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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

Capital One Bank (USA), N.A., app

cross-appellant, v. Nelseena J. Lehmann

appellant and cross-appellee

___ N.W.2d ___

Filed September 22, 2015. No. A-14-1109.

1. Courts: Appeal and Error. The district court and higher appellate 

courts generally review appeals from the county court for errors appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.

3. ____: ____. In instances when an appellate court is required to review 

cases for error appearing on the record, questions of law are reviewed de 

novo on the record.

4. Pleadings. “Special appearances” have been abolished in Nebraska; 

however, all pleadings shall be construed as to do substantial justice.

5. Judgments: Jurisdiction. A judgment entered without personal jurisdiction is void.

6. Judgments: Time. Every court possesses the inherent power to vacate a 

void judgment, either during the term at which it was rendered or after 

its expiration.

7. Judgments: Jurisdiction. If it appears that no jurisdiction was acquired 

over a defendant in the manner required by law, a judgment rendered 

against him is void.

8. Judgments: Jurisdiction: Time. Where a judgment is void for want of 

jurisdiction over the person of the defendant, the latter may wait until an 

effort is made to enforce the judgment, before instituting proceedings to 

have such judgment voided or set aside; the lapse of time is not a bar to 

the granting of the motion.

9. Judgments. A proceeding to vacate and set aside a judgment for the 

reason that it is void must be brought in the court in which the judgment 

was rendered.
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

10. Jurisdiction: Service of Process: Waiver. Proper service, or a waiver 

by voluntary appearance, is necessary to acquire personal jurisdiction 

over a defendant.

11. Service of Process. An individual party may be served by certified 

mail.

12. Notice: Service of Process. Although Neb. Rev. Stat. § 25-505.01 

(Cum. Supp. 2014) does not require service to be sent to the defendant’s 

residence or restrict delivery to the addressee, due process requires 

notice to be reasonably calculated to apprise interested parties of the 

pendency of the action and to afford them the opportunity to present 

their objections.

Appeal from the District Court for Red Willow County, 

David Urbom, Judge, on appeal thereto from the County Cour

for Red Willow County, Anne Paine, Judge. Judgment o

District Court affirmed.

Bert E. Blackwell for appellant.

Karl von Oldenburg, of Brumbaugh & Quandahl, P.C., 

L.L.O., for appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judg

Bishop, Judge

Capital One Bank (USA), N.A. (Capital One), obtained 

a default judgment against Nelseena J. Lehmann for unpaid 

credit card charges. Several years later, Lehmann filed a 

“Motion of Special Appearance” and claimed that the county 

court lacked personal jurisdiction over her when it entered the 

default judgment; in her affidavit, Lehmann averred that the 

certified mail containing the complaint was signed for by her 

estranged husband, who did not inform her of the lawsuit. The 

county court for Red Willow County determined that notice 

by certified mail, signed for by Lehmann’s husband, was 

sufficient notice to enter default judgment. The county court 

further determined that Lehmann did not use the appropriate procedure to vacate a default judgment. The county court 

denied Lehmann’s motion for “special appearance.” On appeal, 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

the district court for Red Willow County affirmed. We affirm, 

but for different reasons.

BACKGROUND

Capital One filed a complaint in county court, case No. 

CI 09-685, alleging that Lehmann failed to make payments 

on a credit card account and owed Capital One $2,942.37 

as of November 23, 2009, plus accrued and accruing interest. The “Service Return” shows that the complaint was sent 

via certified mail to Lehmann at an address in McCook, 

Nebraska. Because the file stamps on various pleadings in 

the transcript are difficult to read, we rely on the undisputed 

factual findings of the Red Willow County Court, which were 

as follows:

The pleadings show that the Complaint was filed on 

November 30, 2009[,] and a Service Return was filed 

with the Court on December 24, 2009, showing a certified mail proof [of] service with receipt signed by Kurt 

Lehmann on December 7, 2009. A Motion and Affidavit 

for Default Judgment was filed February 1, 2010[,] and 

the Court entered Default Judgment against [Lehmann] on 

February 10, 2010.

