Colman v. Colman Foundation, Inc.
| Decision Date | 12 October 1977 |
| Docket Number | No. 41126,41126 |
| Citation | 258 N.W.2d 128,199 Neb. 263 |
| Parties | Clyde COLMAN et al., Appellee, v. COLMAN FOUNDATION, INC., et al., Appellees. Appeal of Lutheran Family and Social Service of Nebraska, Inc., Intervener(two cases). COLMAN FOUNDATION, INC., et al., Appellees, v. Clarence MEYER, Attorney General, Frank Adams, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The interest required for intervention as a matter of right is a direct and immediate legal interest of such a character that the intervener will either lose or gain by the direct operation and legal effect of the judgment.
2. The possibility that a charitable organization might share in the assets of another charity is not a sufficient interest to support intervention as a matter of right in a proceeding to liquidate the charity and distribute its assets.
Thomas J. Culhane of Erickson, Sederstrom, Johnson & Fortune, Omaha, for intervener-appellant.
Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Gary G. Thompson, Beatrice, Ronald R. Brackle, Fairbury, for appellees.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
The Colman Foundation, Inc., is a charitable trust which was established under the will of Andrew H. Colman who died in 1932. From 1933 until 1956, the Foundation operated an orphanage for protestant children at Diller, Nebraska, in accordance with the terms and conditions of the will. In 1956 the trustees determined that it was impractical to continue operation of the orphanage and discontinued its operation.
In 1974 this action was commenced to liquidate the foundation and distribute the assets of the trust to Nebraska Children's Home Society, Martin Luther Home Society, Inc., Epworth Village, Inc., and Child Saving Institute. The action was consolidated with a separate action brought by the heirs of Andrew H. Colman who claimed the assets on the theory of a resulting trust. On March 8, 1976, the trial court found that the heirs of Andrew H. Colman had no interest in the assets of the foundation; that the proceedings for liquidation of the foundation and distribution of its assets were governed by section 21-1954, R.R.S.1943; and that a further trial should be had regarding the proposed plan of distribution.
On April 29, 1976, the Lutheran Family and Social Service of Nebraska, Inc., filed a motion for leave to intervene and a petition of intervention in the action. The petition alleged that the intervener was a nonprofit corporation engaged in providing food, shelter, and care to protestant orphan children in Nebraska; and that it should be permitted to share in the distribution of the assets of the foundation.
The trial court found that the intervener did not allege such a direct and immediate legal interest in the litigation as would authorize or permit intervention and dismissed the petition in intervention. The intervener has appealed.
Intervention as a matter of right is governed by section 25-328, R.R.S. 1943. The interest required for intervention as a matter of right is a direct and immediate legal interest of such a character that the intervener will either lose or gain by the direct operation and legal effect of the judgment. City of O'Neill v. Consumers Public Power Dist., 179 Neb. 773, 140 N.W.2d 644. An indirect, remote, or conjectural interest in the result of the suit is not enough.
In a proceeding under the Nebraska Nonprofit Corporation Act a court of equity has broad powers as to how the assets of the corporation shall be distributed. § 21-1954, R.R.S.1943. There is no provision in the act for intervention in the proceeding by other charitable organizations seeking some share in the distribution.
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In re Interest of Destiny S.
...We have recognized an equitable intervention procedure separate from that outlined in the statutes. Colman v. Colman Foundation, Inc., 199 Neb. 263, 258 N.W.2d 128 (1977) (holding trial court may, independent of statute, allow intervention as matter of discretion); State ex rel. City of Gra......
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In re Change of Name of Davenport
...or conjectural interest in the result of a suit is not enough to establish intervention as a matter of right. Colman v. Colman Foundation, Inc., 199 Neb. 263, 258 N.W.2d 128 (1977). A person seeking to intervene in an action under § 25-328 must allege facts showing that he or she possesses ......
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State v. Erica J. (In re Interest Enyce J.)
...N.W.2d 736 (2011).42 In re Interest of Destiny S., supra note 17.43 See, Jeffrey B. v. Amy L., supra note 4; Colman v. Colman Foundation, Inc., 199 Neb. 263, 258 N.W.2d 128 (1977) ; State ex rel. City of Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962) ; 59 Am.Jur.2d Parties § 14......
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Estate of DeVoss, Matter of, 90-1076
...on error, with some deference given to the district court's discretion. This is the rule we adopt. See Colman v. Colman Found., Inc., 199 Neb. 263, 264-65, 258 N.W.2d 128, 129 (1977) (intervention granted by statute reviewed on error; intervention independent of statute reviewed for abuse o......