NE Code § 25-323 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-323 - Necessary parties; brought into suit; procedure.

25-323.  Necessary parties; brought into suit; procedure.The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.Any person whose negligence was or may have been a proximate cause of an accident or occurrence alleged by the plaintiff, other than parties who have been released by the plaintiff and are not subject to suit pursuant to section 25-21,185.11, may be brought into the suit by any party in the manner provided in section 25-331 or 25-705.Source   R.S.1867, Code § 46, p. 400;   R.S.1913, § 7604;   C.S.1922, § 8547;   C.S.1929, § 20-323;   R.S.1943, § 25-323;   Laws 1995, LB 411, § 1;  Laws 2002, LB 876, § 8. Annotations  1. Necessary parties 2. Unnecessary parties 3. Miscellaneous 1. Necessary parties Necessary parties are parties who have an interest in the controversy, and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their absence. Indispensable parties are parties whose interest is such that a final decree cannot be entered without affecting them, or that termination of controversy in their absence would be inconsistent with equity. Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017). This section imposes a duty on the court to require an indispensable party be added to the litigation sua sponte when one is absent and statutorily deprives the court of subject matter jurisdiction over the controversy absent the presence of all indispensable parties. Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017). The presumed father of a child conceived and born during the marriage to the child's mother is an indispensable party to a suit initiated by the putative biological father to establish his paternity and obtain custody of the child. Helter v. Williamson, 239 Neb. 741, 478 N.W.2d 6 (1991). The Code of Civil Procedure declares if a determination of the controversy cannot be had without the presence of the parties, the court must order them to be brought into the litigation. Koch v. Koch, 226 Neb. 305, 411 N.W.2d 319 (1987). Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a formal decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984). In an action involving the disbursement of county funds, the county has a great, if not exclusive, interest, and is a necessary party to the action. Shepoka v. Knopik, 197 Neb. 651, 250 N.W.2d 619 (1977). Lienholders were necessary parties but their claims having been paid subsequently, the refusal to order them added was error without prejudice. LaPuzza v. Prom Town House Motor Inn, Inc., 191 Neb. 687, 217 N.W.2d 472 (1974). Where validity of tax levy for nonresident high school tuition is attacked, all receiving high school districts are necessary parties. Werth v. Buffalo County Board of Equalization, 187 Neb. 119, 188 N.W.2d 442 (1971). When determination of a controversy cannot be had without the presence of new parties to the suit, the court should order them brought in. Whitaker v. Gering Irr. Dist., 183 Neb. 290, 160 N.W.2d 186 (1968). In case to determine title of United States to public land, where United States is not a party to the action, no judgment or decree which could be entered could be binding in any manner on United States. Summerville v. Scotts Bluff County, 182 Neb. 311, 154 N.W.2d 517 (1967). Where a determination of a controversy cannot be had without the presence of a new party, the court may order the new party brought into the suit. Midwest Laundry Equipment Corp. v. Berg, 174 Neb. 747, 119 N.W.2d 509 (1963). Beneficiaries of trust could be ordered by the court to be brought into the case as parties. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959). State was proper party to suit to reform deed. Rumbel v. Ress, 167 Neb. 359, 92 N.W.2d 904 (1958). Court should bring in new parties when controversy cannot be determined without their presence. Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956). In declaratory judgment proceeding, court should order all necessary parties brought in or refuse to enter judgment. Redick v. Peony Park, 151 Neb. 442, 37 N.W.2d 801 (1949). The court is only required to order new parties brought in when a determination of the controversy cannot be had without their presence. Dent v. City of North Platte, 148 Neb. 718, 28 N.W.2d 562 (1947). When the determination of a controversy cannot be had without the presence of new parties to the suit, the court should order them brought in. Cunningham v. Brewer, 144 Neb. 218, 16 N.W.2d 533 (1944). Court, on own motion, is authorized to make a necessary party defendant in equity suit. Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922). Court must order necessary new parties brought in. Phoenix Mutual Life Ins. Co. v. City of Lincoln, 87 Neb. 626, 127 N.W. 1069 (1910). Section does not prevent court ordering in necessary parties at any time. Brown v. Brown, 71 Neb. 200, 98 N.W. 718 (1904). Supreme Court may remand equity case to have necessary parties brought in. Smith v. Shaffer, 29 Neb. 656, 45 N.W. 936 (1890). Court will not decide rights of absent parties. Koenig v. Chicago, B. & Q. R. Co., 27 Neb. 699, 43 N.W. 423 (1889). The language of this section tracks the traditional distinction between the necessary and indispensable parties. Panhandle Collections v. Singh, 28 Neb. App. 924, 949 N.W.2d 554 (2020). The first clause of this section makes the inclusion of necessary parties discretionary when a controversy of interest to them is severable from their rights. The second clause, however, mandates that the district court order indispensable parties to be brought into the controversy. All persons interested in the contract or property involved in an action are necessary parties, whereas all persons whose interests therein may be affected by a decree in equity are indispensable parties. The absence of an indispensable party to a controversy deprives the court of subject matter jurisdiction to determine the controversy and cannot be waived. When it appears that all indispensable parties to a proper and complete determination of an equity cause were not before the court, an appellate court will remand the cause for the purpose of having such parties brought in. In re Trust Created by Augustin, 27 Neb. App. 593, 935 N.W.2d 493 (2019). 2. Unnecessary parties The stepfather of a child born out of wedlock is not an indispensable party in a filiation proceeding against the putative biological father for support. State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992). Department of Environmental Control and county zoning officials are not indispensable parties in a suit against a licensee for a solid waste disposal area where the suit is to enjoin against alleged violation of a county zoning ordinance. Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981). Court may determine rights between parties before it when it can be done without prejudice to rights of others or by saving their rights. Bailey v. McCoy, 187 Neb. 618, 193 N.W.2d 270 (1971). Lessee was not necessary party to complete determination of quo warranto suit between state and lessor. State ex rel. Johnson v. Conservative Savings & Loan Assn., 143 Neb. 805, 11 N.W.2d 89 (1943). Controversy could be determined without joinder of party who had sold interest in contract of purchase. Pollard v. Larson, 115 Neb. 136, 211 N.W. 998 (1927). In action for personal injuries, one who may be liable to defendant as indemnitor need not be made additional defendant. Kaplan v. City of Omaha, 100 Neb. 567, 160 N.W. 960 (1916). 3. Miscellaneous Fact that someone other than defendant operator owned property involved does not necessarily make the owner an indispensable party in action to abate nuisance. City of Omaha v. Danner, 186 Neb. 701, 185 N.W.2d 869 (1971). In mortgage foreclosure proceeding, court may determine controversy between parties as to ownership of land covered by the mortgage. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943). Cited in action in nature of creditor's bill to set aside certain conveyances. Robinson v. Williams, 136 Neb. 253, 285 N.W. 574 (1939). Purchaser of choses in action during pendency of suit may proceed in name of original plaintiff. Commercial Nat. Bank of Kearney v. Faser, 99 Neb. 105, 155 N.W. 601 (1915). Failure to dismiss for misjoinder of plaintiffs in equity is not prejudicial; court may decide rights between parties severally. Hamilton v. Allen, 86 Neb. 401, 125 N.W. 610 (1910). Plaintiff cannot complain because court did not order in party who might intervene. Gamble v. Wilson, 33 Neb. 270, 50 N.W. 3 (1891). Claim for damages for breach of warranty can be determined in replevin action. Smith v. Kinney, 32 Neb. 162, 49 N.W. 341 (1891).