Capital One thereafter began garnishment proceedings in 

case No. CI 09-685. In November 2013, Capital One filed 

an “Affidavit and Praecipe for Summons in Garnishment 

After Judgment,” asking the clerk of the Red Willow County 

Court to issue summons in garnishment upon Lehmann Saddle 

Company in McCook, upon the belief that the company had 

property of and was indebted to Lehmann, the judgment debtor. 

A “Summons and Order of Garnishment in Aid of Execution” 

was sent to Lehmann Saddle Company via certified mail on 

that same date. Similar affidavits, as well as summons and 

orders of garnishment, were filed and sent in January 2014 

(to a bank in Omaha, Nebraska,) and May 2014 (to a bank in 

McCook). It does not appear that Capital One was successful 

in its garnishment attempts.
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

On June 27, 2014, Lehmann filed a “Motion of Special 

Appearance” in case No. CI 09-685 stating:

Without waiving her objection to the jurisdiction of 

this Court, or this person, . . . Lehmann, says:

1. During all times relevant to the allegation in [Capital 

One’s] Petition, . . . Lehmann was a resident and citizen 

of the State of Oklahoma, having moved to Blackwell, 

Oklahoma[,] on September 30, 2009[,] and not returning to Danbury, Nebraska[,] until June 1, 2011, and this 

Court had no jurisdiction over her person. By this motion, 

[Lehmann] specifically preserves and reasserts her special appearance herein, and does not waive her right to 

object and raise the issue of the jurisdiction of this Court 

over her person.

2. Subjecting [Lehmann] to the jurisdiction of this 

court is a denial of due process of law and equal protection of the laws in violation of the Constitution of the 

United States of America and the Constitution of the State 

of Nebraska.

WHEREFORE, . . . Lehmann, requests that her special 

appearance be sustained.

Also on June 27, 2014, Lehmann filed an affidavit, wherein 

she stated:

1. Affiant states that she is the defendant in the above 

entitled case.

. . . .

3. Affiant was living in McCook, Nebraska[,] until 

she moved to Blackwell, Oklahoma[,] on September 

30, 2009.

[4]. On June 1, 2011[,] Affiant moved back to Danbury, 

Nebraska[,] where she now resides.

[5]. Affiant states that she did not receive a bill concerning the above matter.

[6]. Affiant has never received a summons in the above 

entitled case because, due to her separation from her 

husband who sign [sic] for the certified mail, he did not 
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Decisions of the Nebraska Court of Appe

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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

inform her, and affiant was never afforded notice of the 

proceedings and given an opportunity to be heard.

[7]. Affiant states that she did not know about the 

above entitled lawsuit until she received notice of interrogatories on 6-12-14.

A hearing on Lehmann’s “Motion of Special Appearance” 

was held on July 15, 2014. Capital One did not appear at the 

hearing, but the record shows that it did receive notice of the 

hearing. The court received into evidence (1) the “Service 

Return” filed with the court on December 24, 2009, showing 

a certified mail receipt signed by Kurt Lehmann on December 

7 and (2) Lehmann’s affidavit, filed with the court on June 27, 

2014. No testimony was given at the hearing, and the court 

gave “both parties” 14 days to submit letter briefs or other case 

law they wished the court to consider. Lehmann submitted her 

brief to the court on July 25, wherein she argued that because 

there had never been any service against her, Capital One’s 

default judgment was void.

In its order filed on August 1, 2014, the county court found 

that Lehmann was legally married to Kurt Lehmann on the 

date he signed the certified mail receipt and that all requirements of service by certified mail were met. See Neb. Rev. 

Stat. § 25-505.01(1)(c) (Cum. Supp. 2014). The court found it 

had jurisdiction over Lehmann for purposes of entering judgment. The court went on to note that the default judgment was 

entered on February 10, 2010, more than 4 years prior, and 

that any action to vacate or modify a judgment entered in 2010 

would require compliance with the statutory procedures for setting aside a judgment after the term of court; the county court 

specifically cited to Neb. Rev. Stat. § 25-2002 (Reissue 2008) 

(proceedings to vacate or modify judgment). Finding that 

Lehmann failed to comply, the court denied Lehmann’s special 

appearance motion.

