Decisions of the Nebraska Court of Appeals

STATE v. WULF 211

Cite as 22 Neb. App. 211

objection to the scope of the State’s examination on recrossexamination. We also find any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.

Affirmed.

State of Nebraska, appellee, v. 

Tim R. Wulf, appellant.

___ N.W.2d ___

Filed July 22, 2014. No. A-13-288.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the 

admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial 

discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Evidence. Determining the relevancy of evidence is a matter entrusted to the 

discretion of the trial court, and the trial court’s decision will not be reversed on 

appeal absent an abuse of discretion.

3. Judgments: Collateral Attack. When a judgment is attacked in a manner other 

than by a proceeding in the original action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack.

4. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are 

impermissible unless the attack is grounded upon the court’s lack of jurisdiction 

over the parties or subject matter.

5. Courts. Vertical stare decisis compels lower courts to follow strictly the decisions rendered by higher courts within the same judicial system.

6. Judgments: Jurisdiction. A decree of court which is void for want of jurisdiction may be attacked in any proceeding in which any person seeks to assert a 

right under it. It may be attacked whenever it is sought to be enforced, or in any 

suit in which its validity is drawn in question.

7. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, where different state courts have concurrent original jurisdiction over the same subject matter, 

basic principles of judicial administration require that the first court to acquire 

jurisdiction should retain it to the exclusion of another court. That is, a second 

court lacks jurisdiction over the same matter involving the same parties.

8. Double Jeopardy: Evidence: New Trial: Appeal and Error. If reversible error 

exists in a criminal proceeding, an appellate court must determine whether the 

totality of the evidence admitted by the trial court was sufficient to sustain the 

conviction. If it was not, then the concepts of double jeopardy would not allow a 

remand for a new trial.
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212 22 NEBRASKA APPELLATE REPORTS

9. ____: ____: ____: ____. The Double Jeopardy Clause does not forbid a retrial so 

long as the sum of all the evidence admitted by a trial court, whether erroneously 

or not, would have been sufficient to sustain a guilty verdict.

Appeal from the District Court for Washington County: 

Daniel E. Bryan, Jr., Judge. Reversed and remanded for a 

new trial.

Steven W. Holland, of Holland Law Office, P.C., for 

appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Irwin, Riedmann, and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Tim R. Wulf was convicted in the Washington County 

District Court of theft in excess of $1,500. On appeal, he challenges the court’s decision to allow into evidence a judgment 

from the Washington County Court and an execution of the 

judgment issued by the Washington County District Court. He 

also claims he should have been allowed to introduce evidence 

to collaterally attack the judgment and execution. We find the 

district court abused its discretion in refusing to allow a collateral attack on the judgment and, therefore, reverse Wulf’s 

conviction and remand the cause for a new trial.

BACKGROUND

On January 12, 2012, Wulf was charged by information with 

theft of corn crops in violation of Neb. Rev. Stat. § 28-511 

(Reissue 2008). Ownership of the land upon which the crops 

grew has been the subject of extensive litigation, beginning in 

2002. A general overview of the various judicial proceedings 

involving the crops and the land on which they grew is set 

forth below.

Prior Proceedings.

Percy Hue was the original owner of the three parcels of 

land at issue in this litigation. Wulf was a beneficiary of Hue’s 
Decisions of the Nebraska Court of Appeals

STATE v. WULF 213

Cite as 22 Neb. App. 211

last will and testament, which was admitted to formal probate 

by the Washington County Court in July 2002.

In February 2004, the personal representative of Hue’s 

estate filed an action against Wulf and various others in the 

Washington County District Court to quiet title to the land. The 

district court determined that the personal representative of the 

estate was the fee simple title holder of the parcels of land. 

That decision was appealed to this court in case No. A-06-951. 

On October 30, 2007, we reversed, and remanded to the district 

court for further proceedings.

During the pendency of the appeal, the personal representative of the estate filed a separate action in the Washington 

County Court against Wulf, alleging that Wulf had wrongfully 

occupied the premises, despite receiving notice to leave. The 

personal representative sought restitution of the land and rents 

and profits from 2002 through 2006. After remand of the quiet 

title case to the district court, and while that case was still 

pending, the county court entered a $103,609 default judgment 

against Wulf in the restitution action. As a result of the restitution judgment, the personal representative obtained a writ 

of execution from the Washington County District Court and 

levied on the crops.

Wulf was personally served with the execution, and a sign 

was posted in front of the parcels of land indicating that the 

property had been seized; however, Wulf harvested the crops 

sometime in November 2009.

Current Proceedings.

Wulf was charged with theft in excess of $1,500 for the 

harvesting of the crops. Prior to trial, Wulf filed a motion in 

limine asking that the court prohibit the State from introducing 

the restitution judgment and execution as evidence at trial. He 

also sought to exclude any evidence that the estate owned the 

parcels of land. The State also filed a motion in limine asking 

that the court prohibit Wulf from introducing evidence at trial 

regarding ownership of the parcels of land or any contest to 

the judgment and execution. Wulf argued that the judgment 

was invalid, because the county court did not have jurisdiction 

to enter it, and that therefore, the subsequent execution was 
Decisions of the Nebraska Court of Appeals

214 22 NEBRASKA APPELLATE REPORTS

also invalid. The court denied Wulf’s motion and granted the 

State’s motion, finding that the evidence the State sought to 

prohibit was inadmissible, because it was immaterial and irrelevant to the issue in the criminal proceeding.

