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SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.

Cite as 300 Neb. 289

Shawn E. on behalf of Grac

a minor child, appellant, v. Dia

and State of Nebraska, appellee

___ N.W.2d ___

Filed June 22, 2018. No. S-17-074.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Moot Question: Appeal and Error. An appellate court may choose to 

review an otherwise moot case under the public interest exception if it 

involves a matter affecting the public interest or when other rights or 

liabilities may be affected by its determination.

3. Moot Question: Words and Phrases. The public interest exception 

requires a consideration of the public or private nature of the question 

presented, the desirability of an authoritative adjudication for future 

guidance of public officials, and the likelihood of future recurrence of 

the same or a similar problem.

4. Garnishment. Garnishment in aid of execution is a provisional remedy 

created by statute directing the procedure to obtain such relief.

5. Final Orders: Words and Phrases. A substantial right is an essential 

legal right.

6. Final Orders: Appeal and Error. A substantial right is affected if an 

order 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.

7. Final Orders: Dismissal and Nonsuit: Appeal and Error. Without 

a final order, an appellate court lacks jurisdiction and must dismiss 

the appeal.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann, Judge, and In

Nebraska Supreme Court Online Library

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

09/14/2018 08:10 AM CDT
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Judge, Retired, on appeal thereto from the District Court for 

Buffalo County, John H. Marsh, Judge. Judgment of Court 

Appeals affirmed.

Shawn E., pro se.

Shawn R. Eatherton, Buffalo County Attorney, and Kari R. 

Fisk for appellee State of Nebraska.

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

Papik, JJ., and Hall, District Judg

Cassel, J.

INTRODUCTION

As a matter of first impression, we consider whether a judgment debtor who, using the procedure specified in Neb. Rev. 

Stat. § 25-1011 (Reissue 2016), unsuccessfully objects to a 

garnishment may immediately appeal. Because we conclude 

that a substantial right is not affected until judgment is entered 

in the garnishment, an appeal must wait. The Nebraska Court 

of Appeals correctly dismissed Shawn E.’s premature appeal 

for lack of jurisdiction, and we affirm its decision.

BACKGROUND

The State of Nebraska initiated a garnishment action against 

Shawn, an inmate residing at the Nebraska State Penitentiary, 

alleging that he owed $3,097.67 in past due child support and 

$2,499.54 in medical support for a total of $5,597.21. It caused 

a summons and order of garnishment to be sent to “the garnishee, [the] Nebraska Department of Corrections,” to recover 

money in its possession belonging to Shawn.

Shawn requested a hearing, asserting that he did not owe 

the amount of the judgment. A hearing was held, during which 

Shawn appeared telephonically. The State offered certified 

copies of Shawn’s Department of Health and Human Services 

child support payment history and medical support payment 

history, which were received into evidence. The court took 
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SHAWN E. ON BEHALF OF GRACE E. v. DIANE S.

Cite as 300 Neb. 289

judicial notice of a journal entry establishing Shawn’s child 

support obligation in the amount of $379 per month and cash 

medical support obligation in the amount of $62 per month. It 

also took judicial notice of a second journal entry suspending 

the child support portion of the prior order.

At the hearing, Shawn argued that he did not owe the 

amount alleged and that there was no way he could make the 

payments the State claimed he owed. He further alleged that 

the Department of Health and Human Services “is charging 

me $62 . . . per month . . . for services that my daughter is 

not receiving.”

The court noted that the cash medical support obligation 

was never suspended and that the child support arrearage was 

for arrearage accumulated prior to the suspension of the child 

support. It therefore found that Shawn’s arguments were not a 

defense to the fact that the debt was owed or that garnishment 

was appropriate.

Shawn requested a continuance so he could call on witnesses 

to determine that the “$62 is also suspended” and that the 

child’s mother does not receive services from the Department 

of Health and Human Services. The district court denied this 

request and overruled Shawn’s objection to the garnishment. In 

its journal entry and order overruling the objection, it ordered 

that “the garnishment may proceed.”

Shawn appealed and assigned that the district court erred in 

(1) ordering the garnishment “to proceed on the finding that 

[he] owes $5,597.27” and (2) disregarding his verbal motion 

for a continuance.

But, before considering these arguments, the Court of 

Appeals addressed whether it had jurisdiction in a memorandum opinion filed January 24, 2018. It concluded that because 

the order did not determine that the State was entitled to funds 

held by the garnishee and did not order any execution of a garnishment, the order did not affect Shawn’s substantial rights. 

Furthermore, it noted that Shawn’s rights could be effectively 

vindicated in an appeal from the final judgment. Finding no 
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final order, the Court of Appeals determined that it lacked 

jurisdiction and dismissed the appeal.

We granted Shawn’s petition for further review.

ASSIGNMENT OF ERROR

Shawn asserts that he appealed from a final order, because 

the order that the garnishment “may proceed” affected a substantial right and was made in a special proceeding.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law.1

ANALYSIS

At oral argument, the State confessed that it was abandoning 

the garnishment in light of the garnishee’s answers to interrogatories showing only $0.07 belonging to Shawn. Thus, the 

State suggests that the appeal may be moot.

