KBR Rural Public Power Dist. v. Kidder, 35670

CourtSupreme Court of Nebraska
Citation177 Neb. 228,128 N.W.2d 687
Decision Date29 May 1964
Docket NumberNo. 35670,35670
PartiesKBR RURAL PUBLIC POWER DISTRICT, Appellee, v. M. C. KIDDER, Appellant.

Syllabus by the Court

1. In an appeal from the county court the district court is without jurisdiction to try a counterclaim for an amount in excess of the jurisdiction of the county court.

2. In an appeal to the Supreme Court from the district court, on a judgment on an appeal from the county court, the appellate jurisdiction of the Supreme Court is limited

to the issues presented to the county court and the appellate jurisdiction of the district court.

3. Jurisdiction of the subject matter of an action cannot be conferred on a tribunal not empowered to entertain jurisdiction by acquiescence or consent.

Dean L. Donoho, Valentine, for appellant.

William S. Dill, Quigley & Quigley, Valentine, Arthur A. Weber, Bassett, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

This is an appeal from the sustaining of a motion for summary judgment on a counterclaim filed by the defendant in the district court.

We shall refer to the KBR Rural Public Power District as the power district. We shall refer to the defendant as Kidder.

On April 4, 1960, the power district filed an action against Kidder in the county court of Cherry County to recover for electric service in the sum of $578.71 with interest and costs. On May 2, 1960, Kidder filed his answer thereto in which he pleaded 'not guilty.' On May 24, 1960, after hearing, the county court entered judgment for the power district in the amount of $578.71 and costs amounting to $19.75. Kidder appealed to the district court.

On June 27, 1960, the power district filed its petition on appeal in the district court for Cherry County. On July 19, 1961, Kidder filed an answer and counterclaim. By the counterclaim Kidder asserted for the first time in the litigation that the power district in 1955 constructed transmission lines across his lands without condemning an easement therefor to his damage in the amount of $3,000 for which he prayed judgment. On July 26, 1961, the power district filed its reply denying the allegations of the counterclaim and asserting that the construction of the transmission lines was in accordance with an agreement with Kidder and that he is estopped from asserting damages therefor. On September 12, 1961, Kidder filed a general denial to the power district's answer to the counterclaim.

On September 21, 1961, the power district filed a dismissal of its action against Kidder acknowledging the receipt of $608.18 as full satisfaction of its claim for electrical service. The dismissal was without prejudice to Kidder's rights on his counterclaim.

On March 21, 1962, trial to a jury was commenced. At the close of the evidence the trial court found that reversible error had been committed during the course of the trial and declared a mistrial. On September 13, 1963, the power district moved for a summary judgment. On the hearing of the motion for summary judgment the power district offered in evidence a transcript of the evidence taken at the mistrial in the district court in support of its motion for summary judgment. The trial court sustained the motion and this appeal resulted.

In the instant case the issues in the county court consisted of the power district's claim of $578.71 for electrical service furnished and a general denial filed thereto, and nothing more. In the district court Kidder filed a counterclaim for $3,000 on an issue completely foreign to the issues in the county court. It will be noted also that the counterclaim was for an amount in excess of the jurisdiction of the county court without any indication that the amount in excess of the county court's jurisdiction was waived. No objection to the variance in the issues in the district court from those in the county court was made. The jurisdiction of the district court in the instant case was appellate and not original. The issues on appeal are limited to those raised in the county court. On appeal from the district court to this court in such a case the issues are likewise limited to those raised in the county court.

'When an appeal is taken from the county court to the district court, the case is to be tried in the appellate court upon the issues that were presented in the court from which the appeal was taken.' In re Estate of Shierman, 129 Neb. 230, 261 N.W. 155. 'A case must be tried in the district court upon appeal upon the issues tried in the lower court. This does not mean that no issuable fact can be pleaded in a petition in the district court that was not alleged in the bill of particulars in the lower court. If the identity of the cause of action is preserved in the petition it is sufficient.' Jacob North & Co. v. Angelo, on rehearing, ...

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2 cases
  • Lamell Lumber Corp. v. Newstress Intern.
    • United States
    • Vermont Supreme Court
    • August 31, 2007
    ...13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3522, at 60 (2d ed. 1984). See also KBR Rural Pub. Power Dist. v. Kidder, 177 Neb. 228, 128 N.W.2d 687, 689 (1964) (observing that Nebraska district court "is a court of general jurisdiction and, as such, its powers are lib......
  • Kidder v. Wright
    • United States
    • Nebraska Supreme Court
    • May 29, 1964
    ... ... State v. Platte Valley Public Power & Irr. Dist., 147 Neb. 289, 23 N.W.2d 300, 166 A.L.R. 1196. We ... ...

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