Gruenewald v. Waara

Decision Date26 August 1988
Docket Number86-780,Nos. 86-779,s. 86-779
Citation428 N.W.2d 210,229 Neb. 619
PartiesAlvin GRUENEWALD and Bud's Flying Service, Ltd., A Nebraska Corporation, Appellants, v. William A. WAARA and Louis Minkoff, Appellees. William A. WAARA and Louis Minkoff, Appellees, v. BUD'S FLYING SERVICE, LTD., A Nebraska Corporation, and El Marc Air, Inc., A Nebraska Corporation, Appellants.
CourtNebraska Supreme Court

Syllabus by the Court

1. Pleadings: Final Orders: Appeal and Error. While the granting of a plea in bar is final and appealable, denial of such a plea is not final and appealable.

2. Summary Judgment: Final Orders: Appeal and Error. While the granting of a summary judgment which fully disposes of a case is final and appealable, the denial of a summary judgment is not final and appealable.

3. Jurisdiction: Final Orders: Appeal and Error. The Nebraska Supreme Court acquires no jurisdiction in the absence of a judgment or final order in the court from which an appeal is taken.

4. Foreign Judgments: Jurisdiction: States. A judgment rendered by a sister state court which had jurisdiction is to be given full faith and credit and has the same validity and effect in this state as in the state rendered.

5. Foreign Judgments: Jurisdiction: Presumptions: Collateral Attack. While it is presumed that a foreign court rendering a judgment had jurisdiction over the parties, a foreign judgment can be collaterally attacked by evidence that the rendering court was without such jurisdiction.

6. Statutes: Presumptions: States. Where the law of a sister state is not presented, it is presumed to be the same as the law of Nebraska.

7. Service of Process: Notice. While the investigation required to determine the address at which a copy of the process served upon a statutory agent is to be mailed to the party sued does not require the use of all possible or conceivable means of discovery, it does require such an inquiry as a reasonably prudent person would make in view of the circumstances, and must extend to those places where information is likely to be obtained and to those persons who, in the ordinary course of events, would be likely to know the address of the party sued.

8. Due Process. The opportunity to be heard is a fundamental aspect of due process.

9. Notice. Notice can be considered adequate only if it is transmitted in a manner which, at a minimum, has a reasonable certainty of resulting in actual notice.

10. Service of Process: Notice. Whether a statutory agent was provided with addresses at which the mailing of process was reasonably certain to result in notice to the party sued is a question of fact.

11. Appeal and Error. The finding of a trial judge sitting without a jury is to be treated as if it were a verdict and will not be set aside unless clearly wrong.

12. Appeal and Error. In a law action tried without a jury, the Nebraska Supreme Court will not reweigh the evidence but will consider the trial judge's disposition in a light most favorable to the successful party and resolve evidentiary conflicts in favor of that party, which party is entitled to every reasonable inference deducible from the evidence.

13. New Trial: Evidence. Newly discovered evidence is not a ground for a new trial where exercise of due diligence before the trial court would have produced it.

Barry L. Hemmerling, of Jeffrey, Hahn, Hemmerling & Wade, P.C., Lincoln, for appellants.

Noyes W. Rogers, of Leininger, Grant, Rogers & Maul, Columbus, for appellees.

BOSLAUGH, CAPORALE, and GRANT, JJ., and BUCKLEY, District Judge, and COLWELL, District Judge, Retired.

CAPORALE, Justice.

These consolidated appeals arise out of the unsuccessful effort in the first case, No. 86-779, to register a foreign judgment and an as yet incomplete effort in the second case, No. 86-780, to determine the ownership and status of liens claimed on certain aircraft.

More particularly, in the first case plaintiffs-appellants, Alvin Gruenewald and Bud's Flying Service, Ltd., a Nebraska corporation, seek to register a default judgment obtained in Texas against the defendants-appellees, William A. Waara and Louis Minkoff. In their appeal to this court, Gruenewald and Bud's Flying Service assign a number of errors which combine to assert that the trial judge, sitting without a jury, initially erred by finding that the Texas judgment was not entitled to registration and further erred by refusing to grant a new trial because of newly discovered evidence. For the reasons detailed later in this opinion, we affirm the judgment of the trial judge.

