Federal Land Bank of Omaha v. McElhose

CourtSupreme Court of Nebraska
Citation384 N.W.2d 295,222 Neb. 448
Docket NumberNo. 85-154,85-154
PartiesThe FEDERAL LAND BANK OF OMAHA, a Corporation, Appellee, v. Gordon E. McELHOSE and Vlasta McElhose, Husband and Wife, Appellants, Ivadelle Sedivy et al., Appellees.
Decision Date04 April 1986

Syllabus by the Court

1. Judgments: Equity. The judgment of a court of equity is called a decree.

2. Jurisdiction: Time: Appeal and Error. The time within which an appeal must be taken is mandatory and must be met in order for an appellate tribunal to acquire jurisdiction of the subject matter.

3. Judgments. A judgment is the final determination of the rights of the parties.

4. Judgments. The rendition of a judgment is the act of the court, or a judge thereof, in pronouncing judgment, accompanied by the making of a notation on the trial docket.

5. Judgments. Failing a notation on the trial docket, a judgment is rendered when some written notation is made and filed in the records of the court.

6. Judgments. Where a second judgment in part contradicts an earlier judgment, the time for appeal from that portion of the second judgment which contradicts the earlier judgment, and that portion only, runs from the rendition of the second judgment.

7. Judgments: Courts. A trial court should limit itself to entering but one final determination of the rights of the parties in a case.

John Thomas, Omaha, for appellants.

Charles Caldwell, Omaha, for appellee Federal Land Bank.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Plaintiff-appellee, The Federal Land Bank of Omaha, a corporation, obtained two decrees foreclosing its mortgage upon land owned by the defendants-appellants, Gordon E. and Vlasta McElhose, husband and wife. In their appeal to this court the McElhoses assign as error the trial court's (1) inclusion in the second of its decrees a certain 80-acre parcel of land which had been exempted by the parties and had been excluded from the operation of the court's earlier decree, and (2) impliedly ruling in both decrees that the variable interest rate mortgage note the McElhoses executed was valid and enforceable. The bank asserts this court lacks jurisdiction to entertain the appeal because the McElhoses did not perfect it in time. We dismiss the appeal as to the trial court's first decree and affirm as modified as to its second decree.

In consideration of a $94,000 loan, the McElhoses executed and delivered to the bank a written promissory note which provided for a rate of interest which could vary in accordance with the bank's wishes. As a part of the same transaction and to secure the loan, the McElhoses executed and delivered to the bank a mortgage on approximately 598 acres of land in Knox County. Upon the McElhoses' default on the note, the bank brought this action against the McElhoses and other lienholders to foreclose the bank's mortgage and have it declared a first lien on the land.

The bank's petition excluded from its prayer, however, a certain 80-acre parcel of land, as the bank had previously released its mortgage thereon. During the course of the action, the other lienholders also excluded that 80-acre parcel from their various foreclosure proceedings against the McElhoses.

In their answer to the bank's petition, the McElhoses alleged that the unconscionability of a variable interest rate rendered the note void and unenforceable, and prayed for dismissal of the bank's action. The McElhoses also answered the cross-petitions of, and prayed for dismissal of the proceedings brought by, the other lienholders.

In announcing its decision on December 4, 1984, the trial court found that the McElhoses were in default of the bank's note and mortgage and that the bank had a first lien on the land described in its petition, save and except for the 80-acre parcel which it had previously released from operation of the mortgage. The decision also excluded the aforesaid 80-acre parcel from the liens decreed in favor of the other lienholders. On the same day as the decision was announced, it was typed on the court's trial docket.

On January 25, 1985, a more formal statement of its decision, entitled "Decree," was signed by the trial judge. This second decision does not exclude the 80-acre parcel from the operation of the various liens established in accordance with the trial court's decision as announced on December 4, 1984, but otherwise conforms with that earlier decision. No further notation was made on the trial docket concerning the January decision.

The McElhoses filed their notice of appeal on February 19, 1985.

We first address the bank's contention...

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28 cases
  • Jantzen, Application of
    • United States
    • Nebraska Supreme Court
    • February 4, 1994
    ...an appeal. Such time limits are jurisdictional. See, State v. Flying Hawk, 227 Neb. 878, 420 N.W.2d 323 (1988); Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986). Failure to appeal within the statutory requirements removes the jurisdiction of the case from the court. See, S......
  • State v. Brian F.
    • United States
    • Nebraska Supreme Court
    • May 16, 2014
    ...7.Neb.Rev.Stat. § 43–1412 (Cum.Supp.1996). 8. § 43–1412(1). 9.Id. 10. See id. 11. See id. 12. See id. 13. See Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986) (judgment of court of equity is called decree). 14.Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 ......
  • IN RE TT
    • United States
    • Nebraska Court of Appeals
    • December 8, 2009
    ...3 is identical, a fact which necessarily involves application of the continuing order doctrine detailed in Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986). In McElhose, the Nebraska Supreme Court held that when a court's order is already in place and a subsequent order me......
  • Synacek v. Omaha Cold Storage Terminals, Inc.
    • United States
    • Nebraska Supreme Court
    • January 20, 1995
    ...to the claimed future harm to itself, the better practice would have been to have entered but one judgment. See Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986) (trial court should limit itself to entering but one final determination of rights of III. FACTS Omaha Cold Stor......
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