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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. McCOLER

Cite as 297 Neb. 53

State of Nebraska, appellee, v.

Scott McColery, appel

___ N.W.2d ___

Filed June 23, 2017. No. S-16-1017.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

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

reviews questions of law decided by a lower court.

3. Jurisdiction: Appeal and Error. Before 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, irrespective of 

whether the issue is raised by the parties.

4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken.

5. Final Orders: Appeal and Error. An order affects a substantial right 

if it affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to an appellant before the order 

from which an appeal is taken.

Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Appeal dismisse

Brett McArthur for appellant.

Joe Kelly, Lancaster County Attorney, and Jason M. Cooper 

for appellee.

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

Kelch, and Funke,

Nebraska Supreme Court Online Library

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

08/25/2017 12:11 AM CDT
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. McCOLER

Cite as 297 Neb. 53

Kelch, 

NATURE OF CASE

Scott McColery posted a $5,000 appearance bond for a 

crime of which he was later convicted. After posting the 

bond, McColery assigned the bond funds to his attorney. The 

State then filed an affidavit of lien for overdue child support. 

After McColery was convicted, he filed a motion to release 

the funds to his attorney. That motion was overruled, and 

McColery appeals.

FACTS

In September 2015, McColery was charged with strangulation of his girlfriend and was appointed a public defender, 

though he later obtained a private attorney. Bond was set 

at $50,000.

On October 5, 2015, McColery posted a $5,000 appearance bond. On October 30, McColery filed an “Assignment of 

Bond” to his “attorney, Brett McArthur, for his services in the 

above entitled matter.”

On November 18, 2015, the State filed an affidavit of lien 

for child support indicating that the bond funds held by the 

court were subject to garnishment for McColery’s overdue 

child support. Attached to the affidavit, a payment history 

report reflected that as of November 2015, McColery owed 

over $18,000 in overdue child support.

In June 2016, McColery filed a motion to release the bond 

funds to his attorney. After a hearing, the motion was overruled in an order dated October 20, 2016. From that order, 

McColery appeals.

ASSIGNMENT OF ERROR

McColery’s sole assignment of error is that the district 

court erred as a matter of law in overruling his motion to 

release the bond funds to his attorney.
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. McCOLER

Cite as 297 Neb. 53

STANDARD OF REVIEW

[1,2] A jurisdictional issue that does not involve a factual 

dispute presents a question of law.1 An appellate court independently reviews questions of law decided by a lower court.2

ANALYSIS

[3] Before 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, irrespective of whether 

the issue is raised by the parties.3

[4] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final order entered by the court from 

which the appeal is taken.4 Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), an order is final for purposes of appeal if it 

affects a substantial right and (1) determines the action and 

prevents a judgment, (2) is made during a special proceeding, 

or (3) is made on summary application in an action after judgment is rendered.5

[5] The State argues that the order overruling McColery’s 

motion to release the bond funds does not affect a substantial right because it does not affect any party’s rights to the 

bond funds. We agree. An order affects a substantial right if it 

affects the subject matter of the litigation, such as diminishing 

a claim or defense that was available to an appellant before 

the order from which an appeal is taken.6

1 Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).

2 Id.

3 Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013); Carlos H. v. 

Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).

4 Big John’s Billiards v. State, supra note 1.

5 Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899 

(2016).

6 Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 

(2016).
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. McCOLER

Cite as 297 Neb. 53

Here, the subject matter of the litigation was not affected, 

because the district court’s order did not determine the rights of 

the parties with respect to the bond funds. Although the order 

indicated that the funds would not be released to McColery’s 

attorney at that time, it did not indicate that the attorney was 

not entitled to the funds. Nor did it indicate that the State was 

entitled to the funds. Because the order merely holds the funds 

in the court, it does not diminish McColery’s or his attorney’s 

claim to the funds or eliminate any objection he or his attorney might have to the State’s garnishment of the funds for 

child support.

We conclude that McColery’s appeal is premature. The 

State has not yet initiated garnishment proceedings. When it 

does, McColery’s attorney will be able to intervene pursuant 

to Neb. Rev. Stat. § 25-1030.03 (Reissue 2016), which allows 

for a third party claiming ownership to intervene in the garnishment proceedings.

Because we find that the order does not affect a substantial 

right, it is not a final, appealable order. We therefore dismiss.

CONCLUSION

There is no final order in this case. The appeal is dismissed 

as premature.

Appeal dismissed