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Charles Sargent Irrigation, Inc., doing 

Sargent Drilling, appellee, v

Martha Pohlmeier, appell

___ N.W.2d ___

Filed May 14, 2019. No. A-17-1231.

1. Motions to Vacate: Time. The decision to vacate an order at any time 

during the term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it is shown that 

the district court abused its discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when 

the trial court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

3. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.

The determination of an appropriate discovery sanction rests within the 

discretion of the trial court, and an appellate court will not disturb it 

absent an abuse of discretion.

4. Motions to Vacate: Time. In a civil case, a court has inherent power 

to vacate or modify its own judgments at any time during the term at 

which those judgments are pronounced, and such power exists entirely 

independent of any statute.

5. Courts: Time. Unless otherwise provided by order of the district 

court, a term of court begins on January 1 of a given year and ends on 

December 31 of that same year.

6. Judgments: Judicial Sales: Appeal and Error. An order overruling a 

motion to deny confirmation of a judicial sale and to set the sale aside is 

not a final or reviewable order.

7. Courts. Nebraska’s courts, through their inherent judicial power, have 

the authority to do all things necessary for the proper administration 

of justice.

8. Pretrial Procedure. The main purpose of the discovery process is to 

narrow the factual issues in controversy so that the trial is efficient 

and economical.

Nebraska Supreme Court Online Library

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

05/28/2019 09:07 AM CDT
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9. ____. The discovery process helps the litigants conduct an informed 

cross-examination and avoid tactical surprise, a circumstance which 

might lead to a result based more on legal maneuvering than on the 

merits of the case.

10. Rules of the Supreme Court: Pretrial Procedure. The court may sanction a party under Neb. Ct. R. Disc. § 6-337, despite the absence of a 

prior discovery order.

11. Courts: Evidence. A trial court’s exclusion of evidence may be sustained as an exercise of a trial court’s inherent powers.

12. Appeal and Error. An appellate court will not consider an issue that 

was not presented to or passed upon by the trial court, because a trial 

court cannot commit error in resolving an issue never presented and 

submitted to it for disposition.

Appeal from the District Court for Fillmore County: Vi

L. Johnson, Judge. Affirm

Travis Penn, of Penn Law Firm, L.L.C., for appellant.

Charles W. Campbell, of Angle, Murphy & Campbell, P.C., 

L.L.O., for appellee.

Moore, Chief Judge, and Riedmann and Bishop, 

Riedmann, J

INTRODUCTION

As a discovery sanction, the district court for Fillmore 

County entered a default judgment against Mary Martha 

Pohlmeier and in favor of Charles Sargent Irrigation, Inc., 

doing business as Sargent Drilling (Charles Sargent). The 

court included prejudgment interest in the damages awarded, 

and after Pohlmeier’s land was sold to satisfy the judgment, 

the court denied Pohlmeier’s objection to the confirmation of 

the sale. We affirm the decisions related to the default judgment but lack jurisdiction to address issues related to the confirmation of the sale.

BACKGROUND

In 2014, Pohlmeier entered into a written contract with 

Charles Sargent for the drilling of wells and associated work 
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on Pohlmeier’s property. Certain work was completed, but 

Pohlmeier failed to pay as agreed; thus, Charles Sargent commenced this action seeking to recover payment from Pohlmeier. 

In response to Charles Sargent’s amended complaint, Pohlmeier 

filed an answer and counterclaim.

In February 2016, Charles Sargent filed a motion for 

sanctions. The motion and attached affidavit alleged that on 

December 4, 2015, Charles Sargent had served interrogatories 

and requests for production of documents on Pohlmeier by 

sending them to her counsel and that Pohlmeier had requested 

additional time within which to respond. Pohlmeier’s counsel 

then moved to withdraw, and on January 11, 2016, the district court granted counsel’s motion to withdraw and allowed 

Pohlmeier until February 4 to serve her discovery responses. 

Pohlmeier never responded to the discovery requests.

The court held a hearing on the motion for sanctions, and 

neither Pohlmeier nor her counsel appeared. The court entered 

a written order on March 10, 2016, stating that notice of the 

hearing had been provided to Pohlmeier at her last known 

address. Based on Pohlmeier’s failure to respond to discovery, 

the court found that Charles Sargent was entitled to sanctions. 

