. 244

James R. Zeleny, appellant, 

State of Nebraska, appellee

___ N.W.2d ___

Filed December 1, 2017. No. S-16-953.

1. Judgments: Appeal and Error. Generally, the appropriate standard of 

review for an order granting relief by way of a writ of prohibition is 

de novo.

2. Jurisdiction: Final Orders: Appeal and Error. An appellate court has 

jurisdiction to review a judgment rendered or final order made by the 

district court.

3. Judgments: Final Orders: Words and Phrases. According to Neb. 

Rev. Stat. § 25-1301(1) (Reissue 2016), a judgment is the final determination of the rights of the parties in an action.

4. Actions: Jurisdiction. A motion for a writ of prohibition is an action.

5. Judgments: Final Orders: Jurisdiction: Appeal and Error. An appellate court’s jurisdiction is limited to the judgment or final order from 

which the appeal is taken.

6. Final Orders: Jurisdiction: Appeal and Error. An appeal from a final 

order may raise, on appeal, every issue presented by the order that is the 

subject of the appeal. But that jurisdiction does not extend to issues that 

are not presented by the final order, because an appellate court’s jurisdiction to grant relief pursuant to Neb. Rev. Stat. § 25-1911 (Reissue 

2016) is limited to reversal, vacation, or modification of the final order 

from which the appeal is taken.

7. Jurisdiction: Words and Phrases. In modern practice, the writ of 

prohibition is an extraordinary writ, issued by a superior court to an 

inferior judicial tribunal to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over 

which it has control, or from exceeding its legitimate powers in a matter 

of which is has jurisdiction.

8. ____: ____. Prohibition is a preventative remedy rather than a corrective one.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/26/2018 09:13 AM CST
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ZELENY v. STATE

Cite as 298 Neb. 244

9. Jurisdiction. Mere error, irregularity, or mistake in the proceedings of 

a court having jurisdiction does not justify a resort to the extraordinary 

remedy by prohibition, both because there has been no usurpation or 

abuse of power and because there exist other adequate remedies.

10. ____. In general, three things are necessary to justify the issuance of a 

writ of prohibition: (1) that the court, officer, or person against whom it 

is directed is about to exercise judicial or quasi-judicial power; (2) that 

the exercise of such power by such court, officer, or person is unauthorized by law; and (3) that it will result in injury for which there is no 

other adequate remedy.

Appeal from the District Court for Fillmore County: Ric

A. Schreiner, Judge. Affir

Chad J. Wythers, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Funke, J

Heavican, C

INTRODUCTION

James R. Zeleny’s petition for a writ of prohibition was 

denied. He appeals. We affirm.

FACTUAL BACKGROUND

Zeleny was charged by information in the county court 

with operating a motor vehicle “while under the influence of 

alcoholic liquor or . . . when he had a concentration of eighthundredths of one gram or more by weight of alcohol per two 

hundred ten liters of his breath.” That charge was enhanced 

with the allegation that Zeleny’s alcohol level was “fifteen 

hundredths of one gram or more by weight of alcohol per two 

hundred ten liters of his breath.”

Pursuant to a plea agreement, Zeleny was charged with 

“driving under the influence of alcohol, first offense, under 
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298 Nebraska Report

ZELENY v. STATE

Cite as 298 Neb. 244

.15.” A separate charge of failure to give information at an 

accident scene was dismissed. Zeleny was given verbal notice 

of this amendment at a hearing on the plea agreement, but the 

original complaint was not amended by interlineation and an 

amended information was not filed. Zeleny pled guilty to the 

single charge, as verbally amended.

At the hearing before the county court, a factual basis for 

the crime was established, with the State indicating Zeleny 

had called law enforcement to report that he was involved 

in a single-vehicle accident. Zeleny reported that he had 

crashed into some cattle, drove the vehicle involved in the 

crash to his home, and returned to the scene in a different 

vehicle. The responding officer observed the odor of alcohol 

on Zeleny’s person and noted that Zeleny’s voice was slurred 

and his eyes were watery and bloodshot. Zeleny failed a preliminary breath test and field sobriety tests. He was arrested 

and transported to a nearby hospital, where a blood sample 

was drawn. That sample tested at a blood alcohol content 

of .297.

Prior to sentencing, Zeleny filed a motion to arrest judgment in the county court, which was denied. Zeleny then filed 

a petition for a writ of prohibition with the district court, asking that the court restrain the county court from sentencing 

him in the underlying case for driving under the influence. 

Zeleny’s petition for a writ was denied. The basis for both 

motions was Zeleny’s contention that there was an insufficient factual basis to support his plea; specifically, Zeleny 

argues that he was charged with driving under the influence 

by a measurement of breath, while the factual basis indicated 

that the crime was committed by a measurement of blood. 

Zeleny appeals.

ASSIGNMENTS OF ERROR

Zeleny assigns that (1) the county court erred in denying 

appellant’s motion to arrest judgment and (2) the district court 

erred in denying his motion for a writ of prohibition.
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Nebraska Supreme Court Advance S

298 Nebraska Report

ZELENY v. STATE

Cite as 298 Neb. 244

STANDARD OF REVIEW

[1] Generally, the appropriate standard of review for an order 

granting relief by way of a writ of prohibition is de novo.1

ANALYSIS

Issues on Appeal.

