- 658 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

McGill Restoration, Inc., a Nebraska corporation, 

appellee, v. Lion Place Condominium Association, 

an unincorporated association, appellee, 

and Michael L. Henery, interested 

party, appellant.

___ N.W.2d ___

Filed March 3, 2023. Nos. S-21-934, S-22-137.

1. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

2. Statutes. Statutory interpretation presents a question of law.

3. Jurisdiction: Appeal and Error. As a general matter, after an appeal 

has been perfected, the trial court is without jurisdiction to hear a case 

involving the same matter between the same parties.

4. Judgments: Jurisdiction. A court action taken without subject matter 

jurisdiction is void.

5. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void 

order is a nullity which cannot constitute a judgment or final order that 

confers jurisdiction on an appellate court.

6. Judgments: Jurisdiction: Appeal and Error. An appellate court has 

the power to determine it lacks jurisdiction over an appeal because the 

lower court lacked jurisdiction to enter the order; to vacate a void order; 

and, if necessary, to remand the cause with appropriate directions.

Appeals from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Judgment in No. S-21-934 reversed and 

remanded with directions. Judgment in No. S-22-137 vacated 

and dismissed.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellant.

Nebraska Supreme Court Online Library

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

03/03/2023 09:05 AM CST
- 659 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

Cody B. Nickel and Brian J. Koenig, of Koley Jessen, P.C., 

L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Marroquin, District Judge.

Papik, J.

Several years ago, McGill Restoration, Inc. (McGill), 

obtained a breach of contract judgment against Lion Place 

Condominium Association (the Association). In an effort to 

collect on that judgment, McGill and its successor-in-interest 

sought and obtained two writs of execution, both of which 

directed the county sheriff to levy execution against a condominium unit owned by one of the Association’s members, 

Michael L. Henery. The district court overruled motions to 

quash those writs filed by Henery, and he filed two appeals, 

both of which we address in this consolidated opinion. In 

Henery’s first appeal, we conclude that the district court should 

have sustained his motion to quash and therefore reverse the 

order overruling his motion to quash and remand the cause 

with directions to sustain the motion to quash. Additionally, 

we find that Henery’s first appeal divested the district court 

of jurisdiction over subsequent proceedings. Accordingly, we 

vacate the second writ of execution and dismiss his second appeal.

BACKGROUND

The Judgment.

In 2009, the Association hired McGill to perform repair 

work on a condominium building, the individual units of 

which were owned by members of the Association. After 

McGill completed its work, a dispute arose between the parties. The Association was not satisfied with McGill’s work, 

while McGill claimed that the Association failed to pay McGill 

all that it was owed. The parties resorted to litigation, with 

McGill suing the Association and the Association asserting 

counterclaims against McGill. Following a bench trial, the 
- 660 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

district court ruled for McGill and dismissed the Association’s 

counterclaims. The district court entered judgment in favor of 

McGill in the amount of $25,000 plus prejudgment interest. 

We affirmed that judgment on appeal. See McGill Restoration 

v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 

251 (2021). The appeals we take up in this opinion concern 

McGill’s efforts to collect on that judgment.

First Writ of Execution.

The judgment collection efforts at issue began with a praecipe for a writ of execution McGill filed in August 2021. The 

praecipe sought a writ directing the county sheriff to levy 

execution upon “Unit 201” of the Association pursuant to Neb. 

Rev. Stat. § 76-875(a) (Reissue 2018), which provides that “a 

judgment for money against [a condominium] association . . . 

is a lien in favor of the judgment lienholder against all of the 

units in the condominium.” The writ of execution issued.

Henery filed a motion to quash the writ of execution. In his 

motion, Henery contended that the writ of execution should 

be quashed for several reasons. Among his arguments was 

a contention that McGill could not levy execution against 

Unit 201, because the judgment was entered against the 

Association, but he owned the unit. He acknowledged that 

under § 76-875(a), McGill had a lien against each of the units 

of the Association, but he asserted that if McGill wished to 

enforce that lien, it needed to initiate foreclosure proceedings 

rather than pursue execution. At a hearing on the motion to 

quash, Henery offered an affidavit in which he asserted that 

he owned Unit 201.

The district court overruled McGill’s motion to quash. In 

November 2021, Henery timely appealed the overruling of 

his motion to quash, and that appeal was docketed as case 

No. S-21-934.

Second Writ of Execution.

In December 2021, McGill filed another praecipe for a 

writ of execution. In that praecipe, McGill sought a writ 
- 661 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

of execution directing the county sheriff to levy execution 

against not just Unit 201, but also several other condominium 

units owned by members of the Association. The praecipe 

again sought the writ of execution pursuant to § 76-875(a).

After the issuance of the writ of execution, McGill assigned 

its right to the judgment against the Association to another 

entity. For ease of discussion, however, we will refer to McGill 

and its successor-in-interest collectively as McGill.

Henery again moved to quash the writ of execution, and the 

district court again overruled his motion. Henery appealed the 

overruling of his motion to quash, and that appeal was docketed as case No. S-22-137.

ASSIGNMENTS OF ERROR

Henery assigns and argues that, for a number of reasons, 

the district court erred by overruling his motions to quash. 