The court therefore entered a default judgment in favor of 

Charles Sargent against Pohlmeier on the amended complaint 

and awarded judgment in the amount of $27,498.38 plus interest in the amount of $8,013.25.

As a result of the default judgment, a writ of execution 

was issued for Pohlmeier’s property, and the record shows 

that Pohlmeier was personally served with the writ on August 

10, 2016. A sale of the property was held on October 3, and 

the property was sold. On October 6, Charles Sargent filed a 

motion to confirm the sale in the district court. On November 

1, Pohlmeier, represented by new counsel, filed an objection 

to the confirmation of sale and a motion to vacate the default 

judgment. At a hearing on the motions, Pohlmeier’s counsel 

argued that the default judgment was not a final judgment 

because it failed to dispose of Pohlmeier’s counterclaim.
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In an order entered January 5, 2017, the district court recognized that the March 10, 2016, order was not final because 

of the outstanding counterclaim. The court therefore modified 

the March 10 order, striking the counterclaim and reiterating 

that default judgment was entered in favor of Charles Sargent. 

The court did not rule on the objection to the confirmation of 

sale or the motion to vacate at that time.

Thereafter, Pohlmeier filed a motion to alter or amend 

the January 5, 2017, order. At a hearing on that motion, 

Charles Sargent recognized that the sale could not be confirmed because the execution was issued upon a nonfinal judgment; thus, a new sale would have to take place. The court 

issued a written order on October 26 overruling the motion 

to vacate and the objection to the confirmation of sale. No 

order was entered on the motion to confirm the sale, nor did 

Charles Sargent withdraw the motion. Pohlmeier appeals from 

that order.

ASSIGNMENTS OF ERROR

Pohlmeier assigns, restated, that the district court (1) lacked 

authority to modify the March 10, 2016, judgment on January 

5, 2017; (2) erred in overruling her objection to the confirmation of sale; (3) erred in issuing sanctions improperly and 

failing to set aside those sanctions; and (4) erred in awarding 

prejudgment interest, because the claim was not liquidated.

STANDARD OF REVIEW

[1,2] The decision to vacate an order at any time during 

the term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if 

it is shown that the district court abused its discretion. In re 

Change of Name of Whilde, 298 Neb. 510, 904 N.W.2d 707 

(2017). An abuse of discretion occurs when the trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. Id.
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[3] The determination of an appropriate discovery sanction 

rests within the discretion of the trial court, and an appellate 

court will not disturb it absent an abuse of discretion. Hill v. 

Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).

ANALYSIS

Modification of Judgment.

In her first assignment of error, Pohlmeier argues that the 

district court lacked the authority to modify the March 10, 

2016, judgment on January 5, 2017, because the modification 

was made out of term and without a motion filed by either 

party within 6 months of the original judgment. We disagree.

At the outset, we note Charles Sargent asserts that the 

January 5, 2017, order was a final judgment disposing of 

all of the claims of the case and that because Pohlmeier 

does not assign any errors related to that order, she has 

waived any challenge to that order on appeal. The January 

5 order struck Pohlmeier’s counterclaim but did not rule on 

her motion to vacate the default judgment, as evidenced by 

Pohlmeier’s allegations contained in her motion to alter or 

amend. Thus, because the motion to vacate remained outstanding, the January 5 order was not a final order from 

which Pohlmeier could appeal. The district court did not rule 

on the motion to vacate until October, that ruling being the 

order from which this appeal was taken. The present appeal 

is therefore Pohlmeier’s first opportunity to raise issues 

related to the January 5 order. We now turn to the merits of 

Pohlmeier’s argument.

[4,5] In a civil case, a court has inherent power to vacate 

or modify its own judgments at any time during the term 

at which those judgments are pronounced, and such power 

exists entirely independent of any statute. In re Change of 

Name of Whilde, supra. The inherent power of a district court 

to vacate or modify its judgments or orders during term may 

also be exercised after the end of the term, upon the same 

grounds, upon a motion filed within 6 months after the entry 
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of the judgment or order. Neb. Rev. Stat. § 25-2001 (Reissue 

2016). Unless otherwise provided by order of the district 

court, a term of court begins on January 1 of a given year 

and ends on December 31 of that same year. Andersen v. 

