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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

EVERT v. SRB

Cite as 308 Neb. 895

Lewis H. Evert and Trudy N. Evert, 

appellees, v. Joseph E. Srb and 

Marilyn E. Srb, appellants.

___ N.W.2d ___

Filed April 9, 2021. No. S-20-385.

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

factual dispute presents a question of law.

2. 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 appeal.

3. Judgments: Jurisdiction: Final Orders: Appeal and Error. Where the 

county court enters neither a judgment nor final order, the district court 

sitting as an appellate court is without jurisdiction.

4. Final Orders: Appeal and Error. When no further action of the court 

is required to dispose of the cause pending, it is final; when the cause is 

retained for further action, it is interlocutory and nonappealable.

5. Judgments: Final Orders: Words and Phrases. A “judgment” is a 

court’s final consideration and determination of the respective rights and 

obligations of the parties to an action as those rights and obligations 

presently exist.

6. Judgments. If a judgment looks to the future in an attempt to judge the 

unknown, it is a conditional judgment.

7. Judgments: Final Orders. A conditional judgment is wholly void 

because it does not perform in praesenti and leaves to speculation and 

conjecture what its final effect may be.

8. Judgments: Appeal and Error. Conditional judgments are not 

appealable.

9. Judgments: Jurisdiction: Appeal and Error. Orders which specify 

that a trial court will or will not exercise its jurisdiction based on 

future action or inaction by a party are conditional and therefore 

not appealable.

Nebraska Supreme Court Online Library

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

06/18/2021 01:10 AM CDT
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EVERT v. SRB

Cite as 308 Neb. 895

10. Judgments: Final Orders: Appeal and Error. Conditional orders do 

not automatically become appealable on the occurrence of the specified 

conditions, but they can operate if other conditions have been met, at 

which time the court may make a final order.

11. Judgments. A conditional order is not a judgment.

12. Judgments: Final Orders. Conditional orders that do not perform in 

praesenti have no force and effect as a final order or judgment from 

which an appeal can be taken.

13. Judgments: Boundaries: Contribution. The purpose of the boundary 

fence contribution statute, Neb. Rev. Stat. § 34-112.02 (Cum. Supp. 

2020), is for a landowner to obtain an order or judgment that determines 

the rights of the parties.

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

the power to determine whether 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.

Appeal from the District Court for Lincoln County, Michael 

E. Piccolo, Judge, on appeal thereto from the County Court 

for Lincoln County, Kent D. Turnbull, Judge. Judgment of 

District Court reversed and remanded with directions.

Brian T. McKernan, of McGrath, North, Mullin & Kratz, 

P.C., L.L.O., for appellants.

Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for 

appellees.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

This appeal concerns a division fence dispute between 

Joseph E. Srb and Marilyn E. Srb, the appellants, and Lewis 

H. Evert and Trudy N. Evert, the appellees, who own adjacent 

properties on which cattle graze. The Everts filed a fence dispute complaint in the county court for Lincoln County, seeking 

contribution pursuant to Neb. Rev. Stat. § 34-112.02 (Cum. 

Supp. 2020), in connection with the anticipated construction 
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308 Nebraska Reports

EVERT v. SRB

Cite as 308 Neb. 895

of a fence to span a portion of the boundary between the parties’ property. Following a trial, the county court ordered the 

Srbs to perform or monetarily contribute to the construction of 

a division fence between the adjoining properties, depending 

on several actions to be taken by the parties. The Srbs appealed 

to the district court, which affirmed the findings of the county 

court, but remanded the case for further proceedings on the 

issue of contribution. The Srbs appeal from the order of the 

district court. Because we conclude that the county court order 

was a conditional order from which no appeal could be taken, 

the district court did not acquire jurisdiction and, in turn, we 

lack jurisdiction to consider the merits. We reverse the order 

of the district court and remand the cause with directions to 

vacate its order and dismiss its appeal.

STATEMENT OF FACTS

The Everts own a section of agricultural land situated west 

of and adjacent to another section of agricultural land owned 

by the Srbs in Lincoln County, Nebraska. The parties graze 

cattle on their respective properties and have a reciprocal 

easement that allows both parties access to the other property 

to repair existing fence. Although a fence spans much of the 

boundary line, there is a portion of the boundary that is presently unfenced. The Everts’ amended fence dispute complaint 

requested the Srbs to construct half of a boundary fence for this 

portion or to contribute to its construction.

The county court held a trial on April 18, 2019. The parties 

established that the unfenced portion of the boundary included 

a canyon floor and canyon bluffs, but that despite the rugged 

terrain, cattle had been passing between the parties’ properties. The Srbs claimed that the rough terrain would be “nearly 

impossible” to fence, although the Everts claimed that there 

had been a functioning fence or wire barrier at one time that 

effectively prevented the cattle from passing.