[2,3] However, an appellate court may choose to review an 

otherwise moot case under the public interest exception if it 

involves a matter affecting the public interest or when other 

rights or liabilities may be affected by its determination.2 The 

public interest exception requires a consideration of the public 

or private nature of the question presented, the desirability 

of an authoritative adjudication for future guidance of public 

officials, and the likelihood of future recurrence of the same 

or a similar problem.3 Because the finality of orders overruling judgment debtors’ objections under § 25-1011 is a public 

matter deserving authoritative adjudication for future guidance of public officials and is likely to recur, we choose to 

review the matter.

Shawn argues that the district court’s order was a final 

order, because it affected a substantial right and determined the 

1 Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014).

2 Nesbitt v. Frakes, ante p. 1, ___ N.W.2d ___ (2018).

3 Id.
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outcome in a special proceeding. While it is well established 

that garnishment in aid of execution is a legal statutory remedy, 

we have not always been consistent in describing its nature.4

At various times we have described garnishment as a legal 

action5 or as a special proceeding,6 and we have even alluded 

to a challenge to a garnishment as a summary application in 

an action after judgment is rendered.7 But, we need not resolve 

this tangle of garnishment precedents. Clearly, there was no 

judgment in the garnishment proceeding. And all three types 

of final orders require that the order affect a substantial right. 

Here, no substantial right was affected, which is dispositive.

It is first helpful to summarize the procedure for a garnishment in aid of execution. Because this appeal does not involve 

the garnishment of wages, we omit those statutes which impose 

additional requirements for the garnishment of wages.

Garnishment Proce

[4] Garnishment in aid of execution is a provisional remedy 

created by statute directing the procedure to obtain such relief.8

A judgment creditor seeking a garnishment in aid of execution begins by filing an affidavit and praecipe for summons, 

alleging that the garnishee has property of or is indebted to the 

judgment debtor.9 The court then issues a summons and interrogatories to be completed by the garnishee.10

4 See, e.g., ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014) 

(legal proceeding); NC+ Hybrids v. Growers Seed Assn., 219 Neb. 296, 

363 N.W.2d 362 (1985) (incident to judgment or ancillary procedure), 

disapproved on other grounds, ML Manager, supra note 4.

5 See Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998).

6 See Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 35 

N.W.2d 116 (1948).

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

906 (2016).

8 Early v. Belgrade-Hord Co., 133 Neb. 884, 277 N.W. 596 (1938).

9 Neb. Rev. Stat. § 25-1056(1) (Reissue 2016).

10 Id.
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When the summons and interrogatories are issued, § 25-1011 

provides that a judgment debtor has the right to (1) receive 

notice of garnishment action by certified mail and (2) a hearing 

if the judgment debtor (a) believes the court should not allow 

a garnishment either because the funds sought are exempt or 

because the requested amount is not owed on the judgment 

and (b) timely requests a hearing on the issue. It is clear from 

the record that Shawn followed this procedure in challenging 

the garnishment.

Although the hearing procedure of § 25-1011 became a part 

of that section in 1988,11 we have not addressed the finality of 

an order denying relief to a judgment debtor following such a 

hearing. We granted further review to do so.

The procedure for what follows an unsuccessful § 25-1011 

challenge is not specifically laid out by statute. However, 

§ 25-1056(1), which sets forth the general procedure for garnishments, provides in part, “Except when wages are involved, 

the garnishee shall hold the property of every description and 

the credits of the defendant in his or her possession or under 

his or her control at the time of the service of the summons and 

interrogatories until the further order of the court.” (Emphasis 

supplied.) This would suggest that even if the challenge is 

overruled—i.e., the court determines that the funds are not 

exempt and that the requested amount is owed on the judgment—the court must still enter a final judgment ordering the 

delivery of the judgment debtor’s property to the judgment 

creditor, in which case the judgment debtor’s entitlement to his 

or her property held by the garnishee is not affected until that 

final judgment.

Substantial Right An

[5,6] A substantial right is an essential legal right.12 A substantial right is affected if an order affects the subject matter of 

the litigation, such as diminishing a claim or defense that was 

11 See 1988 Neb. Laws, L.B. 1030, § 14.

12 See Cattle Nat. Bank & Trust Co. v. Watson, supra note 7.
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available to an appellant before the order from which an appeal 

is taken.13

In the context of garnishment proceedings, we have held 

that an order affected a substantial right where it “authorized the seizure of property or money that would otherwise 

have remained in the [appellants’] ownership and control.”14

However, the order here did not authorize the execution of a 

garnishment and did not determine that the State was entitled 

to the requested funds.

Shawn suggests that the order affected a substantial right 

by providing that the garnishment “may proceed,” “because 

it implicates all manner of means of attachment provided for 

under title IV-D of the Social Security Act.”15 However, no 

attachment was actually ordered. Consequently, Shawn’s right 

to the funds was not affected. And, although the order diminished Shawn’s defense that the amount alleged was not owed 

under the judgment, this claim can be effectively vindicated on 

appeal from the final judgment.

[7] Because the order overruling Shawn’s challenge to the 

garnishment did not affect a substantial right, it was not a 

final, appealable order. Without a final order, an appellate court 

lacks jurisdiction and must dismiss the appeal.16 The Court of 

Appeals correctly did so, and we affirm its action.

CONCLUSION

Shawn prematurely appealed from a nonfinal order. Because 

the Court of Appeals correctly determined that it lacked jurisdiction, we affirm its decision dismissing the appeal.

Affirmed

13 Id.

14 Id. at 968, 880 N.W.2d at 926.

15 Brief for appellant in support of petition for further review at 4.

16 Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).