American Family Mut. Ins. Co., 249 Neb. 169, 542 N.W.2d 

703 (1996).

Rules of Dist. Ct. of First Jud. Dist. 1-1 (rev. 2005) allows 

the judge in each county to set the terms of court, and we have 

found nothing in the record to reflect that the district court 

fixed a term of court other than the calendar year. Therefore, 

the district court in this case had the inherent power to modify 

a judgment or order during the same calendar year in which 

it was filed.

Pohlmeier argues that because the original order was 

entered in March 2016 and the modification order was filed 

in January 2017, the modification was made out of term. The 

Nebraska Supreme Court addressed this issue in Moackler 

v. Finley, 207 Neb. 353, 299 N.W.2d 166 (1980). There, the 

trial court entered a default judgment against the defendant 

in February 1979. On June 26, the defendant moved to set 

aside and vacate the default judgment. The trial court’s term 

ended on June 29. Thus, the order setting aside and vacating 

the default judgment filed on July 12 was entered in the new 

term of court.

On appeal, the plaintiff argued that the trial court abused 

its discretion when it vacated the default judgment in a term 

of court beyond that in which the judgment was entered. 

The Supreme Court noted that a court has inherent power to 

vacate or modify its own judgments at any time during the 

term in which those judgments are pronounced, and such 

power exists entirely independent of any statute. Id. The court 

also observed that it is equally clear that § 25-2001 specifies 

in which instances the district court has the power to vacate 

or modify its own judgments or orders after the term has been 

adjourned. Moackler v. Finley, supra. Thus, the issue before 

the court was whether the district court loses its jurisdiction 
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to vacate an order when the term ends, if the motion to vacate 

was made during the term in which the judgment was rendered and none of the grounds for vacation exist pursuant to 

§ 25-2001. Moackler v. Finley, supra. In resolving that question, the Supreme Court held that the district court retains 

the authority to rule upon a motion to vacate if the motion 

was made within the original term. Id. In reaching this decision, the Supreme Court relied upon Neb. Rev. Stat. § 24-310 

(Reissue 2016), which provided then, as it does now, that upon 

any final adjournment of the court, all business not otherwise 

disposed of shall stand continued generally. The Supreme 

Court determined that once a motion is made and has not yet 

been ruled upon, the motion is pending, and when the term is 

adjourned, that pending motion cannot be other than a matter 

“‘not otherwise disposed of.’” Moackler v. Finley, 207 Neb. 

at 357, 299 N.W.2d at 168. Therefore, the court retains jurisdiction by law to modify its previous order. Id.

In the present case, the term of court ran from January 1 

through December 31, 2016. Default judgment was entered 

in March, and the motion to vacate was filed in November. 

Although the district court did not rule on the motion until 

January 2017, the motion remained pending at the end of the 

court’s term, and thus, the court retained jurisdiction to rule 

on the motion in the following term. It therefore permissibly 

entered the order in January 2017 modifying the March 2016 

order pursuant to its inherent authority. Accordingly, we find 

no merit to Pohlmeier’s argument to the contrary.

Finally, as to this issue, Pohlmeier argues that § 25-2001 

does not apply because the March 2016 order was not a judgment and no motion to vacate was filed within 6 months of 

entry of the order as required by § 25-2001. We agree with 

Pohlmeier that § 25-2001 does not control the outcome here, 

except to the extent that it recognizes a district court’s inherent power to vacate or modify its judgments or orders during 

the term in which they are entered. Section 25-2001 provides 

the circumstances under which a district court may vacate or 
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modify a judgment or order after the end of the term in which 

the judgment or order was entered. But because a court retains 

jurisdiction to rule on a pending motion to vacate after the 

term has ended, reliance upon § 25-2001 is not necessary. 

For the sake of completeness, we also note that § 25-2001 

recognizes a court’s inherent power to vacate or modify its 

judgments or orders. Therefore, even though the March 2016 

order was not a final judgment because it did not dispose 

of Pohlmeier’s counterclaim, it was an order of the court, 

and thus, the district court had the authority to modify it in 

January 2017.

Objection to Confirmation of Sale.

