Nelson v. Sioux City Boat Club

• Decision Date: 17 February 1984
• Docket Number: No. 82-766,82-766
• Citation: 344 N.W.2d 634,216 Neb. 484
• Court: Nebraska Supreme Court
• Parties: Gordon J. NELSON and Merrill K. Bishop, Appellants, v. SIOUX CITY BOAT CLUB, a corporation, et al., Appellees.

Page 634

344 N.W.2d 634

216 Neb. 484

Gordon J. NELSON and Merrill K. Bishop, Appellants, v. SIOUX CITY BOAT CLUB, a corporation, et al., Appellees.

No. 82-766.

Supreme Court of Nebraska.

Feb. 17, 1984.

Syllabus by the Court

1. Pleadings: Motions to Dismiss. A motion to dismiss is not allowable as a pretrial pleading.

2. Jurisdiction. The absence of subject matter jurisdiction may be raised by demurrer, or may be decided on a motion for summary judgment or by trial on the merits.

Norris G. Leamer, South Sioux City, for appellants.

Bruce A. Crary and Dennis R. Ringgenberg, Sioux City, Iowa, for appellees.

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

GRANT, Judge.

Plaintiffs, Gordon J. Nelson and Merrill K. Bishop, filed a quiet title action in the district court for Dakota County, Nebraska, alleging that they owned certain land in Dakota County and that they were in possession of such land. The defendants named in the petition were Sioux City Boat Club, a corporation (hereinafter Boat Club), David J. La Fleur, and all persons "having or claiming any interest in" the described land. What service of process was made after the filing of the petition is not shown in the record before us. As shown in the record, the only responsive pleading to the petition was filed by defendant Boat Club. In its answer Boat Club generally denied the allegations of the petition and alleged that the Boat Club owned certain described property in Union County, South Dakota, and that the land described in plaintiffs' petition constituted "accretions" to the South Dakota land owned by the Boat Club. Boat Club also filed a counterclaim alleging that it owned the same land described in plaintiffs' petition (which land defendant's counterclaim states is in Dakota County, Nebraska), and the Boat Club prayed that title be quieted in it.

On June 28, 1982, Boat Club filed a motion to dismiss "for want of jurisdiction ... over the subject matter." On the same day, Boat Club filed a motion to withdraw its counterclaim, asking the court "for an order withdrawing the counterclaim of the Defendant and separately docketing said counterclaim for trial at a later date."

On June 29, 1982, hearings were held on Boat Club's motion to dismiss. In the hearing, defendant Boat Club was procedurally treated as a plaintiff and, without objection, adduced its evidence and "rested." Plaintiffs then, acting as defendants, adduced evidence and "rested." Defendant Boat Club called six witnesses and plaintiffs called one witness. Thirty-four exhibits were offered. All testimony and exhibits were directed to the issue of whether the land in question was in South Dakota or Nebraska.

At this hearing, so far as the record shows, there were no other parties represented, although immediately before the hearings began an attorney was appointed as guardian ad litem, apparently for unknown defendants, incompetents, and persons in the military service.

Later, the court entered an order sustaining defendant's motion to dismiss and striking the petition.

Plaintiffs timely filed a motion for new trial, alleging, among other things, that "[t]he Defendant's motion to dismiss was not made at the proper time and the Court should not have considered the same at this stage in the proceedings." Plaintiffs' motion was overruled, and this appeal followed.

The case is disposed of simply. As stated in Blitzkie v. State, 216 Neb. 105, 106-07, 342 N.W.2d 5, 6 (1983), "The district court was correct in concluding that a motion to dismiss is not allowable as a pretrial pleading. Neb.Rev.Stat. § 25-803 (Reissue 1979). It was also correct in stating that an irregular pleading such as a motion to dismiss may sometimes be recognized as a demurrer if the parties by stipulation, or the court by rule of court, permits the same. State, ex rel. Johnson, v. Consumers Public Power District, 142 Neb. 114, 5 N.W.2d 202 (19...