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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 763

Cite as 289 Neb. 763

In re Interest of Zachary D. and Alexa

children under 18 years of ag

Nebraska Department of Health and

Services, appellant, v. Zachary 

and Alexander D., appell

___ N.W.2d ___

Filed January 2, 2015. No. S-14-263.

1. Contempt: Appeal and Error. In a civil contempt proceeding where a party 

seeks remedial relief for an alleged violation of a court order, an appellate court 

employs a three-part standard of review in which (1) the trial court’s resolution 

of issues of law is reviewed de novo, (2) the trial court’s factual findings are 

reviewed for clear error, and (3) the trial court’s determinations of whether a 

party is in contempt and of the sanction to be imposed is reviewed for abuse 

of discretion.

2. Courts: Contempt. Nebraska’s courts, through their inherent judicial power, 

have the authority to do all things necessary for the proper administration of justice. This authority includes the power to punish for contempt which should be 

used sparingly, but is incident to every judicial tribune.

3. Courts: Constitutional Law: Contempt. The power to punish for contempt is 

derived from a court’s constitutional power, without any expressed statutory aid, 

and is inherent in all courts of record.

4. Juvenile Courts. Separate juvenile courts and county courts sitting as juvenile 

courts are courts of record.

5. Courts: Contempt. Neb. Rev. Stat. § 25-2121 (Reissue 2008) provides that every 

court of record shall have the power to punish by fine or imprisonment actions 

that are in contempt of court.

6. Contempt: Words and Phrases. When a party to an action fails to comply with 

a court order made for the benefit of the opposing party, such act is ordinarily civil contempt, which requires willful disobedience as an essential element. 

“Willful” means the violation was committed intentionally, with knowledge that 

the act violated the court order.

7. Contempt: Proof. Outside of statutory procedures imposing a different standard, 

it is the complainant’s burden to prove civil contempt by clear and convincing evidence.

8. Evidence: Words and Phrases. Clear and convincing evidence means that 

amount of evidence which produces in the trier of fact a firm belief or conviction 

about the existence of a fact to be proved.

9. Contempt. The collateral bar rule requires that a party may not, as a general rule, 

violate a court order and raise the issue of its unconstitutionality collaterally as a 

defense in a contempt proceeding.

Appeal from the Separate Juvenile Court of Douglas County: 

Christopher Kelly, Judge. Affirme
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764 289 NEBRASKA REPORTS

Marcie Bergquist, Special Assistant Attorney General, of 

Department of Health and Human Services, for appellant.

Patrick A. Campagna, Britt H. Dudzinski, and A. Jill Stigge, 

Senior Certified Law Student, of Lustgarten & Roberts, P.C., 

L.L.O., for appellees.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Heavican, C

INTRODUCTION

The separate juvenile court of Douglas County found the 

Department of Health and Human Services and Nebraska 

Families Collaborative (NFC) in contempt of court. The department appeals. We affirm.

FACTUAL BACKGROUND

In April 2005, Zachary D. and Alexander D. were adjudicated in Greeley County, Nebraska, as juveniles under Neb. 

Rev. Stat. § 43-247(3)(a) (Reissue 2004) and removed from 

their mother’s care and custody. Parental rights as to Zachary 

and Alexander were terminated in October 2006. Zachary 

was eventually adopted, apparently by his grandmother, but 

Alexander remained in foster care.

Alexander has been diagnosed with attention deficit hyperactivity disorder, oppositional defiance disorder, and posttraumatic stress disorder. In addition, Alexander has borderline 

intellectual functioning and suffers from the effects of fetal 

alcohol syndrome. Alexander was 3 years old when he was 

removed from his mother’s care; at the time of the hearing 

in this case, he was 12 years old. According to the record, 

Alexander has been placed in at least 17 different foster placements with 12 different families, and additionally has been 

hospitalized six times for a total of 73 days and has spent 

a year in a day treatment program, 18 months in two different residential treatment centers, and over 6 months in a 

group home. As such, it has been difficult to find placements 

for Alexander.
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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 765

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Alexander’s case was eventually moved to the Douglas 

County Separate Juvenile Court. In Douglas County, the department contracts with NFC for case management services.