Pohlmeier argues that the district court erred in overruling 

her objection to the confirmation of the sale. We conclude that 

we lack jurisdiction over this issue.

The district court entered a default judgment in favor of 

Charles Sargent, and a writ of execution was issued in May 

2016. A sale of the property was completed on October 3, 

and on October 6, Charles Sargent filed a motion asking the 

district court to confirm the sale. On November 1, Pohlmeier 

filed an objection to the confirmation of the sale. The district 

court overruled the objection in the October 26, 2017, order. 

The court never ruled on Charles Sargent’s motion to confirm 

the sale, but we note that Charles Sargent agreed that because 

the writ of execution was issued upon a nonfinal judgment, 

the sale could not be confirmed and a new sale would have to 

be held.

[6] The writ of execution and sale are postjudgment proceedings over which we do not have jurisdiction because, 

although a motion to confirm the sale was filed, it was never 

ruled upon. The only ruling related to the confirmation of sale 

is the overruling of Pohlmeier’s objection to the confirmation 

of sale. An order overruling a motion to deny confirmation 

of a judicial sale and to set the sale aside is not a final or 

reviewable order. See County of Lancaster v. Schwarz, 152 
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Neb. 15, 39 N.W.2d 921 (1949). Therefore, the district court’s 

decision overruling the objection to the confirmation of sale 

is not final and appealable, and as a result, we do not have 

jurisdiction over this issue.

Motion for Sanctions.

Pohlmeier asserts that the district court erred in issuing 

sanctions improperly and failing to set aside those sanctions. 

Her argument is twofold: (1) Neb. Ct. R. Disc. § 6-337 (rule 

37) does not allow the imposition of sanctions without a prior 

motion to compel, and (2) she did not receive procedural due 

process because she was not given notice of the motion for 

sanctions. She does not argue that in the hierarchy of available sanctions, the imposition of a default judgment was too 

severe. See Hill v Tevogt, 293 Neb. 429, 879 N.W.2d 369 

(2016). To the extent Pohlmeier is arguing that the court erred 

in denying her motion to vacate on the two bases asserted, we 

reject her arguments as set forth below.

[7-10] Nebraska’s courts, through their inherent judicial 

power, have the authority to do all things necessary for the 

proper administration of justice. In re Interest of Zachary 

D. & Alexander D., 289 Neb. 763, 857 N.W.2d 323 (2015). 

Here, the district court entered a default judgment against 

Pohlmeier as a sanction for failing to respond to discovery. 

The main purpose of the discovery process is to narrow the 

factual issues in controversy so that the trial is efficient and 

economical. Hill v. Tevogt, supra. The discovery process 

helps the litigants conduct an informed cross-examination and 

avoid tactical surprise, a circumstance which might lead to 

a result based more on legal maneuvering than on the merits of the case. Id. If the parties fall short of their discovery 

obligations, rule 37 allows the court to sanction them. Hill v. 

Tevogt, supra.

Sanctions under rule 37 serve several purposes. See In re 

Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). 

First, they punish a litigant or counsel who might be inclined 
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to frustrate the discovery process. Id. Second, they deter those 

who are tempted to break the rules. Id. Finally, they prevent 

parties who have failed to meet their discovery obligations 

from profiting from their misconduct. Id.

In relevant part, rule 37 provides:

(b) Failure to Comply with Order.

. . . .

(2) Sanctions by Court in Which Action is Pending. If 

a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may 

make such orders in regard to the failure as are just, and 

among others the following:

(A) An order that the matters regarding which the order 

was made or any other designated facts shall be taken to 

be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to 

support or oppose designated claims or defenses, or prohibiting him or her from introducing designated matters 

in evidence;

(C) An order striking out pleadings or parts thereof, or 

staying further proceedings until the order is obeyed, or 

dismissing the action or proceeding or any part thereof, 

or rendering a judgment by default against the disobedient party;

. . . .

(d) Failure of Party to Attend at Own Deposition or 

Serve Answers to Interrogatories or Respond to Request 

for Inspection. If a party . . . fails

. . . .

(2) To serve answers or objections to interrogatories 

submitted under Rule 33, after proper service of the 

interrogatories[,]

(3) . . . the court in which the action is pending on 

motion may make such orders in regard to the failure 

as are just, and among others it may take any action 
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authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.