Lehmann appealed the county court’s denial of her “Motion 

of Special Appearance” to the district court. In its order 

filed on November 13, 2014, the district court affirmed the 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

decision of the county court, finding that the county court’s 

decision was correct in all respects.

Lehmann now appeals to this court.

ASSIGNMENTS OF ERROR

Lehmann assigns that the district court erred in affirming the decision of the county court denying her special 

appearance.

Capital One, on cross-appeal, assigns that its due process 

rights would be violated if the default judgment is vacated as 

requested by Lehmann.

STANDARD OF REVIEW

[1,2] The district court and higher appellate courts generally 

review appeals from the county court for errors appearing on 

the record. Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 

835 N.W.2d 62 (2013). When reviewing a judgment for errors 

appearing on the record, the inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable. Id.

[3] However, in instances when an appellate court is required 

to review cases for error appearing on the record, questions of 

law are nonetheless reviewed de novo on the record. Id.

ANALYSIS

Lehmann assigns and argues that the district court erred in 

affirming the decision of the county court denying her special 

appearance. In her “Motion of Special Appearance,” Lehmann 

claimed that the county court lacked personal jurisdiction over 

her when it entered the default judgment; in her affidavit, 

Lehmann averred that the certified mail with the complaint 

was signed for by her estranged husband who did not inform 

her of the lawsuit.

[4-6] First, we point out that “special appearances” have 

been abolished in Nebraska. Pursuant to Neb. Rev. Stat. 

§ 25-801.01(2)(c) (Reissue 2008), for all civil actions filed 

on or after January 1, 2003, “special appearances shall not 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

be used.” However, “[a]ll pleadings shall be construed as to 

do substantial justice.” § 28-801.01(2)(d). Lehmann’s motion 

essentially claimed that the county court lacked personal jurisdiction over her at the time Capital One filed its complaint in 

November 2009 and through the entry of default judgment on 

February 10, 2010. The Nebraska Supreme Court has stated 

that a judgment entered without personal jurisdiction is void. 

Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011). A 

void judgment may be attacked at any time in any proceeding. Id. “A void judgment is in legal effect nothing. Such 

a judgment may be vacated at any time on motion for that 

purpose. A court may at any time clear its records of unauthorized and illegal entries.” Foster v. Foster, 111 Neb. 414, 

417, 196 N.W. 702, 703 (1923). Accordingly, and in order 

to construe Lehmann’s pleading as to do substantial justice, 

we treat Lehmann’s “Motion of Special Appearance” as a 

motion to vacate an allegedly void judgment. We note that if 

Lehmann had filed her motion for “special appearance” before 

entry of a final order, we would have treated it as a motion 

to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(2) (lack 

of personal jurisdiction). However, because a judgment had 

already been entered in this case, we treat Lehmann’s motion 

for “special appearance” as a motion to vacate the allegedly 

void judgment. See, generally, Ehlers v. Grove, 147 Neb. 704, 

24 N.W.2d 866 (1946) (every court possesses inherent power 

to vacate void judgment, either during term at which it was 

rendered or after its expiration).

In Ehlers v. Grove, supra, William A. Ehlers received a 

default judgment against Harvey J. Grove in the municipal 

court of the city of Omaha in 1934. Nine years later, an execution was issued out of the district court for Douglas County 

on the judgment; the execution was levied on Grove’s property. Thereafter, Grove filed a motion in the municipal court 

to vacate and set aside the judgment for the reason that no 

service of summons or notice of pendency of the action had 

ever been had upon him. After a hearing, the municipal court 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

overruled Grove’s motion. Grove appealed to the district court. 

After a hearing, the district court decreed that there was a total 

failure of service of process or notice of the pendency of the 

action upon Grove and that the municipal court was therefore 

without jurisdiction to render a judgment against him; therefore, the 1934 judgment of the municipal court entered against 

Grove should be vacated and set aside. Ehlers appealed the 

district court’s order. The Nebraska Supreme Court affirmed 

the district court’s order.