To resolve these appeals, we need mention only one of those 

assignments of error, which we rephrase slightly: that the district court erred by failing to quash a writ of execution ordering 

the sheriff to levy execution against property not owned by the 

judgment debtor.

STANDARD OF REVIEW

[1] An appellate court independently reviews questions of 

law decided by a lower court. Lassalle v. State, 307 Neb. 221, 

948 N.W.2d 725 (2020).

[2] Statutory interpretation presents a question of law. State 

v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).

ANALYSIS

Henery’s First Appeal.

We begin our analysis with Henery’s first appeal, which 

challenges the district court’s overruling of his first motion to 

quash. We have appellate jurisdiction of that order, because it 

is an order that affects a substantial right made on summary 

application in an action after a judgment is rendered. See 
- 662 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 

1, 938 N.W.2d 329 (2020). See, also, Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2022).

As for the merits of this appeal, Henery argues, as noted 

above, that his motion to quash should have been granted 

because the writ of execution at issue authorized the county 

sheriff to levy execution on Unit 201. Henery contends that 

execution can be levied only on property that the judgment 

debtor owns, that he owns Unit 201, and that he is not the 

judgment debtor.

We agree with Henery that, with the exception of a circumstance not present here, Nebraska law does not authorize a 

court to order a sheriff to levy a writ of execution on property 

in which the judgment debtor does not hold an interest. As we 

will explain, this principle is established in both the statutes 

governing execution and our precedent.

Beginning with the execution statutes, Neb. Rev. Stat. 

§ 25-1502 (Reissue 2016) provides, “Executions are of two 

kinds: (1) Against the property of the judgment debtor, and (2) 

for delivery of the possession of real property with damages 

for withholding the same and costs.” No mention is made of 

execution against property owned by persons other than the 

judgment debtor.

In addition, Neb. Rev. Stat. § 25-1516(1) (Reissue 2016) 

discusses writs of execution and provides that a judgment creditor can obtain a writ of execution to levy on only the judgment 

debtor’s personal or real property interests:

The writ of execution against the property of the debtor 

issuing from any court of record of this state shall command the officer to whom it is directed that of the goods 

and chattels of the debtor he or she cause to be made the 

money specified in the writ, and for want of goods and 

chattels he or she cause the same to be made of the lands 

and tenements of the debtor.

(Emphasis supplied.)
- 663 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

Consistent with § 25-1516(1), Neb. Rev. Stat. § 25-1518 

(Reissue 2016) directs an officer receiving a writ of execution to execute against either the judgment debtor’s personal property or, failing that, the judgment debtor’s available 

real property:

The officer to whom a writ of execution is delivered 

shall proceed immediately to levy the same upon the 

goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall endorse on the writ of 

execution no goods, and forthwith levy the writ of execution upon the lands and tenements of the debtor, which 

may be liable to satisfy the judgment.

(Emphasis supplied.)

We relied on these statutes in Fox v. Whitbeck, 286 Neb. 

134, 835 N.W.2d 638 (2013), to hold that generally, a court 

lacks the authority to order the sheriff to levy execution on 

property in which the judgment debtor does not hold an interest. In that case, a father failed to pay court-ordered child support and therefore a statutory lien attached to the father’s real 

property. The mother then sought an execution sale of property 

the father had previously owned but that had since been transferred to a third party. The third party unsuccessfully objected 

to confirmation of the execution sale. On appeal, however, we 

explained that while the mother was correct that a statutory 

lien attached to the father’s property and that the third-party 

purchaser took the property subject to that lien, execution 

was available only if the mother showed that the father “still 

had an interest in the property or that he had fraudulently 

transferred it.” Id. at 140, 835 N.W.2d at 643. Because the 

father no longer had an interest in the property and there was 

no allegation of a fraudulent transfer, we reversed the district 

court’s order and remanded the cause with directions to vacate 

its order confirming the execution sale.

McGill makes no argument in this case that judgment 

was entered against Henery personally or that the Association 

holds an interest in Unit 201. Neither is there any suggestion 
- 664 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

of a fraudulent transfer. Instead, McGill’s argument that the 

district court could order an execution sale of Unit 201 notwithstanding Henery’s ownership thereof is premised entirely 

on § 76-875(a). Relevant here, that statute provides that a 

judgment for money against a condominium association “is 

not a lien on the common elements, but is a lien in favor of 

the judgment lienholder against all of the units in the condominium at the time the judgment was entered.” § 76-875(a). 

This language, McGill contends, extends a judgment lien 

against a condominium association so that it applies to each 

of the individual units of the association, and thus the statute 

allows a judgment creditor to properly execute on those individual units.

McGill’s argument requires that we interpret § 76-875(a). In 

doing so, our focus is, as always, identifying the plain and ordinary meaning of the statutory language, understood in context, 

and then giving effect to that meaning. See In re Guardianship 

of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).