On or around September 18, 2012, after his case was moved 

to Douglas County, Alexander was placed in a program with 

Envisions of Norfolk, Inc. (Envisions), located in Norfolk, 

Nebraska. At this facility, Alexander was provided one-onone care. According to Alexander’s NFC caseworker, locating 

this facility and program for Alexander took a “substantial” 

amount of time. The juvenile court ordered that Alexander 

remain in the Envisions program until further order of the 

court. The record suggests that Alexander was doing well in 

this program.

However, in late September or early October 2013, 

Alexander’s caseworker became aware that NFC and Envisions 

were involved in licensing negotiations. Though not entirely 

clear from the record, it appears that NFC’s contract with the 

department required these programs to be licensed as foster care placements, but none of the programs were actually 

licensed as such.

In any event, Alexander’s caseworker did not alert the 

guardian ad litem, the county attorney, or the juvenile court 

of these ongoing negotiations. At some point in early October, 

NFC began contacting other foster care providers to look for 

placements for Alexander in the event that he was removed 

from his Envisions placement. Again, neither the caseworker, 

nor anyone else from NFC, alerted any of the stakeholders that 

other providers were being contacted. According to the caseworker, she made an “oversight” that was not “malicious” and 

explained that she did not contact anyone at first, because the 

move to find other providers was “Plan B” and there were no 

plans to change Alexander’s placement.

A meeting with the caseworker, guardian ad litem, and other 

stakeholders was held on October 18, 2013. The caseworker 

did not inform anyone at the meeting of the ongoing negotiations or NFC’s ongoing search for another placement. The 

caseworker testified that she did not do so because at that time, 

Alexander’s placement was not “in jeopardy.”
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On October 21, 2013, Envisions informed NFC that it did 

not wish to pursue licensure as a foster care placement. In 

addition, Envisions noted that the daily rate being offered it 

for Alexander’s care was inadequate, because it provided less 

than a one-half staffing position, when Alexander required 

one-on-one care. As such, Envisions gave notice that it was 

terminating its services to Alexander on November 1. Though 

the caseworker was informed of this development, she did not 

notify any of the stakeholders that Alexander’s placement at 

Envisions was to end.

Negotiations continued between NFC and Envisions, and 

originally a plan was in place for Alexander to continue at 

Envisions until November 30, 2013. But this plan fell through, 

apparently due to NFC’s failure to pay Envisions in a timely 

manner. On October 29, Envisions reaffirmed that Alexander 

would need to be removed from the program on November 1. 

It was only then that the caseworker notified the guardian ad 

litem and the county attorney of the impending move.

Alexander was moved into a new foster home on November 

1, 2013. The guardian ad litem filed an application for 

contempt against the department and NFC on October 30. 

Alexander’s new placement was approved by the juvenile court 

on November 4.

Following a hearing on the contempt application, the juvenile court found the department and NFC in contempt and 

ordered them to pay a fine of $5,000 or purge the contempt 

by (1) preparing and distributing “a written policy providing that it initiate and have immediate contact with the children’s Guardians ad Litem, the Deputy County Attorney, as 

well as all case professionals, whenever a child’s placement 

is threatened by disruption for any reason,” and (2) preparing 

and distributing

a written policy which prohibits the deletion or destruction of email and/or hard copy correspondence between 

case managers, their supervisors, utilization management 

personnel, and placement providers for minor children, 

while a case is open and pending before the Juvenile 

Court and for no less than six months following case closure and termination of the Court’s jurisdiction.
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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 767

Cite as 289 Neb. 763

The basis for this second policy was the deletion by 

Alexander’s caseworker of e-mails relating to Alexander and 

his change in placement.

The department appeals.

ASSIGNMENTS OF ERROR

On appeal, the department assigns, restated and consolidated, that the juvenile court erred in (1) finding clear and 

convincing evidence to hold the department in contempt 

and (2) sentencing the department on the contempt finding, 

because the court’s sentence was a violation of the separation 

of powers doctrine.