In the second case the plaintiffs-appellees, Waara and Minkoff, seek a determination that the defendants-appellants, Bud's Flying Service and El Marc Air, Inc., a Nebraska corporation, have no ownership or lien interests in certain aircraft. Bud's Flying Service and the then defendant Gruenewald, who apparently is no longer a party in this case, filed a plea in bar, asserting, in essence, that the default judgment which is the subject of the first case precludes the maintenance of this suit against them. The trial judge overruled the plea and refused to grant a new trial. This appeal followed. While it is clear that an order sustaining the plea would have had the effect of precluding the maintenance of Waara and Minkoff's suit, Schuster v. Douglas, 156 Neb. 484, 56 N.W.2d 618 (1953), and therefore would have been final, the order overruling the plea is not final, for the presently unsuccessful parties may ultimately prevail following a trial on the merits. The matter is analogous to the granting and denial of motions for summary judgment; our cases treat the granting of a summary judgment which fully disposes of a case as final and appealable, e.g., Hines v. Pollock, 229 Neb. 614, 428 N.W.2d 207 (1988), but hold that the denial of a summary judgment is not final and appealable, e.g., Krueger v. Zarley, 229 Neb. 203, 425 N.W.2d 893 (1988). Since this court acquires no jurisdiction in the absence of a judgment or final order in the court from which an appeal is taken, the appeal in this second case must be, and hereby is, dismissed. W & K Farms v. Hi-Line Farms, 226 Neb. 895, 416 N.W.2d 10 (1987); McCook Equity Exch. v. Cooperative Serv. Co., 223 Neb. 197, 388 N.W.2d 811 (1986); Neb.Rev.Stat. § 25-1911 (Reissue 1985); Neb.Ct.R. of Prac. 4A(1)b (rev. 1986).

We thus return our attention to the first case and begin by noting that the action is brought pursuant to the provisions of Nebraska's version of the Uniform Enforcement of Foreign Judgments Act, Neb.Rev.Stat. §§ 25-1587 et seq. (Reissue 1985). As such, it is a statutory proceeding at law, Lubin v. Lubin, 144 Cal.App.2d 781, 302 P.2d 49 (1956), and reviewable in accordance with the rules applicable to law actions.

The judgment at issue is based upon a petition which alleges that Waara and Minkoff were believed to be residents of Michigan, that each was engaged in business in the State of Texas, that neither maintained a regular place of business in that state, and that, not being required to do so, neither had designated an agent upon whom service of process might be made. On March 22, 1983, a judgment was rendered awarding Gruenewald and Bud's Flying Service the sum of $696,774 from Waara and the sum of $150,000 from Minkoff. The judgment also declared that a certain purported sale of an aircraft to Waara was fraudulent and thus void.

A judgment rendered by a sister state court which had jurisdiction is to be given full faith and credit, U.S. Const. art. IV, § 1, and has the same validity and effect in this state as in the state rendered, Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472 (1975). Thus, Texas law is to be used to determine whether the Texas court had jurisdiction of Waara and Minkoff when it entered the default judgment. While it is presumed that a foreign court rendering a judgment had jurisdiction over the parties, a foreign judgment can be collaterally attacked by evidence that the rendering court was without such jurisdiction. Olson v. England, 206 Neb. 256, 292 N.W.2d 48 (1980).

The Texas law as presented to the trial judge is found in Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon). The article provides in relevant part:

Sec. 3. Any ... non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such ... non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such ... non-resident natural person is a party or is to be made a party.

....

Sec. 5. Whenever process against a ... non-resident natural person is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a statement of the name and address of the home or home office of the non-resident. Upon receipt of...

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  • State v. Hansen
    • United States
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    ...procedure to a criminal DUI prosecution. As such, the State argues that Hansen's situation is more analogous to Gruenewald v. Waara, 229 Neb. 619, 428 N.W.2d 210 (1988). In that case, the defendants filed a plea in bar alleging that a default judgment in one civil case precluded maintenance......
  • DeVaux v. DeVaux
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    ...diligence would have produced the evidence. Miles v. Box Butte County, 241 Neb. 588, 489 N.W.2d 829 (1992); Gruenewald v. Waara, 229 Neb. 619, 428 N.W.2d 210 (1988); Reilly v. First Nat. Bank & Trust Co., 220 Neb. 443, 370 N.W.2d 163 (1985). A motion for new trial on the grounds of newly di......
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    ...77 (2009) ; Olson v. Palagi , 266 Neb. 377, 665 N.W.2d 582 (2003).29 See, Big John’s Billiards , supra note 18; Gruenewald v. Waara , 229 Neb. 619, 428 N.W.2d 210 (1988).30 Gillpatrick , supra note 12.31 Id . See Kilgore , supra note 28.32 Gillpatrick , supra note 12.33 White v. New Hampshi......
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