The Srbs asserted that the Everts’ claim should be barred by 

claim preclusion, issue preclusion, and other various affirmative defenses. These affirmative defenses generally centered 
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308 Nebraska Reports

EVERT v. SRB

Cite as 308 Neb. 895

on a 2006 “boundary dispute” suit regarding the parties’ 

properties, which was settled and subsequently dismissed 

with prejudice. At that time, the parties entered into reciprocal easements providing all parties the right to enter onto 

the other parties’ property to install, maintain, and repair the 

common fence. The county court excluded evidence of the 

prior dispute because it lacked relevance in the current fence 

dispute case.

In its June 14, 2019, written order, the county court found 

that the Everts satisfied the procedural requirements of 

§ 34-112.02 and found it “creditable” that “a fence is needed to 

keep cattle from crossing back and forth between the properties.” The county court determined that the Everts were entitled 

to a ruling requiring either fence building performance or contribution by the Srbs, depending on a number of factors yet to 

be decided.

The order directed the Srbs to “state in writing their willingness or non-willingness to perform by building their equitable 

portion of the fence” within 10 days. If the Srbs responded that 

they were unwilling to build a fence or did not respond, then 

the Everts were granted permission to enter upon the Srbs’ 

property, remove brush and trees, construct the fence, and 

return with an itemized statement concerning costs of materials 

and labor within 30 days after work is completed. The court 

found that the cost to the Srbs would be “subject to change 

depending on the difficulty of the task at hand” and gave the 

Srbs an opportunity to have a hearing within 10 days from 

receipt of the Everts’ itemized statement to contest their equitable contribution. Although the county court found that a boundary fence should conform to certain statutory specifications as 

listed in Neb. Rev. Stat. §§ 34-115 and 34-116 (Reissue 2016), 

it also submitted that due to the nature of the terrain, the parties 

could reach an agreement to vary from those requirements and 

save costs to all parties.

The Srbs appealed to the district court. The district court 

affirmed the findings of the county court, but remanded the 

case to the county court for further determination of the 
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EVERT v. SRB

Cite as 308 Neb. 895

amount of contribution. The district court found that the county 

court was statutorily authorized to enter only a judgment of 

contribution or money damages and that it had overreached by 

including various equitable provisions in its order.

The Srbs appeal.

ASSIGNMENTS OF ERROR

The Srbs generally claim that the district court erred by 

affirming the findings in the order of the county court and the 

determination of the county court to the effect that the Everts 

were entitled to a favorable ruling.

STANDARDS OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law. In re Estate of Abbott-Ochsner, 

299 Neb. 596, 910 N.W.2d 504 (2018).

ANALYSIS

[2] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the appeal. Id. As we explain below, because 

the order of the county court was not a judgment or final order, 

the district court and, consequently, this court are without jurisdiction in this appeal.

[3] Neb. Rev. Stat. § 25-2733 (Reissue 2016) empowers 

the district court to review certain appeals from a “judgment 

or final order” of the county court. Where the county court 

enters neither a judgment nor final order, the district court sitting as an appellate court is without jurisdiction. See Village 

of Orleans v. Dietz, 248 Neb. 806, 539 N.W.2d 440 (1995) 

(determining that county court ruling not judgment; therefore, 

district court lacked jurisdiction).

[4-8] As a general matter, we have stated that when no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, it 

is interlocutory and nonappealable. Deuth v. Ratigan, 256 Neb. 

419, 590 N.W.2d 366 (1999). With respect to judgments, we 

have stated a “judgment” is a court’s final consideration and 
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EVERT v. SRB

Cite as 308 Neb. 895

determination of the respective rights and obligations of the 

parties to an action as those rights and obligations presently 

exist. Village of Orleans v. Dietz, supra. If a judgment looks 

to the future in an attempt to judge the unknown, it is a conditional judgment. Id. We have observed that a conditional judgment is wholly void because it does not perform in praesenti 

and leaves to speculation and conjecture what its final effect 

may be. Id. Conditional judgments are not appealable. See 

Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 

811 N.W.2d 178 (2012).

[9-12] With respect to orders, we have similarly observed:

Orders which specify that a trial court will or will not 

exercise its jurisdiction based on future action or inaction 

by a party are conditional and therefore not appealable. 

Such conditional orders have no effect as a final order 

from which a party can appeal. Conditional orders do not 

automatically become appealable on the occurrence of the 

specified conditions. But they can operate if other conditions have been met, at which time the court may make a 

final order.

Stevens v. Stevens, 292 Neb. 827, 829-30, 874 N.W.2d 453, 

455 (2016). Further, a conditional order is not a judgment. 

Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014). We 

have made clear that “conditional orders that do not perform in 

praesenti have no force and effect as a final order or judgment 

from which an appeal can be taken.” Custom Fabricators v. 