We do not read the text of § 76-875(a) to provide that a 

party who obtains a judgment for money against a condominium association is entitled to execute against any of the 

units in the condominium. There is no language in that statute 

providing that execution may be levied against individual units 

nor is there language providing that the owners of individual 

units are to be treated as the judgment debtor for execution 

purposes. While § 76-875(a) certainly provides that a judgment 

against a condominium association will result in a lien against 

each of its units, our decision in Fox, supra, makes clear that 

the fact that a statutory lien attaches to property does not 

mean that the judgment creditor is entitled to execute against 

that property.

Because we understand § 76-875(a) to result in nothing 

beyond a lien against the individual units and the Association 

held no interest in Unit 201, it follows that McGill was not 

entitled to execute against Unit 201. As we have discussed, the 

execution statutes permit a court to order a sheriff to levy a 
- 665 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

writ of execution on property only if the judgment debtor has 

an interest in the property or fraudulently transferred it. We 

could find that McGill was entitled to execute against the unit 

owned by Henery only by reading additional meaning into the 

execution statutes or § 76-875(a). That is not, however, how 

we interpret statutes. See, e.g., Parks v. Hy-Vee, 307 Neb. 927, 

951 N.W.2d 504 (2020).

Because we find that the district court was not authorized to 

order execution on Unit 201 as McGill requested, we reverse 

the order overruling the motion to quash and remand the cause 

with directions for the district court to sustain the motion 

to quash.

Henery’s Second Appeal.

Henery’s second appeal challenges the district court’s overruling of his motion to quash the writ of execution McGill 

requested in December 2021. Because this writ of execution 

was requested after Henery filed his first appeal in November 

2021, it presents a jurisdictional issue that we must confront 

before considering the merits of Henery’s appeal. See Keef 

v. State, 262 Neb. 622, 626, 634 N.W.2d 751, 756 (2001) 

(“[b]efore reaching the legal issues presented for review, it is 

the duty of an appellate court to determine whether it has jurisdiction over the matter before it”).

[3] As a general matter, after an appeal has been perfected, 

the trial court is without jurisdiction to hear a case involving the same matter between the same parties. McLaughlin 

v. Hellbusch, 251 Neb. 389, 557 N.W.2d 657 (1997). Here, 

Henery perfected his appeal of the district court’s order overruling his first motion to quash in November 2021. We must 

therefore determine if the district court was divested of subject 

matter jurisdiction during the pendency of that appeal.

While the filing of an appeal generally divests a lower 

court of subject matter jurisdiction during the pendency of an 

appeal, an appeal will not always preclude a court from enforcing a judgment. When a party has obtained a judgment and 
- 666 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

a supersedeas bond has not been filed, the court retains jurisdiction to enforce the terms of the judgment even if an appeal 

has been filed. See, e.g., Kula v. Kula, 180 Neb. 893, 146 

N.W.2d 384 (1966); Kricsfeld v. Kricsfeld, 8 Neb. App. 1, 588 

N.W.2d 210 (1999).

In this case, however, McGill did not ask the district court 

to enforce the terms of a nonsuperseded judgment while the 

merits of that judgment were being challenged on appeal. 

Instead, McGill sought and obtained the issuance of a writ of 

execution that ordered the sheriff to levy execution against 

Unit 201 while an appeal was pending in which Henery sought 

to challenge the district court’s earlier overruling of a motion 

to quash a writ of execution that did the same. The proceedings 

following Henery’s first appeal thus fall within the general rule 

that during the pendency of an appeal, the trial court is without 

jurisdiction to hear a case involving the same matter between 

the same parties. The district court lacked subject matter jurisdiction of all proceedings concerning the writ of execution 

McGill requested in December 2021.

[4,5] Because the district court lacked jurisdiction of 

proceedings concerning the writ of execution requested in 

December 2021, it follows that we too lack jurisdiction of 

Henery’s second appeal. A court action taken without subject 

matter jurisdiction is void. In re Interest of Trey H., 281 Neb. 

760, 798 N.W.2d 607 (2011). And a void order is a nullity 

which cannot constitute a judgment or final order that confers 

jurisdiction on an appellate court. Id.

[6] While we lack jurisdiction to address the merits of a 

void order, that does not mean we must allow void orders to 

stand. An appellate court has the power to determine it lacks 

jurisdiction over an appeal because the lower court lacked 

jurisdiction to enter the order; to vacate a void order; and, if 

necessary, to remand the cause with appropriate directions. 

Id. Because all proceedings concerning the writ of execution 

McGill requested in December 2021 were void, we vacate 
- 667 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

MCGILL RESTORATION V. LION PLACE CONDO. ASS

Cite as 313 Neb. 658

that writ of execution and dismiss Henery’s second appeal for 

lack of jurisdiction.

CONCLUSION

The district court lacked authority to order the sheriff to 

levy execution on Unit 201. Accordingly, we reverse the district court’s order overruling Henery’s motion to quash in case 

No. S-21-934 and remand the cause with directions to sustain 

Henery’s motion to quash. We find that the district court lacked 

jurisdiction over proceedings concerning the writ of execution 

requested in December 2021 and therefore vacate that writ of 

execution and dismiss the appeal in case No. S-22-137.

Judgment in No. S-21-934 reversed

and remanded with directions.

Judgment in No. S-22-137 vacated

and dismissed.

Miller-Lerman, J., not participating.