State ex rel. Bauersachs v. Williams

• Decision Date: 28 November 1983
• Docket Number: No. 82-834,82-834
• Citation: State ex rel. Bauersachs v. Williams, 215 Neb. 757, 340 N.W.2d 431 (Neb. 1983)
• Parties: STATE of Nebraska ex rel. Denise BAUERSACHS, Appellee, v. David WILLIAMS, Appellant.
• Court: Nebraska Supreme Court

Page 431

340 N.W.2d 431

215 Neb. 757

STATE of Nebraska ex rel. Denise BAUERSACHS, Appellee, v. David WILLIAMS, Appellant.

No. 82-834.

Supreme Court of Nebraska.

Nov. 28, 1983.

Syllabus by the Court

Jurisdiction: Venue: Waiver. Jurisdiction is the authority or power to decide a case. Venue is the site where the power to adjudicate is to be exercised. In the absence of statutory provisions to the contrary, an objection to venue can be waived.

Thomas J. Garvey of Hascall, Jungers & Garvey, Bellevue, for appellant.

Michael J. Pace, Deputy Sarpy County Atty., Papillion, for appellee.

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

SHANAHAN, Justice.

Denise Bauersachs (Denise) commenced filiation proceedings against David Williams (Williams) pursuant to Neb.Rev.Stat. §§ 13-101 et seq. (Reissue 1977). From a judgment of paternity and an order for support of the child, Williams appeals. We affirm in part, and in part reverse and remand for further proceedings.

Denise filed her petition in the District Court for Sarpy County, Nebraska, and alleged that Williams was the father of her child born on October 13, 1980, as defined by §§ 13-101 et seq. Williams entered a "voluntary appearance" in the proceedings. In his amended answer Williams denied the allegations of Denise's petition.

At trial Denise testified that from December 1979 to February 1980 she had dated only Williams and had intercourse with none but Williams during that time. A witness corroborated that Denise had dated only Williams. In her testimony Denise expressed an opinion that Williams was the father of the child and, further, stated that no other person could be the father of the child. When Denise informed Williams that she was pregnant, Williams offered her $300 and told her to get an abortion. A report received regarding results of paternity testing contained: "99.73% of the male population has been excluded by this testing. Mr. Williams has odds of 273 to one in favor of being the biological father [of the child]. This is a probability of paternity of 99.63%."

At commencement of the proceedings Denise and her child resided in Douglas County, Nebraska, in "subsidized housing." Denise was receiving assistance, namely, "ADC," from Sarpy County, Nebraska.

After Denise concluded her evidence, Williams rested his case.

Williams moved for dismissal of the proceedings "for lack of venue," and directed the court's attention to § 13-111, "A civil proceeding to establish the paternity of a child may be instituted in any district court of the district where the child is domiciled or found...."

The court overruled Williams' motion to dismiss, entered judgment of paternity regarding Williams and the child, and ordered Williams to pay $100 per month as support for the child.

Williams assigns three errors, namely, (1) the trial court did not have jurisdiction to enter any judgment in the proceedings, (2) the evidence was insufficient to establish paternity, and (3) there should have been an evidentiary hearing on the amount of support for the child.

" 'Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs, the authority to hear and determine both the class of actions to which the action before the court belongs and the particular question which it assumes to determine.' " Lewin v. Lewin, 174 Neb. 596, 599-600, 119 N.W.2d 96, 99 (1962), citing 21 C.J.S. Courts § 23 (1940).

Jurisdiction is the inherent power or authority to decide a case; venue is the place of trial of an action--the site where the power to adjudicate is to be exercised. See, Iselin v. La Coste, 147 F.2d 791 (5th Cir.1945); Arganbright v. Good, 46 Cal.App.2d 877, 116 P.2d 186 (1941); Stanton Trust & Savings B. v. Johnson, 104 Mont. 235, 65 P.2d 1188 (1937).

Williams' question concerning the proceedings relates to venue and not to jurisdiction in the strict sense of the term. District Courts in Nebraska have general jurisdiction regarding filiation proceedings under the provisions of §§ 13-101 et seq. The trial court had jurisdiction to adjudicate Williams' paternity of Denise's child. After commencement of the action in Sarpy County, Williams did not request transfer of the proceedings as provided by Neb.Rev.Stat. § 25-409 (Reissue 1979). Williams did not object to venue until conclusion of the evidence at trial. Unless prohibited by a venue statute, a defendant can waive the personal privilege to be sued in a particular county. See 92 C.J.S. Venue § 77 (1955). In the absence of the appropriate objection to venue or the timely motion to transfer the proceedings, Williams cannot now question venue of the proceedings in Sarpy County.

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