Lenarduzzi, 259 Neb. 453, 460, 610 N.W.2d 391, 397 (2000) 

(emphasis in original). In sum, conditional judgments and conditional orders are not appealable. In the instant case, we are 

presented with a conditional order which, applying the foregoing principles, was not appealable to the district court.

The Srbs contend that the county court’s June 14, 2019, 

order “disposed of the entire claim [and] required no further 

action to be taken by the Court.” Brief for appellants at 1. 

We do not agree. The county court order was conditioned on 

the future action and inaction of the parties; it did not make a 
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EVERT v. SRB

Cite as 308 Neb. 895

final determination of the rights and obligations of the parties. 

It was a conditional order and not appealable.

In the June 14, 2019, order, the county court determined 

that the Everts had met the procedural requirements attendant 

to fence disputes under § 34-112.02 and were entitled to a 

ruling requiring contribution by the Srbs. The order provided 

as follows:

Defendants are given 10 days from the date of this Order 

to state in writing their willingness or non-willingness to 

perform by building their equitable portion of the fence. 

Failure to file a response with the Court within 10 days 

shall operate as a refusal by the Defendants to agree to 

perform by building their equitable portion of the division fence.

If the Defendants fail to respond or do respond and 

indicate their refusal to perform by building their equitable portion of the division fence, then pursuant to Neb. 

Rev. Stat. § 34-112.01 (2019), the Court grants permission for the Plaintiffs to enter upon the Defendants’ 

property (Section 19) to construct a division fence along 

the fence line or boundary line between Section 24 and 

Section 19. Entry is allowed only to the extent necessary 

to remove obstacles such as brush and trees in order to 

construct a fence as defined by law.

The Court finds that the actually [sic] cost for the construction of the division fence as defined by Neb. Rev. 

Stat. §34-115 and §34-116 is subject to change depending on the difficulty of the task at hand. Therefore the 

Court, limits the Defendants’ monetary contribution to an 

equitable portion, meaning one-half the cost of materials 

and labor including the costs associated with removing 

trees, brush and obstacles. The Plaintiffs shall submit an 

itemized statement concerning costs of removing trees, 

brush and obstacles along with the costs for materials 

and labor within thirty days after the work is completed. 

The Defendants shall be supplied a copy of the itemized 
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EVERT v. SRB

Cite as 308 Neb. 895

statement by the Plaintiffs and shall be given an opportunity for hearing, at their request (within 10 days from 

receipt of the statement) to contest the amount claimed as 

their equitable portion.

[13] Examining the boundary fence statutes vesting the 

county court with jurisdiction, it is clear that the purpose of 

the contribution statute is for a landowner to obtain an order 

or judgment that determines the rights of the parties. Neb. Rev. 

Stat. § 34-102 (Reissue 2016) provides in part:

(1) When there are two or more adjoining landowners, 

each of them shall construct and maintain a just proportion of the division fence between them. Just proportion 

means an equitable allocation of the portion of the fenceline to be physically constructed and maintained by each 

landowner or, in lieu thereof, an equitable contribution to 

the costs to construct and maintain the division fence to 

be made by either landowner.

Section 34-112.02 provides the process for a landowner to 

obtain a judgment for contribution for a just proportion of the 

division fence between the parties when the landowners cannot agree. The county court order from which the appeal to 

the district court was taken had not determined the parties’ 

contribution, which is the very objective of an action under 

§ 34-112.02. The outcome of the case is conditioned on actions 

yet to be taken as described in the June 14, 2019, order. The 

order under review by the district court was of no force and 

effect as a final order from which an appeal can be taken. 

Custom Fabricators v. Lenarduzzi, 259 Neb. 453, 610 N.W.2d 

391 (2000).

[14] Because the district court lacked jurisdiction to consider the Srbs’ appeal, we, in turn, lack jurisdiction to consider 

the district court’s review. See Omaha Expo. & Racing v. 

Nebraska State Racing Comm., 307 Neb. 172, 949 N.W.2d 183 

(2020). An appellate court has the power to determine whether 

it lacks jurisdiction over an appeal because the lower court 

lacked jurisdiction to enter the order; to vacate a void order; 
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EVERT v. SRB

Cite as 308 Neb. 895

and, if necessary, to remand the cause with appropriate directions. Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350 

(2019). In the instant case, because the district court did not 

acquire jurisdiction, its order must be vacated.

CONCLUSION

The county court’s order in this fence dispute brought under 

Neb. Rev. Stat. § 34-101 et seq. (Reissue 2016 & Cum. Supp. 

2020) was a conditional order and as such not appealable to 

the district court. Consequently, the district court sitting as 

an appellate court lacked jurisdiction, as do we. We reverse 

the order of the district court and remand the cause with 

directions to vacate its order and dismiss the appeal for lack 

of jurisdiction.

Reversed and remanded with directions.