[7-9] In its opinion, the Nebraska Supreme Court set forth 

the controlling legal principles:

“Although generally a judgment may be taken by 

default where it appears that the process has been duly 

served as by statute required, it is the fact of service 

rather than the proof of service that gives the court jurisdiction.” . . .

“If it appears that no jurisdiction was acquired over a 

defendant in the manner required by law, a judgment rendered against him is void.” . . . “[A] judgment rendered 

by a court without jurisdiction of the parties is absolutely 

void. . . .” . . .

“Every court possesses inherent power to vacate a void 

judgment, either during the term at which it was rendered or after its expiration.” . . . “‘A court may at any 

time clear its records of unauthorized and illegal entries 

therein.’ . . .” . . .

“Where a judgment is void for want of jurisdiction 

over the person of the defendant, the latter may wait until 

an effort is made to enforce the judgment, before instituting proceedings to have such judgment voided or set 

aside.” . . .

“‘In such a case the lapse of time is not a bar to the 

granting of the motion.’” . . .

“An action to set aside a judgment must be brought 

in the court which rendered the judgment, otherwise the 

records of one court would be under the control of other 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

courts of co-ordinate jurisdiction. A judgment is a matter 

of record, and can only be changed, set aside or modified 

by the court by whose authority the record is made, or by 

the direction of a court of higher jurisdiction in proceedings to review the judgment. If this were not so, chaos 

would result. . . .” . . .

“A proceeding to vacate and set aside a judgment for 

the reason that it is void must be brought in the court in 

which the judgment was rendered.” . . . Nor is it necessary that a meritorious defense be shown on the part of 

the defendant. . . .

“A void judgment may be set aside at any time upon 

motion made to the court.” . . .

“It is the settled law of this state that a false return 

of service of process may be impeached by extrinsic 

evidence, and that where the attempted service fails to 

reach the party to be served in any way, a judgment 

founded thereon is absolutely void and open to collateral 

attack.” . . .

“Proceedings taken in courts of general jurisdiction 

are presumed to be regular and in conformity with law, 

but when it is made to appear that no jurisdiction was 

acquired over the defendant, then the judgment rendered 

is void, and its invalidity may be shown in any action in 

which it may be called in question. . . .”

Ehlers v. Grove, 147 Neb. 704, 706-08, 24 N.W.2d 866, 868-69 

(1946) (citations omitted).

Pursuant to Ehlers v. Grove, supra, the county court has 

the inherent power to vacate a void judgment, either during the term at which it was rendered or after its expiration, 

upon motion to the court; lapse of time is not a bar to such 

motion. Because the county court has the inherent power to 

vacate a void judgment, the statutory procedures for vacating 

or modifying a judgment after the term of court are inapplicable. See, Neb. Rev. Stat. § 25-2001 (Reissue 2008); 

§ 25-2002; Neb. Rev. Stat. § 25-2008 (Reissue 2008); Neb. 
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CAPITAL ONE BANK v. LEHMANN

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Rev. Stat. § 25-2720.01 (Cum. Supp. 2014). We therefore turn 

to the merits of Lehmann’s motion to vacate the allegedly 

void judgment.

[10] In her motion, Lehmann claimed that the county court 

lacked personal jurisdiction over her when it entered the 

default judgment. More specifically, in her affidavit, Lehmann 

averred that the certified mail with the complaint was signed 

for by her estranged husband who did not inform her of the 

lawsuit. Proper service, or a waiver by voluntary appearance, is necessary to acquire personal jurisdiction over a 

defendant. Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 

(2011). And a judgment entered without personal jurisdiction 

is void. Id.

[11,12] An individual party may be served by certified mail. 

See Neb. Rev. Stat. § 25-508.01 (Cum. Supp. 2014). Section 

25-505.01(1)(c) governs service by certified mail and states:

(1) Unless otherwise limited by statute or by the court, 

a plaintiff may elect to have service made by any of the 

following methods:

. . . .