Wulf was ultimately convicted of theft. He now timely 

appeals to this court.

ASSIGNMENTS OF ERROR

Wulf assigns, consolidated and renumbered, that the district 

court erred in (1) admitting the restitution judgment and the 

execution into evidence and (2) excluding Wulf’s evidence to 

collaterally attack the judgment and execution.

STANDARD OF REVIEW

[1,2] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014). 

Determining the relevancy of evidence is a matter entrusted to 

the discretion of the trial court, and the trial court’s decision 

will not be reversed on appeal absent an abuse of discretion. 

See id.

ANALYSIS

Wulf argues that the district court erred in admitting the 

county court’s judgment and the district court’s execution 

into evidence because the judgment was void. He claims that 

the district court acquired jurisdiction to determine ownership and title to the parcels of land first and that therefore, 

the county court lacked subject matter jurisdiction when it 

entered the judgment against Wulf. He asserts that because 

the county court lacked jurisdiction, its judgment was void 

and inadmissible. Likewise, he claims that because the county 

court’s judgment was void, it could be collaterally attacked 

at any time, and that thus, the court erred in excluding his 

evidence at trial which challenged the validity of the county 

court’s judgment.

[3,4] Because Wulf’s arguments on all three assigned errors 

hinge on his assertion that the judgment and execution were 
Decisions of the Nebraska Court of Appeals

STATE v. WULF 215

Cite as 22 Neb. App. 211

invalid, we first address whether a civil judgment may be collaterally attacked in a criminal proceeding. When a judgment 

is attacked in a manner other than by a proceeding in the original action to have it vacated, reversed, or modified, or by a 

proceeding in equity to prevent its enforcement, the attack is a 

collateral attack. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 

(2005). Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court’s lack of 

jurisdiction over the parties or subject matter. Id.

Wulf claims that the county court lacked subject matter 

jurisdiction and that therefore, the restitution judgment was 

void. He relies on State v. Smith, supra, for the proposition 

that a judgment entered by a court which lacks subject matter jurisdiction is void and may be attacked at any time in 

any proceeding.

[5] The trial judge refused to allow the collateral attack, 

stating that the civil judgment could not be attacked “in this 

type of proceeding.” While we agree with the trial judge that 

a collateral attack of a civil judgment in a criminal case is 

unusual, we are bound by stare decisis to abide by Nebraska 

Supreme Court precedent. See State v. Hausmann, 277 Neb. 

819, 765 N.W.2d 219 (2009) (vertical stare decisis compels 

lower courts to follow strictly decisions rendered by higher 

courts within same judicial system). Therefore, given Nebraska 

precedent, we determine that Wulf should have been allowed 

to collaterally attack the county court’s restitution judgment in 

his criminal trial. See Garrett v. State, 118 Neb. 373, 224 N.W. 

860 (1929).

Garrett involved a petition in error. Robert Garrett had been 

convicted of murder in the first degree. At the criminal trial, 

Clara Garrett testified against him. Robert and Clara had been 

married, but prior to the trial, she had filed for divorce and 

a decree was filed. Robert objected to her testimony on the 

basis that he and Clara were still married at the time of trial, 

because the divorce decree was entered less than 6 months 

after he was served with the divorce summons, in violation of 

state statute. He claimed the decree was void because the court 

did not have jurisdiction to render it. The trial court overruled 

his objection.
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216 22 NEBRASKA APPELLATE REPORTS

[6] In the petition in error proceeding, the Nebraska Supreme 

Court concluded that the divorce decree was void because the 

district court was without jurisdiction to hear the case before 

the 6-month time period expired. It further stated:

A decree of court which is void for want of jurisdiction 

may be attacked in any proceeding in which any person 

seeks to assert a right under it. It may be attacked whenever it is sought to be enforced, or in any suit in which its 

validity is drawn in question.

Id. at 378, 224 N.W. at 862. As a result, the court concluded 

that the objection to Clara’s testimony should have been sustained and the testimony excluded.

[7] In the present action, Wulf asserted that the county court 

did not have jurisdiction over the restitution case, because the 

quiet title action was already pending in district court, and that 

therefore, the judgment was void. Under the doctrine of jurisdictional priority, where different state courts have concurrent 

original jurisdiction over the same subject matter, basic principles of judicial administration require that the first court to 

acquire jurisdiction should retain it to the exclusion of another 

court. That is, a second court lacks jurisdiction over the same 

matter involving the same parties. Molczyk v. Molczyk, 285 

Neb. 96, 825 N.W.2d 435 (2013).