STANDARD OF REVIEW

[1] In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which 

(1) the trial court’s resolution of issues of law is reviewed de 

novo, (2) the trial court’s factual findings are reviewed for 

clear error, and (3) the trial court’s determinations of whether 

a party is in contempt and of the sanction to be imposed is 

reviewed for abuse of discretion.1

ANALYSIS

Contempt.

In its first assignment of error, the department contends 

that the juvenile court erred in finding it to be in contempt 

of court. The department argues that there was no evidence 

to show that its violation of the court’s order was willful and 

that, moreover, the evidence showing contempt was not clear 

and convincing.

[2-5] We have held that Nebraska’s courts, through their 

inherent judicial power, have the authority to do all things 

necessary for the proper administration of justice.2 This 

authority includes the power to punish for contempt which 

1 Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).

2 In re Interest of Samantha L. & Jasmine L., 284 Neb. 856, 824 N.W.2d 

691 (2012).
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768 289 NEBRASKA REPORTS

should be used sparingly,3 but is incident to every judicial 

tribune.4 It is derived from a court’s constitutional power, 

without any expressed statutory aid, and is inherent in all 

courts of record.5 Separate juvenile court and county courts 

sitting as juvenile courts are courts of record.6 And Neb. Rev. 

Stat. § 25-2121 (Reissue 2008) further provides that “[e]very 

court of record shall have power to punish by fine or imprisonment” actions that are in contempt of court.

[6] When a party to an action fails to comply with a court 

order made for the benefit of the opposing party, such act is 

ordinarily civil contempt, which requires willful disobedience 

as an essential element.7 “Willful” means the violation was 

committed intentionally, with knowledge that the act violated 

the court order.8

[7,8] Outside of statutory procedures imposing a different 

standard, it is complainant’s burden to prove civil contempt by 

clear and convincing evidence.9 Clear and convincing evidence 

means that amount of evidence which produces in the trier of 

fact a firm belief or conviction about the existence of a fact to 

be proved.10

Initially, we reject the department’s assertion that the juvenile court’s failure to specifically use the term “willful” is relevant. While it is true that the court did not use that term, it did 

make oral findings that clearly indicated its belief that NFC’s 

actions were intentional and, thus, willful.

The department directs us to the statement of the juvenile 

court made in open court wherein the court noted that it did 

3 See State ex rel. Collins v. Beister, 227 Neb. 829, 420 N.W.2d 309 (1988), 

overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279 

Neb. 661, 782 N.W.2d 848 (2010).

4 See In re Interest of Samantha L. & Jasmine L., supra note 2.

5 Id.

6 Id.

7 Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).

8 Id.

9 Id.

10 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011).
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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 769

Cite as 289 Neb. 763

not “think that the Department or NFC acted with the intention to lose that placement or that they concocted some scheme 

to not have the left hand understand what the right hand was 

doing within the agency so that the placement was lost.” But 

this shows only that the juvenile court did not believe that the 

department acted maliciously or with a bad motive. Such a 

showing is not required to find contempt; rather, the violation 

need only be intentional.

We also conclude that there was clear and convincing evidence to support the juvenile court’s contempt finding. Neb. 

Rev. Stat. § 43-285(3) (Cum. Supp. 2012) provides in part that 

the department

shall file a report and notice of placement change with the 

court and shall send copies of the notice to all interested 

parties at least seven days before the placement of the 

juvenile is changed from what the court originally considered to be a suitable family home or institution to some 

other custodial situation.

The court’s September 10, 2013, order provided that 

Alexander “shall remain as placed in the Envisions Program, 

until further Order of the Court.” Yet, Alexander was moved 

on November 1, 2013, without further order of the court. The 

juvenile court’s order approving the emergency placement was 

not entered until November 4. The evidence plainly shows 

that without notice or permission, Alexander was moved on 

November 1, in violation of the court’s order and without the 

notice required by § 43-285(3).