(c) Certified mail service which shall be made by 

(i) within ten days of issuance, sending the summons 

to the defendant by certified mail with a return receipt 

requested showing to whom and where delivered and the 

date of delivery, and (ii) filing with the court proof of 

service with the signed receipt attached[.]

The record reflects that the summons was issued on November 

30, 2009; Capital One, on December 2, sent the summons by 

certified mail to Lehmann in McCook; the return receipt was 

signed by Kurt Lehmann on December 7; and the proof of that 

service was filed with the county court on December 24. The 

Nebraska Supreme Court has stated:

Unlike many state statutes that permit certified mail 

service, § 25-505.01 does not require service to be 

sent to the defendant’s residence or restrict delivery to 

the addressee. But due process requires notice to be 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

reasonably calculated to apprise interested parties of the 

pendency of the action and to afford them the opportunity to present their objections.

Doe v. Board of Regents, 280 Neb. 492, 508, 788 N.W.2d 264, 

280 (2010). Capital One complied with all of the requirements 

of § 25-505.01. The question now is whether the certified mail 

service was reasonably calculated to apprise Lehmann of the 

pendency of the action.

In the instant case, Capital One’s complaint and praecipe 

for summons were filed on November 30, 2009. The praecipe for summons requested the clerk of the Red Willow 

County Court to issue summons for service via certified 

mail to Lehmann at her “place of residence” at an address in 

McCook. The record reflects that the summons was issued 

on November 30. On December 2, Capital One sent the 

summons by certified mail to Lehmann in McCook. In her 

affidavit, Lehmann states that she was living in McCook 

until September 30, when she moved to Oklahoma; this was 

2 months before Capital One filed its complaint. The record 

does not demonstrate that Lehmann gave Capital One, with 

whom she had a credit card account, her forwarding address, 

or even made Capital One aware that she was moving. 

Lehmann also claims that she did not receive the summons 

because of her “separation” from her husband at the time the 

complaint and summons were served; however, it is unclear 

how Lehmann’s temporary marital or living status affects 

Capital One’s reasonable reliance on, presumably, an address 

provided to them by Lehmann for the purpose of her maintaining an account. Accordingly, when Capital One sent the 

summons via certified mail on December 2, it sent the summons to Lehmann’s place of residence as known to Capital 

One; and on December 7, the return receipt was signed by 

Kurt Lehmann, Lehmann’s legal husband.

Unlike Ehlers v. Grove, 147 Neb. 704, 24 N.W.2d 866 

(1946), where there was a total failure of service of process, 

under the circumstances of this case, Lehmann’s right to due 
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CAPITAL ONE BANK v. LEHMANN

Cite as 23 Neb. App. 292

process was not offended because notice was reasonably calculated to apprise her of the pendency of the action and to 

afford her the opportunity to present her objections. See Doe 

v. Board of Regents, supra. Because there was proper service, 

the county court did have personal jurisdiction over Lehmann, 

the default judgment was not void for lack of personal jurisdiction, and Lehmann’s motion to vacate an allegedly void judgment on the basis of lack of personal jurisdiction (premised 

upon insufficient service of process) should have been denied. 

Because our analysis was of a motion to vacate a void judgment, rather than a “special appearance,” we affirm, for different reasons, the decision of the district court, which affirmed 

the decision of the county court. See Doe v. Board of Regents, 

283 Neb. 303, 809 N.W.2d 263 (2012) (appellate court will 

affirm lower court’s ruling which reaches correct result, albeit 

based on different reasoning).

Because we are not vacating the default judgment, we need 

not address Capital One’s cross-appeal. See Lang v. Howard 

County, 287 Neb. 66, 840 N.W.2d 876 (2013) (appellate court 

is not obligated to engage in analysis that is not necessary to 

adjudicate case and controversy before it).

CONCLUSION

Because the county court had personal jurisdiction over 

Lehmann, the default judgment was not void for lack of personal jurisdiction. Accordingly, we affirm the decision of the 

district court, which affirmed the decision of the county court 

denying Lehmann’s motion.

Affirme