As an initial matter, we must consider what issues are before 

us in this appeal. Zeleny attempts to appeal the county court’s 

denial of his motion to arrest judgment and the district court’s 

denial of his motion for a writ of prohibition. The State contends that only the denial of the motion for a writ of prohibition is properly before us.

[2-4] An appellate court has jurisdiction to review a “judgment rendered or final order made by the district court.”2

According to Neb. Rev. Stat. § 25-1301(1) (Reissue 2016), a 

“judgment is the final determination of the rights of the parties 

in an action.” We have previously indicated that a motion for 

a writ of prohibition is an action.3 The denial of Zeleny’s writ 

of prohibition, then, was a final determination of that action. 

Thus, the assignment of error relating to the writ of prohibition 

is properly before this court.

[5,6] But we do not have jurisdiction over the denial of the 

motion to arrest judgment filed in the county court. An appellate court’s jurisdiction is limited to the judgment or final 

order from which the appeal is taken.4 An appeal from a final 

order may raise, on appeal, every issue presented by the order 

that is the subject of the appeal. But that jurisdiction does 

not extend to issues that are not presented by the final order, 

because an appellate court’s jurisdiction to grant relief pursuant to Neb. Rev. Stat. § 25-1911 (Reissue 2016) is limited 

1 72A C.J.S. Prohibition § 91 (2015).

2 Neb. Rev. Stat. § 25-1911 (Reissue 2016).

3 State, ex rel. Wright, v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).

4 State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
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ZELENY v. STATE

Cite as 298 Neb. 244

to reversal, vacation, or modification of the final order from 

which the appeal is taken.5

In other words, while an appellate court can reverse, vacate, 

or modify a final order, it cannot address issues that do not 

bear on the correctness of the final order upon which its appellate jurisdiction is based.6

 Without opining on the finality of 

the county court’s order denying Zeleny’s motion to arrest 

judgment, we observe that it appears Zeleny did not file a separate notice of appeal from that order. And even if he had filed 

a notice of appeal in the county court, the appeal would have 

run to the district court in a separate proceeding from that initiated by Zeleny’s petition for a writ of prohibition. The motion 

to arrest judgment is simply not before us. As such, we lack 

jurisdiction to determine the merits of Zeleny’s first assignment 

of error relating to the county court’s denial of the motion to 

arrest judgment.

Writ of Prohibition.

We turn to Zeleny’s contention that the district court erred in 

denying the petition seeking a writ of prohibition.

[7] In modern practice, the writ of prohibition is an extraordinary writ, issued by a superior court to an inferior judicial 

tribunal to prevent the latter from exceeding its jurisdiction, 

either by prohibiting it from assuming jurisdiction in a matter over which it has control, or from exceeding its legitimate 

powers in a matter of which is has jurisdiction.7

[8,9] Prohibition is a preventative remedy rather than a corrective one.8

 Mere error, irregularity, or mistake in the proceedings of a court having jurisdiction does not justify a resort to 

5 See id.

6 Id.

7 Conkling v. Delany, 167 Neb. 4, 91 N.W.2d 250 (1958).

8 State of Nebraska ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373 

(1959).
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ZELENY v. STATE

Cite as 298 Neb. 244

the extraordinary remedy by prohibition, both because there 

has been no usurpation or abuse of power and because there 

exist other adequate remedies.9 Whatever power is conferred 

may be exercised, and, if it is to be exercised injudiciously or 

irregularly, it amounts to an error merely, and not a usurpation 

or excess of jurisdiction.10

Prohibition is a counterpart to a writ of mandamus in that 

the writ of mandamus is used to compel the performance of 

certain activities, while a writ of prohibition is used to restrain 

the performance of certain activities.11 A writ of prohibition is 

the legal equivalent of the equitable remedy of injunction.12

[10] In general, three things are necessary to justify the 

issuance of a writ of prohibition: (1) that the court, officer, or 

person against whom it is directed is about to exercise judicial 

or quasi-judicial power; (2) that the exercise of such power 

by such court, officer, or person is unauthorized by law; and 

(3) that it will result in injury for which there is no other 

adequate remedy.13

In this case, we agree that the county court is set to sentence 

Zeleny, which is a judicial power. But the exercise of this 

power was not unauthorized by law. Contrary to Zeleny’s suggestion otherwise, it is plain that a county court has, on these 

facts, the jurisdiction to sentence Zeleny for his driving under 

the influence conviction.

Moreover, the issuance of a writ of prohibition was not the 

only remedy to cure Zeleny’s claimed injury. Zeleny complains that his plea was not supported by a sufficient factual 

basis. Assuming without deciding that this was the case, other 

9 Conkling v. DeLany, supra note 7.

10 Id.

11 72A C.J.S., supra note 1, § 1.

12 Id.

13 See, Line v. Rouse, 241 Neb. 779, 491 N.W.2d 316 (1992); State of 

Nebraska ex rel. Line v. Kuhlman, supra note 8.
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ZELENY v. STATE

Cite as 298 Neb. 244

remedies are available to him. Zeleny could move to withdraw 

his plea, or he could appeal from his conviction following 

sentencing. Zeleny has failed to meet the standards for the issuance of such an extraordinary writ.

There is no merit to Zeleny’s second assignment of error.

CONCLUSION

The decision of the district court is affirmed.

Affirmed

Wright, J., not participating.