Moreover, if the guardian ad litem, county attorney, and 

juvenile court had been notified in a timely manner, the juvenile court could have approved a change in placement prior 

to the date set by Envisions to move Alexander. And, though 

speculative, it is possible that such notification and possible 

intervention by the guardian ad litem or others could have 

prevented or delayed yet another move for a child who has 

already been in so many different placements. In the end, we 

agree with the guardian ad litem’s observation that, apparently, 

the department felt it was easier to beg for forgiveness than to 

ask for permission.
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We review the juvenile court’s factfinding for clear error, 

and we find none. We further find no abuse of discretion in 

the juvenile court’s finding of contempt. The department’s first 

assignment of error is without merit.

Sentence.

The department also assigns that the juvenile court erred 

in its sentence for contempt. The department and NFC were 

ordered to prepare and distribute to all departmental and NFC 

employees a written policy regarding notifications in the event 

of a possible change in placement, and also to prepare and 

distribute a written policy regarding the retention of electronic 

records. The department argues that such was in violation of 

the doctrine of separation of powers, because by so ordering, 

the judicial branch has infringed upon the executive branch’s 

ability to administer itself, and further argues that if the coercive part of the sentence fails, the remaining sanction is punitive, which is impermissible.

[9] As an initial matter, the guardian ad litem argues that 

the collateral bar rule prevents this court from considering the 

department’s constitutional argument. That rule requires that “a 

party may not, as a general rule, violate a court order and raise 

the issue of its unconstitutionality collaterally as a defense in 

a contempt proceeding.”11 But on these facts, we find the collateral bar rule inapplicable. The department has preserved its 

constitutional argument by appealing from the order which it 

contends is unconstitutional.

Still, we find no merit to the department’s contention. The 

crux of the department’s argument is that the doctrine of separation of powers is violated when the judicial branch imposes 

an order on the executive branch requiring it to institute and 

distribute a particular policy, because such a policy amounts to 

a rule or regulation and it is solely the function of the executive 

branch to promulgate its own rules and regulations.

But the policies which the juvenile court has ordered the 

department and NFC to create are not rules and regulations. 

11 Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 733, 559 N.W.2d 740, 748 

(1997).
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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 771

Cite as 289 Neb. 763

Rules and regulations are defined by Neb. Rev. Stat. § 84-901(2) 

(Reissue 2014) as

any rule, regulation, or standard issued by an agency, 

including the amendment or repeal thereof whether with 

or without prior hearing and designed to implement, interpret, or make specific the law enforced or administered 

by it or governing its organization or procedure. Rule 

or regulation shall not include . . . rules and regulations 

concerning the internal management of the agency not 

affecting private rights, private interests, or procedures 

available to the public . . . .

The two policies at issue here are akin to those that concern “the internal management of the agency.” Moreover, 

while these policies certainly relate to statutes governing the 

juvenile court process, they are not “designed to implement, 

interpret, or make specific the law enforced or administered 

by it or governing its organization or procedure.” Rather, these 

policies are intended to provide notice to all departmental and 

NFC employees of certain requirements of state law relating to 

notice of changes in placement and records review and retention policies.

For example, the first notice referenced by the juvenile 

court in its purge plan—regarding notification to be given to 

the stakeholders in the event of a threatened change in placement—in part refers to § 43-285(3), which provides that the 

department must “file with the court a report stating the location of the juvenile’s placement and the needs of the juvenile” 

at least every 6 months, and shall also file a report and notice 

of placement change with the court and “all interested parties at least seven days before the placement of the juvenile is 

changed from what the court originally considered to be a suitable family home or institution.”

In addition, the failure of the department to notify stakeholders that Alexander might be moved could interfere with the 

guardian ad litem’s ability to carry out his or her powers and 

duties. A guardian ad litem is to

make every reasonable effort to become familiar with the 

needs of the protected juvenile which (i) shall include 

consultation with the juvenile within two weeks after 
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the appointment and once every six months thereafter 

and inquiry of the most current caseworker, foster parent, or other custodian and (ii) may include inquiry of 

others directly involved with the juvenile or who may 

have information or knowledge about the circumstances 

which brought the juvenile court action or related cases 

and the development of the juvenile, including biological 

parents, physicians, psychologists, teachers, and clergy 

members [and is also]

. . . responsible for making recommendations to the 

court regarding the temporary and permanent placement 

of the protected juvenile.12

And the second notice referenced in the juvenile court’s 

purge plan—regarding records retention—is necessitated both 

by the specifics of the juvenile code, which define confidential records and allow access to those records by order of 

the court,13 and by more general state law, which states that 

such records should not be “mutilated, destroyed, transferred, 

removed, damaged, or otherwise disposed of, in whole or in 

part, except as provided by law.”14

Given the specific and narrow reach of the notices ordered 

by the juvenile court, we find no abuse of discretion in the 

sanction imposed and, thus, find no error. The department’s 

second assignment of error is without merit.