The quiet title action was brought by the personal representative against Wulf and others in district court, seeking to quiet 

title in the estate to three parcels of land. Subsequent to the 

filing of the district court action, the personal representative 

brought suit in county court against Wulf, claiming ownership 

of the land and seeking restitution for its use. Under the doctrine of jurisdictional priority, it would appear that the district 

court had jurisdiction of the issues raised in both actions and 

that the restitution judgment was void. Under the principle set 

forth in Garrett v. State, supra, Wulf should have been allowed 

to collaterally attack the county court judgment when it was 

offered against him in the criminal proceeding.

The dissent in Garrett v. State, 118 Neb. 373, 224 N.W. 860 

(1929), argued that the divorce decree was evidence of Clara’s 

divorce in the criminal proceeding and that if there was to be 
Decisions of the Nebraska Court of Appeals

STATE v. WULF 217

Cite as 22 Neb. App. 211

an attack on the decree, it should have occurred in a direct 

appeal. The argument is nearly identical to that of the State in 

the present action, and therefore, it is rejected.

Wulf also argues that he should have been able to collaterally attack the execution that was issued by the district court. 

We do not find Garrett controlling on this issue because it 

involved judgments from two equal courts, whereas here, the 

execution was issued by the district court and the criminal 

proceedings were conducted in the county court. We decline to 

address a county court’s authority to inquire into the validity of 

a district court’s proceedings, because resolution of the issue 

is not necessary to resolve this appeal. See State v. Smith, 284 

Neb. 636, 822 N.W.2d 401 (2012).

Having decided that the trial court abused its discretion in 

prohibiting Wulf from collaterally attacking the restitution 

judgment, we must decide whether this constituted reversible 

error. The State relied upon the judgment to prove the essential elements of the crime of theft. Without Wulf’s being able 

to collaterally attack it, the jury was presented with the judgment as conclusive proof that the land in question belonged to 

the estate, that the personal representative was entitled to the 

rents and profits in the amount of $103,609, and that Wulf was 

indebted to the estate in that amount. We conclude that this 

constitutes reversible error.

[8,9] Having found reversible error, we must determine 

whether the totality of the evidence admitted by the district 

court was sufficient to sustain Wulf’s conviction. If it was not, 

then the concepts of double jeopardy would not allow a remand 

for a new trial. See State v. Borst, 281 Neb. 217, 795 N.W.2d 

262 (2011). The Double Jeopardy Clause does not forbid a 

retrial so long as the sum of all the evidence admitted by a trial 

court, whether erroneously or not, would have been sufficient 

to sustain a guilty verdict. State v. Borst, supra.

The evidence presented was sufficient to prove that the 

crops harvested by Wulf were property of another, that Wulf 

exercised control over them with the intent to benefit himself 

or another, and that the crops had a value of more than $1,500. 

The cause should therefore be remanded for a new trial.
Decisions of the Nebraska Court of Appeals

218 22 NEBRASKA APPELLATE REPORTS

CONCLUSION

For the foregoing reasons, we find the trial court abused its 

discretion in prohibiting Wulf from collaterally attacking the 

county court’s judgment. We therefore reverse the conviction 

and remand the cause for a new trial.

Reversed and remanded for a new trial.

Dwayne Sartain and Lisa Sartain, appellants and

cross-appellees, v. Wohlenhaus Appraisal Service

and Dan Spence, appellees, and Countrywide

Home Loans, a foreign corporation, 

appellee and cross-appellant.

___ N.W.2d ___

Filed July 22, 2014. No. A-13-346.

1. Dismissal and Nonsuit: Judgments: Appeal and Error. Denial of a plaintiff’s 

voluntary dismissal of claims presents a question of law, regarding which the 

appellate court reaches a conclusion independent of the lower court’s ruling.

2. Dismissal and Nonsuit. An action may be dismissed without prejudice to a 

future action by the plaintiff, before the final submission of the case to the jury 

or to the court where the trial is by the court.

3. Words and Phrases. A final submission of a case contemplates a submission on 

both the law and the facts, and it exists only when nothing remains to be done to 

render it complete.

4. Directed Verdict: Dismissal and Nonsuit. After a defendant has moved for a 

directed verdict and both counsel have completed their argument on that motion, 

a case is under final submission as contemplated in Neb. Rev. Stat. § 25-601 

(Reissue 2008), and the plaintiff no longer has an absolute right to dismiss without prejudice.

5. ____: ____. If a motion for directed verdict is made at the close of the plaintiff’s 

case, the plaintiff loses the absolute right to dismiss without prejudice until such 

time as the court overrules the motion.

6. Directed Verdict. A motion for directed verdict is a request for the court to 

decide, as a matter of law, whether there are any questions of fact for a jury 

to decide.

7. Summary Judgment. In a motion for summary judgment, the court is requested 

to determine as a matter of law that no genuine issue of material fact exists and 

that the moving party is entitled to judgment as a matter of law.

8. Dismissal and Nonsuit. A plaintiff has an absolute right to dismiss any time 

before final submission of the case, and when such right exists, the court can 

only exercise discretion in denying dismissal when it would result in the loss of 

a substantial right of the defendant.