Pohlmeier relies upon rule 37(b) to argue that the sanction 

“clearly exceeded [the] Court’s jurisdiction” because Charles 

Sargent never moved to compel the discovery responses, and 

therefore, there was no court order with which she failed to 

comply. Brief for appellant at 15. However, aside from rule 

37(b), the court may sanction a party under rule 37(d), despite 

the absence of a prior discovery order. Hill v. Tevogt, 293 Neb. 

429, 879 N.W.2d 369 (2016). If a party fails to serve answers 

to interrogatories, the court may issue a sanction that is “just,” 

see rule 37(d)(3), including “rendering a judgment by default 

against the disobedient party,” see rule 37(b)(2)(C). Thus, no 

prior court order is required before the court may sanction a 

party for its failure to answer interrogatories.

[11] In addition, a court has inherent power to sanction. 

This court has previously held that where there is no court 

order regarding discovery under rule 37, the exclusion of 

evidence “may be sustained as an exercise of a trial court’s 

inherent powers.” Schindler v. Walker, 7 Neb. App. 300, 310, 

582 N.W.2d 369, 377 (1998). In Schindler v. Walker, we 

recognized that a district court’s inherent powers include the 

broad discretion to make discovery and evidentiary rulings 

conducive to the conduct of a fair and orderly trial. Therefore, 

contrary to Pohlmeier’s assertions, the court did not exceed 

its jurisdiction by imposing a sanction without a prior order 

to compel discovery, and the court did not err in denying her 

motion to vacate on this ground.

Pohlmeier also asserts that she was never served with the 

motion for sanctions and that therefore, the March 10, 2016, 

order violated her constitutional right to procedural due process because she was not given notice and the opportunity to 

be heard.

At the hearing on Pohlmeier’s motion to vacate, she offered 

no evidence in support of her motion or evidence establishing that she never received the motion for sanctions. And the 
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evidence presented at the hearing established that the clerk 

of the district court sent to Pohlmeier personally copies of 

the January 11, 2016, orders allowing Pohlmeier’s counsel 

to withdraw and granting her additional time to respond to 

discovery. The certificate of service for the order dated March 

10, 2016, entering default judgment against Pohlmeier, also 

reveals that it was sent to Pohlmeier personally.

Even if Pohlmeier received none of these filings in the mail 

as she claims, it is clear that she was personally served on 

August 10, 2016, with the writ of execution, and thus, she was 

aware at that time that a judgment had been entered in this 

matter against her and that the property was to be sold. Yet, 

she did nothing to attempt to vacate the judgment at that time 

or postpone the sale or participate in any way in the proceedings. It was not until November 1 that Pohlmeier filed anything in the district court. As a result, we reject Pohlmeier’s 

argument that she was denied procedural due process, and 

the court did not err in denying her motion to vacate for 

this reason.

Prejudgment Interest.

When the district court entered default judgment against 

Pohlmeier, it awarded Charles Sargent judgment in the 

amount of $27,498.38 plus interest as pled in the amended 

complaint. The January 5, 2017, order reentered judgment 

in the same amount, including the interest. Pohlmeier argues 

that the court should not have awarded prejudgment interest, 

because the claim was not liquidated. We decline to address 

this argument.

[12] After the default judgment was entered, Pohlmeier 

filed a motion to vacate the default judgment. She never filed 

a motion related to the amount of the judgment; rather, her 

subsequent motion to alter or amend asked the court to set 

aside the January 5, 2017, order because it was entered out 

of term. And while she argued at the hearing on the motion 

to alter or amend that prejudgment interest should not have 
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been included, it was not a basis upon which she filed her 

initial motion to vacate. An appellate court will not consider 

an issue that was not presented to or passed upon by the trial 

court, because a trial court cannot commit error in resolving 

an issue never presented and submitted to it for disposition. 

Upper Republican NRD v. Dundy Cty. Bd. of Equal., 300 Neb. 

256, 912 N.W.2d 796 (2018). Because Pohlmeier failed to 

properly raise the issue of prejudgment interest to the district 

court, we decline to address the issue now.

CONCLUSION

For the foregoing reasons, we affirm the order of the district court.

Affirm