CONCLUSION

The juvenile court’s finding of contempt and sanction 

is affirmed.

Affirmed

12 Neb. Rev. Stat. § 43-272.01(d) and (f) (Cum. Supp. 2014).

13 Neb. Rev. Stat. § 43-2,109 (Reissue 2008).

14 Neb. Rev. Stat. § 84-1213 (Reissue 2014).

Stephan, J., dissentin

I respectfully dissent. While I do not condone the actions 

of the department or NFC in this case, I cannot agree with the 

majority that those actions constituted civil contempt.
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IN RE INTEREST OF ZACHARY D. & ALEXANDER D. 773

Cite as 289 Neb. 763

As the majority correctly notes, willful disobedience of a 

court order is an essential element of civil contempt.1 To establish this element, it must be shown by clear and convincing 

evidence that the party acted intentionally and with knowledge 

that the act was in violation of a court order.2 The starting point 

of the analysis should be the language of the order allegedly 

violated. Here, the guardian ad litem alleged that the department and NFC were in contempt for violating two provisions 

of the juvenile court’s September 10, 2013, order. The first 

provision stated: “IT IS HEREBY ORDERED that the minor 

child is to remain in the custody of the . . . department . . . for 

adoption planning and placement consistent with the Court’s 

permanency objective. Alexander . . . shall remain as placed 

in the Envisions Program, until further Order of the Court.” 

The second provision stated: “IT IS FURTHER ORDERED 

that the . . . department [and NFC] shall secure and present to 

all parties a list of all medical, mental health, educational and 

therapeutic services required by the minor child, Alexander 

. . . .” I note that when the application for contempt was filed 

on October 30, Alexander remained in the placement ordered 

by the court; he was not removed from the Envisions program until November 1, when the program would no longer 

keep him.

In its contempt order, the juvenile court found a violation 

of only that part of its prior order which required Alexander to 

remain as placed in the Envisions program until further order 

of the court. The court found this directive was violated, “due 

solely to financial dealings and misdealings by [NFC],” by 

delaying a payment which would have enabled Alexander’s 

placement in the Envisions program to continue until the end 

of November. It further found that the department and NFC 

1 See, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012); Smeal 

Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), 

disapproved on other grounds, Hossaini, supra note 1.

2 See, Hossaini, supra note 1; Klinginsmith v. Wichmann, 252 Neb. 889, 567 

N.W.2d 172 (1997), overruled on other grounds, Smeal Fire Apparatus 

Co., supra note 1.
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“failed to keep a critical party, the child’s Guardian ad Litem, 

apprised of developments as the situation, and the child’s 

placement, unraveled.”

The record certainly reflects that the circumstances which 

led to the termination of the placement could have been managed in a more efficient and effective manner by the department and NFC. When NFC first learned on October 21, 2013, 

that Envisions had decided to terminate the placement because 

of ongoing payment and licensing issues, it did not immediately notify the guardian ad litem. However, the NFC caseworker specifically denied that NFC formulated any plan to 

move Alexander without court approval and testified that the 

“plan all along” was for him to remain at Envisions. As of 

October 25, NFC believed it had negotiated for Alexander to 

remain at Envisions at least until the end of November. When 

that agreement collapsed on October 29, because “internal 

hiccups” within NFC delayed payment to Envisions, the NFC 

caseworker contacted the guardian ad litem and informed him 

of the situation. On the same date, internal correspondence 

between NFC employees noted that “Alex is court ordered to 

be at Envisions” and that it would be necessary to secure “a 

new order to move him.” In the end, it was clearly Envisions, 

not the department or NFC, which made the decision that 

Alexander would no longer be allowed to remain in the placement after November 1.

