Building Systems, Inc. v. Medical Center, Ltd.

• Decision Date: 08 April 1988
• Docket Number: 86-385,86-382,Nos. 86-381,86-384,86-383,s. 86-381
• Parties: BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee, v. MEDICAL CENTER, LTD., a Nebraska Limited Partnership, et al., Appellants. Raymond L. LEMKE, Appellant, v. BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee. William VENARD et al., Appellees, v. Yale F. TRUSTIN et al., Appellants. Yale F. TRUSTIN et al., Appellants, v. William VENARD et al., Appellees. BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee, v. TRUSTLAND COMPANY, a Partnership, et al., Appellants.
• Court: Nebraska Supreme Court

Page 773

421 N.W.2d 773

228 Neb. 168

BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee, v. MEDICAL CENTER, LTD., a Nebraska Limited Partnership, et al., Appellants.

Raymond L. LEMKE, Appellant, v. BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee.

William VENARD et al., Appellees, v. Yale F. TRUSTIN et al., Appellants.

Yale F. TRUSTIN et al., Appellants, v. William VENARD et al., Appellees.

BUILDING SYSTEMS, INC., a Nebraska Corporation, Appellee, v. TRUSTLAND COMPANY, a Partnership, et al., Appellants.

Nos. 86-381, 86-382, 86-383, 86-384, 86-385.

Supreme Court of Nebraska.

April 8, 1988.

Syllabus by the Court

1. Final Orders. A conditional order of dismissal to become effective in the future upon failure of a condition is wholly void as it does not perform in praesenti.

2. Courts: Judgments. Although the clerk of the district court is authorized to spread upon the court journal the proceedings had and relief granted by the court, and to that extent is responsible for entry of the judgment, such clerk has no authority to perform the judicial function of rendering a judgment.

Craig A. Knickrehm of Nelson & Harding, and Bruce H. Brodkey of Batt & Brodkey, Omaha, for appellants.

Walter M. Calinger, Omaha, for appellees.

HASTINGS, C.J., and WHITE, and FAHRNBRUCH, JJ., and WOLF and McGINN, District Judges.

HASTINGS, Chief Justice.

Appellants (hereinafter defendants) in these five cases have appealed from an order of the district court which vacated a previous purported order to dismiss the cases. We affirm.

Two of these cases have been pending in excess of 8 years. Summary judgment was entered in favor of the plaintiffs in June of 1981. We reversed and remanded with directions to permit the defendants to file amended answers and setoffs. See Building Systems, Inc. v. Medical Center, Ltd., 213 Neb. 49, 327 N.W.2d 95 (1982). The very little progression subsequent to the remand included discovery by way of plaintiffs' taking of Raymond L. Lemke's deposition on May 5, 1983.

Various progression letters were issued by the court administrator of the district court during 1984 and 1985. On November 12, 1985, plaintiffs' counsel was permitted to withdraw from the case and present counsel entered his appearance.

On November 19, 1985, a hearing was held on the defendants' motions to dismiss for lack of prosecution. The following entry was made: "This entry applies to 768/76, 823/210, 810/183, 823/86. Certif[icate] of readiness will be filed w/in 120 day [sic] or this case and those referred to above, by this entry, are dismissed (SAD)."

On February 24, 1986, plaintiffs filed various motions requesting that they be allowed to amend their pleadings, have a referee appointed, and consolidate for trial. On March 3, 1986, the defendants filed a motion to compel answers to interrogatories and a motion to require production of documents.

A hearing on plaintiffs' motions was originally scheduled for March 18, 1986 (within 120 days of the November 19, 1985, order), but defendants agreed to attempt to reschedule that hearing and consolidate it with one originally scheduled for March 13, 1986. Plaintiffs' attorney found it necessary to be out of town at that time, so the March 13 hearing had to be rescheduled. The court's baliff was contacted by the secretary for plaintiffs' counsel, but the court was no longer available for March 18. The first available date was April 22, 1986.

The cases were all dismissed on March 20, 1986, by entry of a dismissal by the clerk of the district court, apparently pursuant to rule 4K of the Rules of Practice for the Fourth Judicial District (rev. July 1985).

Rule 4K provides in pertinent part that in all civil cases not certified as ready for trial within the time frames prescribed by this rule, the court administrator shall give notice by mail to each counsel and/or each party that, within thirty (30) days from the date of the notice, the case must be certified as ready for trial, unless the Court by order extends the filing of the certificate to a specific date. If no certificate is filed within the prescribed time, the case will stand dismissed for lack of prosecution and the Clerk shall enter the dismissal....

(Emphasis supplied.) Counsel for the parties were notified of the dismissal the following day.

On April 16, 1986, a hearing was held on plaintiffs' consolidated motion to reinstate, filed April 10, 1986. The court held an in-chambers conference with counsel and stated:

Okay, my ruling is this. I am going to vacate my docket entry of November 19th. I am looking you in the eye and I am telling you that the spirit and specific language have now merged into this docket entry, and the docket entry will be the case will be certified for trial within 33 days or it will, by this entry, stand dismissed. And I want you, before you leave, to get a time for the trial of the case.

The subsequent docket entry, dated Friday, April 18, 1986, reads:

768-075 BUILDING SYSTEMS, INC., A NEBRASKA CORPORATION VS. MEDICAL CENTER, LTD., A NEBR. LIMITED PARTNERSHIP, ET AL

Order...