It is clear from the record that mistakes were made. But 

that does not mean that there was a willful violation of the 

placement order by either the department or NFC.3 I find no 

clear and convincing evidence in the record that either the 

department or NFC took any action, or refrained from taking 

some action, with the knowledge that by doing so, they were 

violating the placement order. And, apparently, neither did the 

juvenile court. It made no specific finding of willful disobedience of the placement order. The majority acknowledges this, 

but concludes that such a finding was unnecessary in light of 

“oral findings” made by the juvenile court.

3 See Klinginsmith, supra note 2.
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As to whether a specific finding of willful disobedience is 

required, we have said that “[t]o find a party in contempt in 

juvenile court, there must be a finding of willful violation of a 

juvenile court’s order.”4 This record contains no such finding, 

either written or oral. The oral finding to which the majority 

apparently refers is the following comment by the juvenile 

court at the sentencing hearing:

I don’t think that the Department or NFC acted with 

the intention to lose that placement or that they concocted 

some scheme to have the left hand not understand what 

the right hand was doing within the agency itself so that 

the placement was lost. You had somebody from the 

agency work with the placement and reach some type 

of an accord contingent on money being paid. The other 

hand and the agency did not get the money paid, and the 

placement came back and said, it’s over, and that was it. 

And all of a sudden the agency itself, NFC, [the department], the guardian ad litem, and the Court were faced 

with a situation where we had a child who needed services who was out on the street, so to speak. All of that 

could have been avoided.

This is a finding of bureaucratic malfeasance, but not willful disobedience of a court order. Any doubt on that point 

is dispelled by the actual language of the contempt order, to 

which the majority does not refer. Specifically, the juvenile 

court found that the department, “through its lack of supervision of its contracted agent, [NFC], is in direct violation of 

the Court’s September 10, 2013 Court Order affecting the 

child’s Placement, and is therefore in contempt of Court.” 

(Emphasis supplied.)

While I do not take issue with the factual finding of the 

department’s “lack of supervision,” I think the juvenile court’s 

conclusion that failure to supervise constitutes civil contempt 

is incorrect as a matter of law. The placement order in question is silent with respect to the department’s responsibility 

to supervise NFC, and thus a failure to supervise would not 

4 See In re Interest of Thomas M., 282 Neb. 316, 325, 803 N.W.2d 46, 54 

(2011).
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itself violate any provision of the order. A court cannot hold 

a person or party in contempt unless the order or consent 

decree gave clear warning that the conduct in question was 

required or proscribed.5 A fair inference can be drawn that 

had the department supervised NFC more diligently, or notified the guardian ad litem of the problems with the placement 

at an earlier date, the decision of Envisions to terminate the 

placement might have been averted or delayed. But that is 

not the issue. Rather, the question is whether the department 

intentionally took or refrained from taking some action with 

the knowledge that its conduct would violate the court order. 

While the department’s failure to supervise NFC may have 

been careless or negligent, there is nothing in the record to 

suggest the department acted intentionally and with knowledge that its conduct would violate the placement order.

The majority attempts to buttress its position by observing 

that the department did not file a report and notice of placement change in the time period required by Neb. Rev. Stat. 

§ 43-285(3) (Cum. Supp. 2012). While that may be true, the 

statute is not incorporated in the placement order and the juvenile court made no reference to a violation of this specific statute in its contempt order. More important, there is no evidence 

that the department’s delay in giving statutory notice was an 

intentional act done in knowing violation of the placement 

order. To the contrary, the record reflects that up until October 

29, 2013, when negotiations between NFC and Envisions broke 

down and NFC notified the guardian ad litem that the placement would end on November 1, the department and NFC 

believed that the placement would continue at least through the 

end of November.

Because the essential element of willfulness was not proved, 

the department’s failure to properly supervise NFC or its failure to give the guardian ad litem earlier notice of the dispute 

with Envisions could not constitute civil contempt as a matter of law. I would, therefore, reverse, and vacate the contempt order.

Connolly, J., joins in this disse

5 Smeal Fire Apparatus Co., supra note 1.